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M.P. Narayan Vs. Sm. Sudhadevi and ors. - Court Judgment

LegalCrystal Citation
Overruled BySudha Devi v. M.P. Narayan
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberAppeal No. 477 of 1984
Judge
Reported inAIR1986Cal256
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rules 6 and 13; ;West Bengal Premises Tenancy Act, 1956 - Section 16; ;West Bengal Premises Tenancy Rules, 1956 - Rule 4
AppellantM.P. Narayan
RespondentSm. Sudhadevi and ors.
DispositionAppeal allowed
Cases ReferredNagar Palika Nigam. Gwalior v. Motilal Munnalal.
Excerpt:
- .....being ejectment suit no. 818 of 1974, against the respondent nos. 2 and 3. on 6th feb. 1982 an ex parte decree for ejectment and rs. 1295.55 for cost, was passed against the respondent nos. 2 and 3 in the said suit.4. the appellant initiated proceedings in the city civil court for leave to contest the execution of the ex parte decree for possession against the respondent nos. 2 and 3 in ejectment suit no. 818 of 1974and he obtained leave to contest the execution of the decree under order 21, rule 97 being misc. case no. 1183 of 1983and the said misc. case is still pending.5. it has been alleged by the respondent no. 1 that subsequent to the said decree, second and/or third respondent wrongfully permitted and allowed the appellant to occupy the demised flat. the second and/or third.....
Judgment:
Pyne, J.

1. This appeal is directed against the ex parte decree dated 23rd July 1984 passed by Mrs. Monjula Bose, J. in Suit No. 264 of 1984 Sm. Sudha Devi v. Baranagore Jute Factory Company Ltd. and Ors.)

2. The facts relevant to the instant appeal as will appear from the plaint of the said Suit No., 264 of 1984 and other records are briefly set out hereunder.

3. According to the respondent No. l, the respondent No. 2 was a tenant under her in respect of flat No. 12 on the 6th floor with a servant quarter and car parking space on the ground floor (hereinafter referred to as the 'demised flat) premises No. 12B, Lord Sinha Road. Calcutta. The defendant No. 2 made defaults in payment of agreed monthly rents in respect of the demised flat to the respondent No. 1. Further, the respondent No. 2 during the subsistence of its tenancy without the consent of the respondent No. 1 sublet the demised fiat to the respondent No. 3 and permitted and allowed him to occupy the same. In the premises the respondent No. 1 duly determined the tenancy of the respondent No. 2 in respect of the demised flat on and from 1st June 1974. Inasmuch as the respondentNo. 2 failed and neglected to deliver up possession of the demised flat to the respondent No. 1 she filed in the City Civil Court an ejectment suit being Ejectment Suit No. 818 of 1974, against the respondent Nos. 2 and 3. On 6th Feb. 1982 an ex parte decree for ejectment and Rs. 1295.55 for cost, was passed against the respondent Nos. 2 and 3 in the said suit.

4. The appellant initiated proceedings in the City Civil Court for leave to contest the execution of the ex parte decree for possession against the respondent Nos. 2 and 3 in Ejectment Suit No. 818 of 1974and he obtained leave to contest the execution of the decree under Order 21, Rule 97 being Misc. Case No. 1183 of 1983and the said Misc. Case is still pending.

5. It has been alleged by the respondent No. 1 that subsequent to the said decree, second and/or third respondent wrongfully permitted and allowed the appellant to occupy the demised flat. The second and/or third respondent by themselves and/or by the appellant were in wrongful possession of the demised flat. The alternative case pleaded by the respondent No. 1 in her plaint in suit No. 264of 1984 is that the appellant wrongfully entered the demised flat and had wrongfully taken possession thereof and he thereby trespassed and is still trespassing thereon. In the premises on or about 10th April 1984 the respondent No. 1 filed the above Suit No. 264 of 1984 against the appellant and the respondent Nos. 2 and 3 for a decree for possession of the demised flat against the appellant and a decree for Rs. 1,44,730/- on account of mesne profit as also further mesne profit at the rate of Rs. 170/- per day until delivery of possession of the demised flat against the appellant and the respondent Nos. 2 and 3. It appears that on 23rd July 1984 an ex parte decree was passed against the appellant directing him to deliver up to the respondent No. 1 quiet, vacant and peaceable possession of the demised flat and a decree for Rs. 1,44,730/- with interest on the said sum at the rate of 12% per annum from 11th April 1980 and costs against the appellant and the respondent No. 2. It was further decreed that the appellant and the respondent No. 2 would pay to the respondent No. 1 mesne profit in respect of the demised flat at the rate of Rs.170/-per day commencing from 1st April1984 until possession of the demised flat was delivered to the respondent No. I.

