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Brij Lal Gautam Vs. Parbati Devi - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtDelhi High Court
Decided On
Case NumberS.A.O. No. 338 of 1981
Judge
Reported inAIR1982Delhi314a; 22(1982)DLT201
ActsCode of Civil Procedure (CPC) - Order 8, Rule 8A; Evidence Act - Sections 73; Delhi Rent Control Act - Sections 39
AppellantBrij Lal Gautam
RespondentParbati Devi
Appellant Advocate V.K. Jain, Adv
Respondent Advocate Hari Shanker and ; V.K. Kapila, Advs.
DispositionAppeal allowed
Cases ReferredSarju Prashad Ram Deo Sahu (supra). In Gopi Trivedi v. Gokhoi Panda and Anr.
Excerpt:
.....questions arise in this appeal :1. whether the appellant had previously enjoyed the benefit under section 14(2) of the act ? 2. whether the appellant deposited rs. under these circumstances it cannot be said that the appellant-tenant ever enjoyed the benefit under section 14(2) of the act. the controller and the tribunal in the present case have also held that the appellant never enjoyed the benefit under section 14(2) of the act. nothing has been brought to my notice by the learned counsel for the respondent in support of the plea that the appellant had already enjoyed the said benefit......rep 409 it has been held that in cases where the appellate authority reverses the findings of the rent controller it is necessary that he should apply his mind to the several considerations which found favor with the rent controller. after going through the judgments of the controller and the tribunal i am of the view that it does not appear that the appellate authority did so in this case. in the present case it is clear that the tribunal did not take into consideration the oral evidence of the appellant and his witness regarding the receipt in question. in sardar bhagwant singh and anr. v. shri jagan nath and ors., : 12(1976)dlt150 it has been held that this court can interfere in second appeal if verbal evidence on record has been omitted from consideration. further learned counsel.....
Judgment:

Sultan Singh, J.

1. This second appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') by the tenant challenges the judgment and order of the Rent Control Tribunal dated 26th August 1981 directing him to deposit all arrears of rent from 1st November 1974 up to date at Rs 80/- per month within one month from the date of the said order and if the rent is deposited he would be deemed to have taken benefit of Section 14(2) of the Act and in default order of eviction would be deemed to have been passed against him. The Additional Controller by his judgment and order dated 19th August, 1980 had directed the appellant to deposit rent with effect from 1st May, 1980 at Rs. 80/- per month and dismissed the eviction petition filed by the respondent under Section 14(1)(a) of the Act.

2. Briefly the facts are that Parbati Devi respondent claimed eviction of the appellant, under Section 14(1)(a) of the Act alleging that he has been a tenant under her since 1st November, 1974 at Rs. 80/- per month, that a notice of demand dated 6th July, 1979 was served upon him requiring him to pay all arrears of rent for the period from 1st November, 1974 onwards at Rs. 80/- per month, that he neither paid not tendered any rent and thereforee he was liable to eviction. She also alleged that he was not entitled to benefit under Section 14(2) of the Act as according to her he had already availed of the same by order dated 20th December, 1978 of the Rent Control Tribunal in the earlier proceedings between the parties. The notice of demand was served on 11th July, 1979 and the eviction application was filedon 20th November, 1979. The appellant in his written statement pleaded that he was a tenant since October-November, 1973, that he deposited two months rent in court in Suit No. 33 of 1975, that a sum of Rs. 3360/- was paid in cash to the husband/attorney of the respondent on 1st June, 1979 that he had remitted Rs. 560/- and Rs. 480/- by money orders on 21st July, 1979 and 27th July, 1979 which were refused by the respondent that previously no order directing him to deposit rent under Section 15(1) of the Act was passed and that he had never enjoyed any benefit under Section 14(2) of the Act.

