Gauhati High Court
Biharilal Agarwalla And Anr. vs Tamizul Haque on 25 June, 1987
Equivalent citations: AIR 1988 GAUHATI 1, (1988) 1 GAU LR 76
Author: B.L. Hansaria
Bench: B.L. Hansaria
ORDER B.L. Hansaria, J.
1. A suit for eviction of the petitioners was filed in 1970 by the opposite party describing himself as mutawalli of M. Safiullah Wakf Estate of Tinsukia. The mutawalli had to come forward as the property belonged to the aforesaid Wakf. Eviction was sought, inter alia, on the ground that the petitioners had defaulted in paying rent since the month of Feb., 1962, and that the suit property being in a "very miserable condition" needed reconstruction. The petitioners denied that the premises belonged t the aforesaid Wakf and that the plaintiff was a duly constituted mutawalli of the same. The averments relating to the petitioners being defaulters or that the premises were needed bona fide for reconstruction were also denied.
2. On the pleadings of the parties 9 (nine) issues were framed of which we are concerned with Issues Nos. 1, 2, 5 and 6 which read as below : --
"1. Whether the suit is maintainable? 2. Whether the plaintiff has right to sue?
5. Whether the defendants are defaulters in respect of rent for the suit premises? If so what is the arrear?
6. Whether the suit houses are old and required reconstruction?
During the trial, both the sides examined witnesses and exhibited a number of documents. Among the documents exhibited by the plaintiff is Exhibit-1 which is a copy of the registered deed of Wakf dt. 14th Aug., 1946. After the evidence was over and arguments had been heard, the plaintiff filed a certified copy of the aforesaid deed along with a petition, which was marked as Exhibit 'X'. Mention may also be made about Exhibit 2, which is a letter written by petitioner No. 1 to the mutawalli of M. Safiullah Wakf Estate stating, inter alia, that the writer of the document had agreed to take the shop in question as a monthly tenant. The documents produced by the defendants include Exhibit 'Ka' series, which are copies of challans manifesting deposit of rent by the tenant which was shown payable to M. Safiullah Wakf Estate.
3. The suit was initially decreed by the trial Court. On appeal being preferred, the suit came to be dismissed as, according to the learned District Judge, the suit was not maintainable and the plaintiff had no right to sue. These are subject matters of Issues Nos. 1 and 2. The suit was held as not maintainable because reliance was sought to be placed on Exhibit-2 alone to show that the suit premises have been taken on settlement by the defendants. As, however, Exhibit-2 is not a registered document, it was held to be inadmissible, and the suit based on it was regarded as not maintainable. In so far as the plaintiffs right to sue is concerned, the view taken was that as the property formed part of a Wakf estate and when the terms of the disposition had been reduced to writing, it was incumbent to execute a registered deed by which the Wakf had been created. As the same was, however, not produced, nor secondary evidence of the same was given, Issue No. 2 was decided against the plaintiff. In taking this view the opinion expressed by this Court in SA 65/71 (Kamini Bala Deka v. Tamizul Haque) was also borne in mind.
4. This decision of the learned District Judge came to be challenged in SA 15/77 of this Court, which was subsequently numbered as Civil Revision No. 179/82. An argument was advanced in that case that the creation of the Wakf had been duly proved by Exhibit 1. The same had, however, missed the attention of the learned District Judge. As this vital document had not been taken into consideration, the impugned judgment and decree were, set aside and the appeal was remanded for disposal according to law. While doing so, it was pointed out by this Court whether Exhibit-1 was admissible or not may be gone into while deciding the appeal afresh. As to reliance by the learned District Judge, on SA 65/71 it was pointed out by this Court that in that case the deed of Wakf had not been proved at all, whereas in the present case it had been so done.
5. After the appeal went back to the file of the learned District Judge, the same was taken up by the learned Additional District Judge who, by the impugned judgment, has decreed the suit after answering the above quoted issues in favour of the plaintiff. The correctness of this judgment has been seriously assailed by Shri Chakraborty.