6. On 7th Aug. 1984 the appellant made an application for setting aside the ex parte decree dated 23rd July 1984 which was, however, dismissed on 30th Aug. 1984.

7. On 10th Sept. 1984 the appellant preferred an appeal against the said order dated 30th Aug. 1984 and made an application. inter alia, for stay of the said decree dated 23rd July 1984. on 20th Sept. 1984 the said application was dismissed and by consent of the parties the said appeal was treated as on that day's list and the same was also dismissed.

8. On 19th Nov. 1984 the appellant preferred the above appeal against the decree dated 23rd July 1984 and made an application, inter alia, for the stay of the said decree. The said application was disposed of by order dated 28th Nov. 1984. By the said order the said decree was stayed upon furnishing of securities by the appellant as will appear from the said order.

9. Only the respondent No. 1 has appeared and contested this appeal.

10. Counsel for the appellant has submitted that there was no sufficient evidence before the trial Court for passing an ex parte decree for possession and mesne profit. On the basis of the evidence which was adduced on behalf of the respondent No. 1 in the said suit a decree for possession could not be passed. It was further submitted that the witness who gave evidence on behalf of the respondent No. 1 in the suit was not aware as to how the appellant came to occupy the demised flat. There was no evidence to prove whether the appellant was occupying the demised flat without consent of the landlord, i.e.. respondent No. 1. It was also submitted that the above suit should have been adjourned until disposal of the Misc. Case No. 1183 of 1983 pending before the City Civil Court. According to counsel great caution should be exercised by the Court when the suit is heard ex parte. Even when the suit is heard ex parte the plaintiff is required to prove his case. If there be no sufficient evidence the plaintiff's claim is liable to be dismissed though the defendant does not appear. It has been further submitted that in dealing with an ex parte casethe court should take good care to see that the plaintiff's case is at least prima facie proved. Reference was made to the cases of Rai Satyendra Nath Sen Bahadur v. Narendra Nat Gupta, 39 Cal LJ 279 : AIR 1924 Ca! 806; State of West Bengal v. Lakshmi Narayan Singh. : AIR1956Cal87 and Nagar Palika Nigam, Gwalior v. Motilal Munnalal. : AIR1977MP182 .

11. Counsel for the respondent No. 1 has submitted that there are sufficient evidence on record for passing the ex parte decree for possession and mesne profit. He has further submitted that how the appellant came into possession of the demised flat is within his special knowledge and according to Section 106 of the Evidence Act the burden of proving that fact is upon the appellant. It has also been submitted that as the appellant failed to file his written statement the trial court rightly passed the decree ex parte against him. Reference was made to Order 8. Rule 10 of the Civil Procedure Code. Further submission of the counsel has been that as there is no proof of any consent in writing to Sub-let the demised flat by the respondent No. 2, who was a tenant of the demised flat, Sub-letting of the same by it to the appellant, if any, is void and not binding on the respondent No. 1. Further, no notice of Sub-letting the demised flat to the appellant by the respondent No. 2 has been given to the respondent No. 1 as required by Section 16 of the West Bengal Premises Tenancy Act, 1956 and R. 4 of the West Bengal Premises Tenancy Rules. 1956. According to counsel, in the facts and circumstances of this case the trial court rightly passed ex parte the decree dated 23rd July 1984.

12. Before dealing with the submissions of the parties we would like to deal with the decisions relied upon by the appellant'scounse! mentioned hereinbefore.

13. In the case of Rai Satyendra Nath Sen Bahadur v. Narendra Nath Gupta (AIR 1924 Cal 806) (supra) Mookerjee. J. observed that

'The fundamental principle of law is that the plaintiff, when he comes to Court, must prove his case and he must prove it to the satisfaction of the Court. His burden is not lightened because the defendant is absent; on the other hand the responsibility is increased in one sense, for as observed by Sir LawrenceJenkins in Deonandan v. Janki Singh (AIR 1916 PC 227) when a matter is heard exparte in the absence of one of the contestants who is not represented it is the duty of the counsel to bring to the notice of the Court adverse as welt as favourable authorities. To the same effect is the observation of Lord Macnaghten in Champat Singh v. Jangu Singh (1912-16 Cal WN 7931 that if there is a slip in an appeal heard ex parte, the error is attributable to the appellant'.