The following questions arise in this appeal :

1. Whether the appellant had previously enjoyed the benefit under Section 14(2) of the Act ?

2. Whether the appellant deposited Rs. 160/- as rent for two months in court.

3. Whether the appellant paid Rs. 3360/- in cash to the husband/ attorney of the respondent on 1st June, 1979.

4. What amount on account of rent was due to the respondent-landlady on the date of notice of demand i.e. 6th July, 1979.

5. Whether the appellant tendered Rs. 560/- and Rs. 480/- by money-orders dated 21st July, 1979 and 27th July, 1979 to the respondent. If so, to what effect

3. On 21st January, 1975 Parbati Devi-respondent had filed an eviction petition against one Dharam Bir Gupta and Brij Lal Gautam, the present appellant which was dismissed by the Additional Controller vide order dated 27th July, 1976 holding that Brij Lal Gautam, the present appellant was tenant in the premises and not Dharam Bir Gupta, under the respondent. A compromise however was arrived at an appeal before the Rent Control Tribunal on 20th December, 1978 wherein the present respondent made a statement accepting the appellant as the tenant under her with effect from 1st November, 1974 at Rs. 80/- per month and the appellant agreeing to pay all arrears of rent for the period from 1st November, 1974 at Rs, 80/-pcr month in eight equal monthly Installments. This order was passed by the Tribunal on the agreement of the parties. There was no order requiring the appellant-tenant to deposit rent within the meaning of Section 15(1) of the Act. In fact in the previous litigation there was no eviction application against the appellant on the ground of non-payment of rent. The order of the Tribunal dated 20th December, 1980 was not an order for deposit. Under these circumstances it cannot be said that the appellant-tenant ever enjoyed the benefit under Section 14(2) of the Act. The Controller and the Tribunal in the present case have also held that the appellant never enjoyed the benefit under Section 14(2) of the Act. Nothing has been brought to my notice by the learned counsel for the respondent in support of the plea that the appellant had already enjoyed the said benefit.

4. It is admitted by the counsel for the respondent that the appellant deposited a sum of Rs. 160/- under Section 27 of the Act in the office of the Controller on 28th February, 1975 as the rent for November and December, 1974.