6. The first submission of the learned Counsel is that reliance on Exhibit-1 read with Exhibit-'X' by the learned Additional District Judge in holding that the suit was maintainable and the plaintiff had a right to sue suffers from error of law inasmuch as certified copy of the Wakf deed could not have been admitted into evidence and no reliance could have been placed on it. Before this aspect is dealt with, it may be stated that there is some confusion regarding marking of the Exhibits by the learned trial Court inasmuch as three documents have been described as Exhibit-1 one of these was stated by P.W. 1, a postal peon, as the summons on the Post-Master, whereas a copy of the Wakf deed was described as Exhibit-1 by P.W. 2 in his cross-examination. As noted earlier, a certified copy of the Wakf deed was put on record after the arguments had been heard. This had been done by filing a petition on 5-5-75 on which date itself this was allowed to be brought on record by the trial Court. This document is on record and is somehow again marked as Exhibit-1 showing the date of exhibiting this document as 25-9-72 which was the date on which P.W. 2 had been examined in the Court. I do not think if due to these anomalies, the certified copy of the Wakf deed should be discarded especially when this Court had earlier desired the Court below in SA 15/77 (subsequently numbered as Civil Revision No. 179/82) to specifically consider the same. Of course, this Court had left open the question of admissibility of the certified copy.
7. Insofar as admissibility is concerned, it has been pointed out by the learned Additional District Judge that as no objection had been raised when this document was exhibited, the admissibility could not be challenged afterwards. Reference was made in this connection to Uppara Hanumanthu v. Peddapalle Samacharlu, 33 Ind Cas 188: (AIR 1917 Mad 671), Shri Sharma, learned counsel for the opposite party, has already referred to P. C. Purushothama v. S. Perumal, AIR 1972 SC 608, which has held that it is not open to a party to object to the admissibility of documents which are marked as Exhibits without any objection from such party. Let it be pointed out here that when P.W. 2 was examined the certified copy had not been exhibited. It was subsequently brought on record by filing petition dt. 5-5-75 as already stated. This was allowed to be done as no objection had been raised by the counsel for the other side who had received a copy of the petition. It has, therefore, to be held that the certified copy was also brought on record without any objection.
8. Shri Chakraborty would not, however, leave the matter at this as his contention is that a certified copy would have been admissible under the law only under the circumstances mentioned in Section 65 of the Evidence Act. It is submitted that in the present case none of the clauses mentioned in Section 65 is attracted. The contention, however.
does not seem to be correct inasmuch as under Clause (c) of Section 65 of the Evidence Act, secondary evidence may be given when the party offering evidence cannot produce the original for reason not arising from his own default or neglect, in reasonable time. In the present case, the original having been filed in a Court in Calcutta as stated by P.W. 2 it can be assumed that the same could not have been produced before the trial Court in a reasonable time. I am, therefore, satisfied that Exhibit-1 (meaning certified copy of the Wakf deed) was duly admitted in evidence. But before the contents of the document are looked into, let another objection of Shri Chakraborty be disposed of. Learned counsel contends that admission of a document as an exhibit does not dispense with its proof and refers to S.T. Khimchand v. Y. Satyam, AIR 1971 SC 1865. In the present case execution of the Wakf deed in question being not an issue, I do not think if any proof of its due execution was called for. Exhibit-1 having been duly admitted in evidence, the contents of this document can also be looked into, though the evidence regarding contents may not be conclusive, as stated in Purushothama (supra).
9. Exhibit-1 would show that the property belonged to M. Safiullah Wakf Estate and that the plaintiff was the third mutawalli of the Wakf. Insofar as the question of the property belonging to the aforesaid Wakf is concerned, the same is writ large on the face of Exhibit-'Ka' series by which the defendants had deposited rent in the Court by stating that the deposit was of house rent payable to M/s. M. Safiullah Wakf Estate. I would also think that Exhibit-2, even if unregistered, would be admissible to show that the defendants were tenants of the suit property.