14. In the case of State of West Bengal v. Lakshmi Narayan Singh (AIR 1956 Cal 871 (supra), R. P. Mookerjee, J. observed as follows : --

'Even if the defendant does not choose to appear in a case that by itself is not sufficient to entitle the court to jump to the conclusion that the plaintiff is entitled to the claim made. The plaintiff is required to prove his case. If there be no sufficient evidence or if the plaintiff's claim is found to be barred underany provision of the law the claim is liable to be dismissed either in whole or in part as the case may be though the defendant has not chosen to appear'.

15. In the case of Nagar Palika Nigam. Gwalior v. Motilal Munnalal. (AIR 1977 Madh Pra 1821 (supra I,C. M. Lodha.J. has observed as follows :--

'We may here point out that every court in dealing with an ex parte case should take good care to see that the plaintiff's case is at least prima facie proved'

X X X X X X 'It is no doubt the practice that no issuesare framed but that does not absolve the plaintiff of his responsibility to prove his case. The plaintiff is bound to prove his case to the satisfaction of the court and his burden is not lightened merely because the defendant is absent.'

16. In the light of the above decisions it has 10 be seen whether the evidence adduced on behaif of the respondent No. 1 before the trial Court was sufficient to justify passing of ex parte decree in her favour.

17. At the trial one Nand Kumar Tibrewal gave evidence on behalf of the plaintiff (respondent No. 1) in Suit No. 264 of 1984. Although the plaint was filed by the plaintiff(respondent No. 1) she did not give evidence in the suit. The said Nand Kumar Tibrewal (hereinafter referred to as 'the witness') was examined as the only witness on behalf of the plaintiff. It appears 'from the record that this witness was in business and residing at No. 12B. Lord Sinha Road. Calcutta. In his evidence the witness said that he had known the plaintiff (respondent No. 1) and also the defendants (respondent Nos. 2 and 3) including the appellant, (QQ, 1 and 2). To the question whether the witness could say in what connection the plaintiff filed the suit against the defendants he answered that the plaintiff (respondent No. II filed the suit against the defendants because the flat was originally given to the defendant No. 1 (respondent No. 2) on lease and it was Sub-let by it without any consent (Q. 4). It was not stated what was the source of the witness's knowledge or how he came to know that the second respondent Sub-let the demised flat without consent. The witness further said that the defendant No. 1 (respondent No. 2) was a tenant under the plaintiff (respondent No. 1) in respect of flat No. 12 on the 6th floor of 12B, Lord Sinha Road. Calcutta.71 at the rent of Rs. 900/- per month, (QQ 5, 6 and 9). He further said that the defendant No. 1 (respondent No. 2) defaulted in payment of monthly rent, (QQ 9 and 101. Here also it is not stated what was the witness's source of knowledge or how he came to know the said facts. In answer to question Nos. 11 and 12 the witness said that he knew the defendant No. 2 (respondent No. 3) and he was impleaded as a party because he was occupying the demised flat without any consent from the plaintiff (respondent No. 1). Here also it is nowhere stated in his evidence how the witness could have the knowledge that the defendant No. 2 (respondent No. 3) was occupying the flat without the consent of the plaintiff, (respondent No. 11 The witness, however, deposed that the plaintiff (respondent No, 1) filed the suit in the City Civil Court against the defendant Nos. 1 and 2 (respondent Nos. 2 and 3) in 1974 to get the demised flat vacated and a decree was obtained in 1982. The witness proved the certified copy of the decree dated 5th Feb. 1982 which was tendered and marked as exhibit A (QQ 13 to 15).

18. As regards the appellant the witness said in answer to question No. 16 that he was not aware how the appellant occupied thedemised flat, in answer to question how the appellant occupied the demised flat? In answer to question No. 17 he said that the appellant occupied the demised flat before the decree although in para 7 of the plaint it is alleged that the appellant was in occupation of the flat after the decree was passed in the City Civil Court suit. In answer to question Nos. 18 and 19 the witness said that the appellant was still in possession of the demised flat and the plaintiff (respondent No. 1) did not consent about the occupation of the appellant of the said flat. On the above evidence as to the possession, a decree for possession was passed against the appellant.