5. The real dispute between the parties is whether the appellant paid Rs. 3360/- on 1st June, 1979 to the husband/attorney of the respondent-landlady. The Controller held that the said amount was paid but the Tribunal ravened the said finding. Learned counsel for the appellant submits that the judgment and order of the Rent Control Tribunal reversing the said finding of the Controller is contrary to law and that the judgment is perverse. Bua Ditta, husband of the landlady appeared as A. W. 1. He deposed, 'I did not receive any money order. Neither Parbati had received any amount or any money order since 20th December, 1978'. '.........As I did not receive any cash in the arrears of rent, I did not execute any receipt in favor of the respondent'. He has admitted that sometimes his hand troubles while writing and sometime not. He denied his signatures on the receipt for Rs. 3360/- dated 1st June, 1979 marked 'A'. He denied the suggestion that he had received Rs. 3360/- from the appellant and that signatures were obtained on the receipt Ex. R-1. As against this evidence the appellant-tenant appearing as R.W. 1 has deposed, 'I paid Rs. 3360/- on 1st June, 1979, in the presence of Joginder Dass. The receipt was scribed by Lala Joginder Dass. Bua Ditta signed the receipt Ex. R. 1 in my presence. Joginder Dass also signed in my presence.' In cross-examination he has stated that he took this amount as loan from his father-in-law. He denied that the signatures on Ex. R. 1 in dispute were forged by him and Joginder Dass. Joginder Dass, scribe of the receipt, appearing as R.W. 2 has deposed, 'Receipt Ex. R. 1 is in my hand and bears my signatures. Bua Ditta signed the receipt in my presence. I scribed this receipt at the instance of the attorney of the petitioner. A sum of Rs. 3360/-was paid in my presence to Bua Ditta by the respondent and the receipt was scribed in token of payment of the said amount'. In cross-examination he has deposed that Bua Ditta has been known to him since 1971-72. He denied that he had forged the signatures of Bua Ditta on the said receipt. He has further deposed that he scribed the receipt at the instance of Bua Ditta. Ex. R. 1 is the receipt dated 1st June, 1979 showing payment of Rs. 3360/- by the appellant to Bua Ditta in terms of the order of Sbri P. K. Bahri, Rent Control Tribunal dated '20-1-78'. The month of 'January' the receipt appears to be a typing mistake. It is the admitted case of the parties that only litigation between the parties was previously decided by Shri P.K. Bahri, Rent Control Tribunal on 20th December, 1978. The receipt further mentions that the payment is towards Installments as ordered by the Tribunal. The Controller while discussing the evidence of the parties on the question of payment and execution of the receipt Ex. R. 1 accepted the version of the appellant corroborated by his witness Joginder Dass R.W. 2, scribe of the receipt Ex. R. 1 and rejected the bold statement of the general attorney of the landlady denying the receipt of the amount and execution of the receipt. The Controller also compared the signatures of Bua Ditta, attorney of the respondent on the receipt Ex. R. 1 with his admitted signatures, on the replication and he also took into consideration the admission by Bua Ditta that his hand troubles at the time of signing. In my view the Controller after discussing the entire evidence on record and taking all the circumstances in the case correctly concluded that a sum of Rs. 3360/- was paid by the appellant to the respondent's attorney against receipt dated 1st June, 1979 Ex. R. 1. The Rent Control Tribunal however reversed this finding on the ground that no allegation was made by the appellant in the written statement, that he ever obtained receipt showing payment. According to the Tribunal this was an important fact which should have found place in the pleading. On account of the absence of such a plea in the written statement the Tribunal observed that the receipt was not a genuine document and thereforee held that the amount of Rs. 3360/- was not paid by the appellant. Learned counsel for the appellant submits that the approach of the Tribunal was patently erroneous. His submission is that the appellant in his written statement has sufficiently pleaded payment of Rs. 3360/- on 1st June, 1979 to the attorney of the respondent-landlady. He submits that the receipt in support of the said plea was a piece of evidence and as such it was not to be pleaded. He further submits that he filed the original receipt along with photostat copy thereof before the Controller according to hit directiong. The written statement was filed on 25th February, 1980 on which date the parties were directed to file documents and to admit or deny the same on the next date of hearing i.e. 5th March, 1980. On the adjourned date i.e. 5-3-1980 the appellant had filed the original receipt of Rs. 3360/- along with photostat copy. Order 6 Rule 2(1) of the Code of Civil Procedure (hereinafter referred to as 'the Code') requires that every pleading shall contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defense but not the evidence by which they are to be proved. The material fact in the case whether the sum of Rs. 3360/- was paid by the appellant on 1st June, 1979. This fact was to be proved by evidence and the evidence is the original document showing the payment by the appellant. This document is receipt Ex. R. 1 which stands duly proved on the record. In my view the material fact was to plead the fact of payment of Rs. 3360/- on 1st June, 1979 by the appellant to the respondent's attorney. The execution of the receipt for Rs. 3360/- on 1st June, 1979 was not a material fact but it was only an evidence to prove the material fact. Order 6 Rule 2(1) of the Code prohibits the pleading of evidence. All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defense, are material facts. Thus the payment was properly pleaded by the appellant in the written statement and it was not necessary to refer to the particulars of the document. Learned counsel for the appellant further submits that the plea of payment was taken by him in the written statement which was filed on 25th February, 1980 and that the original receipt Ex. R. 1 dated 1st June, 1979 was filed on record on 5th March, 1980 and the evidence of the parties was recorded on 4th July, 1980 and 30th July, 1980 and no prejudice was caused to the respondent. In view of Order 6 Rule 2 of the Code I am of the view that the appellant has pleaded all material facts in support of his defense. In any case when the original receipt Ex. R. 1 was produced on record as ordered by the Controller, mere absence of reference to such a document in the written statement does not constitute any variation between the pleading and proof. The respondent was entitled to lead evidence to disprove the receipt but excepting his bald statement no evidence was produced by the attorney/husband of the respondent.

