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Nrisinha Charan Nandi Choudhuri Vs. Batasi Dashi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal106,90Ind.Cas.602
AppellantNrisinha Charan Nandi Choudhuri
RespondentBatasi Dashi
Excerpt:
civil procedure code (act v of 1908), order xiii, rules 1 and 2 - document not produced at first hearing, rejected by trial court--appeal, second--interference, by high court--bengal tenancy act (viii of 1885), section 50--landlord and tenant--rent, enhancement of, suit for--variation in rent, explanation of--burden of proof--presumption, rebuttal of. - .....he should show more definitely how this large change came about.'4. it seems to us that the learned judge has wrongly placed the onus on the plaintiff to explain the variations of rents. the onus on the contrary is on the tenants to explain why there had been this large variation of rent and if they could not give any satisfactory explanation the inference would be that there had been a change in the rate of rent. as far as i understand the learned judge's judgment he does not suggest that this rent of rs. 3-4-0 odd was for any other jama than the jama the rent of which was allowed to be enhanced.5. we must, therefore, set aside the order of the learned judge in so far as this appeal is concerned. the result is that we allow this appeal and send back the case to the lower.....
Judgment:

1. These tour appeals arise out of four suits for enhancement of rent of an occupancy holding. The Trial Court held that there was no ground for enhancement and refused the enhancement and this finding was upheld in appeal.

2. In the appeals before us one point has been taken namely that the plaintiff was not allowed to put in evidence certain collection papers. Admittedly these papers were not filed in the First Court at the first hearing. Order XIII, Rule 1 of the C.P.C. provides. 'The parties or their Pleaders shall produce at the first hearing of the suit all documentary evidence, etc.' As already stated these documents were not produced at the first hearing of the suit. Order XIII, Rule 2 of the C.P.C. provides that, 'no documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of Rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing.'

3. In this case the Court was not satisfied that there was good reason why these documents were not produced at the first hearing of the suit; and it is impossible for us in second appeal to interfere with the order of the Court rejecting those documents; because, no reason has been shown for their non-production at the time. With regard to this point which is common to all the appeals, therefore, I decide against the plaintiff. The learned Additional District Judge in dealing with the Appeal No. 1980 states as follows: 'Jote in the name of Batasha, jama Rs. 6-11-ll 3/4. Defendant proves rent at a uniform rate from 1305 to 1319. The plaintiff proves a karcha Ex. 5 showing jama of Rs. 3-4-9 1/2 in 1298 and a counter foil Ex. A-4 for 1302 showing jama of Rs. 6-9-7 3/4. The learned Munsif has rejected these. I see no reason to do so. The karchas are, it is true, loose papers tied together but I have examined them carefully.... I do not think that this alone is sufficient, he should show more definitely how this large change came about.'

4. It seems to us that the learned Judge has wrongly placed the onus on the plaintiff to explain the variations of rents. The onus on the contrary is on the tenants to explain why there had been this large variation of rent and if they could not give any satisfactory explanation the inference would be that there had been a change in the rate of rent. As far as I understand the learned Judge's judgment he does not suggest that this rent of Rs. 3-4-0 odd was for any other jama than the jama the rent of which was allowed to be enhanced.

5. We must, therefore, set aside the order of the learned Judge in so far as this appeal is concerned. The result is that we allow this appeal and send back the case to the lower Appellate Court in order that the learned Judge may re-hear the appeal considering the case from the point of view indicated, vis., that the onus lies upon the tenants to explain why there has been a variation in the rent. They may explain by showing that there has been a change in the area; but the onus is on the tenants; and if they cannot explain it, the inference will be that there has been a change in the rate of rent and, therefore, the presumption has been rebutted.

Appeals Nos. 872, 873 AND 874 OF 1923.

6. With regard to these appeals nothing has been seriously pressed in support of them and, therefore, they are dismissed.

7. Appeal No. 873 is dismissed without costs as the respondent in this appeal does not appear and Appeals Nos. 872 and 874 are dismissed with costs.

8. In Appeal No. 1980 costs abide the result.


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