19. It appears, the said witness is a stranger. He has not stated how he came to know or how he was related to the respondent No. I (the plaintiff in the suit), whether he inducted (he second respondent as the tenant on behalf of the respondent No. 1 or he was looking after the demised flat on behalf of the respondent No. I. It appears from the record that the witness was residing at No. 12B, Lord Sinha Road and as such a resident it might be possible for him to say that the appellant was in possession in the demised flat. But one fails to understand how was it possible for such a resident, who did not say that he wasacquainted with the facts and circumstances of the case, to say that the second respondent wrongfully Sub-let the flat to the appellant or such Sub-letting was without the consent of the respondent No. 1 or such possession of the appellant or the third respondent was wrongful. It may be noted that the said witness did not verify the statements contained in theplaint. 11 also appears from the record that the said witness did not depose on behalf of the respondent No. 1, i.e.. the plaintiff in the said City Civil Court suit. It appears from the OrderSheet No. 51 dated 5th Feb. 1982 contained in the Paper Book (P, 27) that one Kishorilal Bhimsaraia. described as Manager of the respondent No. 1, was examined as a witness on behalf of the respondent No. 1. i.e., the plaintiff in the said City Civil Court suit.

20. It is well settled that the Appeal Court cannot look into the documents not included in the record of the appeal or contained in the Paper Book. Further, no document has been produced in this Court to show that the said witness had any first hand knowledge aboutthe tenancy relating to the demised flat. Nowhere in the deposition it appears that the witness being a resident of No. 12B, Lord Sinha Road could have any knowledge about the terms of the tenancy or whether the appellant was a direct tenant of the respondent No. I or not. Simply it is an evidence of a stranger who could not possibly know whether the appellant was in possession of the flat as a tenant or without the consent of the respondent No. 1 unless it is his positive evidence that he was looking after everything relating to the tenancy of the demised flat on behalf of the respondent No. 1. It is stated from the Bar that the said witness is the husband of the respondent No. 1 and as such he is supposed to know everything. There is nothing in the Paper Book of the appeal to support such statement. Further, the witness has nowhere stated in his evidence that as the husband of the respondent No. 1 he had full knowledge of her case.

21. From the decisions referred to earlier it appears that the settled law in case of hearing of the suit ex parte is that the Court must be vigilant and the decree passed ex parte must be supported by cogent and sufficient evidence to the satisfaction of the court.

22. Following the ratio laid down in the cases mentioned above it appears to us that in the instant case there was no sufficient or cogent evidence to support the ex pane decree for possession passed against the appellant.

23. Regarding the claim of the respondent No. 1 for mesne profit for the demised flat at the rate of Rs. 170/- per day the said witness has said that that was the rate of rent then prevailing at that area. He has further said that in the same block of No. 12B, Lord Sinha Road for a smaller flat on the third floor comprising an area of about 1450 or 1460 sq. feet West Bengal Tea Board was paying Rs. 4250/- as monthly rent as will appear from its letter. The witness only proved the signature of a letter dated 10th July 1984 written on behalf of West Bengal Tea Dev. Corpn. Ltd. to the Manager, State Bank of India. La Martiniare Branch, Calcutta (Ext. 'B'). The witness at first said that he was not sure since when West Bengal Tea Bdbrd was paying rent at that rate but thereafter he said that it was paying such rent from 5/6 years back, (QQ. 22 to 29).

24. The above evidence, in our view, isnot sufficient to support the claim of ttje respondent No. 1 for mesne profit at the rate of Rs. 170/-per day in respect of demised flat. No evidence of the rent payable for similar flat in the area has been given. Only evidence of the witness is that for a smaller flat on the third floor of the same block at premises No. 12B, Lord Sinha Road, West Bengal Tea Development Corporation Ltd. was paying rent at the rate of Rs. 4250/- per month. The witness was unable to give the exact area of the said flat. No particulars regarding situation, accommodation or other relevant facts in respect of the said flat have been given by the witness. No proper evidence of any comparable unit was given on behalf of the respondent No. 1 to support her claim for mesne profit at the rate of Rs. 170/- per day. In our view the respondent No. 1 did not produce any cogent and/or sufficient evidence in support of her claim for mesne profit at the rate of Rs. I70/- per day for the demised flat.

25. In our view the respondent No. 1 failed to prove her case in the trial Court. We are however not expressing any opinion regarding the question in what capacity the appellant is in possession and/or occupation of the demised flat.

26. For all the reasons stated above the appeal, in our view, should be allowed. The appeal is allowed. The decree dated 23rd July 1984 is set aside. In the facts and circumstances of this case there will be no order as to cost.

27. The interim order dated 28th Nov. 1984 will stand vacated. The Bank guarantee furnished by the appellant in favour of the Registrar, Original Side will stand discharged and be returned by the Registrar, Original Side to the concerned Bank. If monthly payments have been made by the appellant to the respondent No. 1 in terms of the said order parties will be at liberty to take appropriate steps regarding such payments as they maybe advised.

28. The Registrar, Original Side and all parties to act on a signed copy of the minutesof the ordering portion of thisjudgment.

Majumdar, J.

29. I agree.


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