6. Learned counsel for the respondent however submits that as the Code of Civil Procedure is applicable to proceedings before the Controller, the appellant ought to have filed the original receipt Ex. R. 1 along with the written statement on 25th February, 1980. He refers to Order 8 Rule 8A of the Code as inserted by Act 104 of 1976 with effect from 1st February, 1977. This rule reads as under :

'8A (1) Where a defendant bases his defense upon a document in his possession or power, he shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document or a copy thereof, to be filed with the written statement.

(2) A document which ought to be produced in court by the defendant under this rule, but is not so produced,shall not, without the leave of the court, be received in evidence on his behalf at the hearing of the suit.

(3) Nothing in this rule shall apply to documents produced,--

(a) for the cross-examination of the plaintiff's witness, or

(b) in answer to any case set up by the plaintiff subsequent to the filing of the plaint, or

(c) handed over to a witness merely to refresh his memory.'

His argument is that as the original receipt Ex. R. 1 was not produced along with the written statement the same cannot be taken into consideration. He further submits that no leave of the court was obtained under Order 8 Rule 8A(2) of the Code. I do not agree. As already stated the written statement was filed on 25th February, 1980 when the Controller directed the parties to file the documents on the adjourned date i.e. 5th March, 1980. The documents were filed. The original receipt was also filed. Impliedly it means that the Controller granted leave to the appellant to file the original receipt and other documents on 5th March 1980.

7. Learned counsel for the appellant further submits that the finding of the Tribunal is perverse and contrary to evidence on record. He thereforee submits that this court in second appeal has jurisdiction to reverse the same. He also submits that a bare look on the disputed receipt and its comparison with the signatures of the attorney on the replication goes to show that the receipt was in fact signed by the attorney as held by the Controller. He submits that this court is also entitled to make comparison of the two signatures as was done by the Supreme Court in Fakhruddin v. The State of Madhya Pradesh, AIR 1967 S.C. 1326. In that case the Supreme Court in appeal called for the writings for making a comparison thereof. The Judges compared the disputed writing at the instance of the appellant's counsel. I have also compared the signatures of Bua Ditta, attorney of the respondent with his admitted signatures on the replication dated 5th March, 1980 and I am of the view that the signature on the disputed receipt tally with the signatures on the replication.

8. Learned counsel for the appellant submits that the Rent Control Tribunal reversed the finding of the Controller without applying its mind to the several consideration which found favor with the Controller. It is correct that the Controller took into consideration the entire evidence on record and discussed the same but the tribunal merely on the ground that the fact of execution of the receipt showing the payment of Rs. 3360/- was not incorporated in the written statement held the said document to be not a genuine document. On the other hand the Controller compared the disputed signatures with the admitted writings. He took into consideration the evidence of the appellant and his witness. His witness deposed that the payment of Rs. 3360/- was made that the receipt was scribed by him, that Bua Ditta, attorney of the respondent signed the receipt in his presence. The Tribunal did not discuss any of these matters at all. In Deo Chand and Ors. v. Shiv Ram and Ors., : (1969)3SCC330 it has been observed that if some vital evidence was left out on a wrong appreciation of the legal position the findings would vitiate and could be assailed in the second appeal and that the High Court was within rights in reconsidering the evidence and reaching a conclusion about the oral evidence. In Shri Arjan and Ors. v. Shri Jai Pal and Ors., 1974 Rent Cont Rep 409 it has been held that in cases where the appellate authority reverses the findings of the Rent Controller it is necessary that he should apply his mind to the several considerations which found favor with the Rent Controller. After going through the judgments of the Controller and the Tribunal I am of the view that it does not appear that the appellate authority did so in this case. In the present case it is clear that the Tribunal did not take into consideration the oral evidence of the appellant and his witness regarding the receipt in question. In Sardar Bhagwant Singh and Anr. v. Shri Jagan Nath and Ors., : 12(1976)DLT150 it has been held that this court can interfere in second appeal if verbal evidence on record has been omitted from consideration. Further learned counsel submits that the finding regarding payment of Rs. 3360/- was based on the receipt Ex. R. 1 besides the oral evidence consisting of the appellant and his witnesses on one side and the statement of the respondent's attorney on the other side and that the decision hinges on the credibility of the witnesses. The Controller did not place any reliance upon the statement of the respondent's attorney. His argument is that there was nothing on the record to displace the opinion of the Controller and that the Rent Control Tribunal ought not to have interfered with the finding of the Controller on the question of fact. In Sarju Pershad Ram Deo Sahu v. Jwaleshwari Pratap Narain Singh, 1951 S. C. 120 it has been observed as under :