10. Next question is whether the plaintiff as mutawalli of the Wakf could have instituted the suit. In this connection, Shri Chakraborty has submitted that after the coming into force of the Wakf Act, 1954, hereinafter, the Act, the Board established under Chapter-III of the Act alone could have brought the suit. Reliance has been placed in this context on Maulvi Reza Ansari v. Shyamlal Sah, AIR 1983 Patna 299. That was a case where a suit had been filed for declaration that the suit properties were endowed and Wakf properties and that the defendants had not acquired any title over the properties and their possession over the same was illegal and wrongful. This suit ultimately came to be disposed of in terms of the compromise reached between the parties. This decree was put in execution by a person who claimed himself to have been elected as a mutawalli. An objection was raised that the execution case having been filed by the mutawalli was not maintainable. This objection was upheld by the High Court after referring to certain provisions of the Act. It was first noted that the Act requires establishment of a Board of Wakf which shall be a body corporate having perpetual succession and a common seal and could by the said name be sued or can sue. Section 15 was then adverted to which has dealt with the function of the Board which includes general superintendence of all Wakfs in the State. The Board is also to ensure that the Wakfs under its superintendence are properly maintained. Controlled and administered and the income thereof is duly applied to the object and for the purpose for which such Wakfs were created. Section 15(2) of the Act has dealt with some functions of the Board which includes the power to "institute and defend suits and proceedings in a Court of law relating to wakfs."
11. The provision relating to mutawalli were thereafter referred and duties of mutawalli laid down under Section 36 of the Act were pointed out. It was then noted that a mutawalli could be removed by the Board from his office notwithstanding anything contained in any other law or the deed of the Wakf in the circumstances mentioned in Section 53 of the Act. The power of the Board to appoint mutawalli in certain cases as available in Section 43 was also noted. On the basis of these provisions it was held that the mutawalli is merely a manager of the Wakf and is directly under the control and superintendence of the Board It was pointed out that there was nothing to empower a mutawalli to institute and defend suit or proceedings in Courts of law relating to Wakf on his own. This power is vested in the Board which is a body corporate which must sue and be sued in its own name. The only exception noted was the provision contained in Section 6 of the Act with which we are not concerned in the present suit.
12. The decision in Maulvi Reza Ansari (AIR 1983 Patna 299) (supra) would undoubtedly support the contentions of Shri Chakraborty that mutawalli could not have brought the suit on behalf of the Wakf. Shri Sarmahas, however, referred to the provisions of the Assam Urban Areas Rent Control Act, for short, the Assam Rent Control Act, and has particularly invited attention to the definition of the word 'landlord' as given in Section 2(c) of the Act. That section reads as below : --
" "Landlord" means any person who is, for the time being receiving or entitled to receive rent in respect of any house whether on his own account or on account, or on behalf of or for the benefit, of any other person, or as a trustee, guardian or receiver for any other person and includes...."
As a mutawalli has to be regarded as manager of the Wakf, there can be no dispute that he is a person entitled to receive rent on behalf of the Wakf and as such he is a landlord within the meaning given in the Act. In this connection, Shri Sarma has referred to Mohinder Singh v. Md. Ibrahim, AIR 1982 Him Pra 95, wherein after taking note of the definition of "landlord" as given in Clause (5) of Section 2 of the Himachal Pradesh Urban Areas Rent Control Act which was in the following terms : --
"(c) 'landlord' means any person for the time being entitled to receive rent in respect of any building or rented away on his own account or on behalf or for the benefit of any other person...."