'The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact'.

9. In Shri Raghbir Saran v. Radhey Sham and Ors., 1971 R. C. J. 485 this court held that even in the case of a conflict in the oral evidence of the parties unsupported by any other evidence or circumstances, when the probabilities are found to be equally balanced the appellate court would not normally interfere easily with the findings of the trial court and when the trial court supports one act of oral evidence with some authentic documentary evidence, the appellate court will have little justification to interefere with the findings of fact of the trial court. This court referred with advantage to the observations of the Supreme Court in Sarju Prashad Ram Deo Sahu (supra). In Gopi Trivedi v. Gokhoi Panda and Anr., AIR 1951 Oriss 17 it has been observed, 'if the evidence, taken as a whole supports the view taken by the trial court, the appellate court should not, except for very compelling reasons, set aside that finding even if it takes a different view of the evidence'.

In the instant case before the Tribunal there were no compellingreason to reverse the finding of the Controller. After considering the entire evidence on record I am of the view that the Tribunal was not justified in reversing the finding of the Controller. I, thereforee, hold that the appellant paid Rs. 3360/- on 1-6-79 to the respondent's attorney.

10. The respondent claims eviction under Section 14(1)(a) of the Act. He served a notice of demand dated 6th July, 1979 upon the appellant on or about 11th July, 1979. The respondent demanded arrears of rent at Rs. 80/- per month for the period from 1st November, 1974. As discussed earlier a sum of Rs. 160/- was deposited by the appellant under Section 27 of the Act for November and December, 1974. He also paid a sum of Rs. 3360/- on 1st June, 1979 to the respondent's attorney. After taking into consideration these two payments it is held that the appellant had paid rents up to 30th June, 1978. In other words on 6th July, 1979 rent was due to the respondent for the period from 1st July, 1978 onwards.

The next question to be considered is whether the appellant-tenant paid or tendered the rent legally recoverable from him within two months of the date of service of the notice of demand. The respondent remitted Rs. 560/- by money order on 21st July, 1979 and another sum of Rs. 480/- by money-order on 27th July 1979. These money orders were refused by the respondent. The two money orders were sufficient to discharge the arrears of rent for the period from 1st July 1979 to 31st July, 1979. Thus it is held that the appellant tendered the rent due to her within a period of two months from the date of service of the notice of demand. In other words the respondent landlady had no cause of action for instituting the application for eviction claiming eviction under Section 14(1)(a) of the Act. The Tribunal was thereforee wrong in directing the appellant to deposit the arrears of rent from 1st November, 1974. The Addl. Controller was also wrong in directing the appellant to deposit rent for the period from 1st May, 1980 onwards. As the respondent landlady had no cause of action against the appellant tenant under Section 14(1) of the said Act, the eviction application is liable to be dismissed.

11. I accordingly accept this appeal, set aside the judgment and orders of the Addl. Controller and the Tribunal and dismiss the eviction application filed by the respondent against the appellant. No order as to costs.


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