It was held that a person appointed as a mutawalli for managing property and receiving rent is a landlord within the aforesaid definition and is entitled to file suit for eviction. The definition of the word 'landlord' in the Assam Rent Control Act being akin to the definition of this word in the Himachal Pradesh Urban Areas Rent Control Act, Shri Sarma has urged that in the present case too the mutawalli was well within his rights to file the present suit. There is sufficient force in this submission of the learned counsel. It has also been urged by Shri Sarma by referring to Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335, that it is the landlord alone who can terminate the tenancy and institute a suit for eviction. Though in this connection Shri Chakraborty has referred to Mohammad Maqsud v. Roop Chand, AIR 1940 All 387, which has held that a mutawalli is not a landlord, the decision has to be read along with the definition of the word 'landlord' given in the statute with which the case was concerned. There the word 'landlord' was sought to be equated with the word proprietor because of which it was held that mutawalli could not be regarded as 'landlord' inasmuch as Wakf properties under the law vested in God, the Almighty, and so a mutawalli cannot be regarded as a proprietor of the property. The definition of the" word 'landlord' in the Assam Rent Control Act being entirely different, this decision has no relevance for the case at hand.
13. On the question of right to sue some reliance was also placed in the Court below on the provisions of Sections 36-A and 36-B of the Act. These provisions having been inserted into the Act by Act 34 of 1964, it was rightly held that these provisions would not apply to the case at hand as the lease had been given out in 1956, whereas the provisions were added in 1964 without having any retrospective effect. Shri Chakraborty referred in this connection to Section 57 of the Act which requires issue of notice to the Board in a suit or proceeding relating to a title to Wakf property or the right of a mutawalli. Sub-section (3) of this section has stated that if a notice as required by Sub-section (1) be not issued, any decree or order passed in the suit or proceeding shall be declared void, if the Board, within one month of its coming to know of such suit or proceeding, applies to the Court in this behalf. A perusal of these provisions makes it abundantly clear that these have nothing to do with the right of a mutawalli to institute a suit relating to Wakf property.
14. The important question is provision of which Act would prevail in the present case. The controversy has arisen in the case at hand because if we were to be guided by the provisions of the Act, the suit has to be regarded as not maintainable having been filed by a mutawalli. If on the other hand, the Assam Rent Control Act should be the guiding star, the suit as filed has to be regarded as maintainable. The riddle can be solved by applying the maxim 'generalia specialibus non derogant'. This maxim means that the general provision will not abrogate the special provision. In C.I.T. v. Shahzada Nand and Sons, AIR 1966 SC 1342, the maxim was explained in para. 8 to mean that when there is conflict between the general and special provision, the latter shall prevail. In South India Corpn. (P.) Ltd. v. Secy., Board of Revenue, AIR 1964 SC 207, it was stated in para 8 that "it is a settled law that special provision should be given effect to to the extent of its scope leaving the general provision to control the case where special provisions do not apply". State of Gujarat v. Ramjibhai, AIR 1979 SC 1098, regarded this maxim as a "cardinal principle of interpretation". (See para 26). In Secretary of State v. Hindustan Co-operative Insurance Society, Ltd., AIR 1931 PC 149, this maxim was regarded as a "well recognised principle". This decision was noted with approval in Patna Improvement Trust v. Lakshmi Devi, AIR 1963 SC 1077 (see para 12). The Supreme Court had occasion to apply this principle in Union of India v. Indian Fisheries Private Ltd., AIR 1966 SC 35. In Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661, this principle was described in para 35 as a "cardinal rule of construction."
15. It would be in fitness of things to refer to Maxwell's Interpretation of Statute and Craies on Statute Law. It has been stated at page 377 of Craies's 7th Edition that:
"The general rule, that prior statutes are held to be repealed by implication by subsequent statutes if the two are repugnant, is said not to apply if the prior enactment is special and the subsequent enactment is general, the rule of law being, as stated by Lord Selborne in Seward v. Vera Cruz, (1884) 10 App Cas 59, 68, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so."......The general maxim is, generalia specialibus non derogant-- i.e. general provisions will not abrogate special provisions. (Gloucester (Bishop) v. Cunnington, (1943) KB 101; Wiltshire County Valuation Committee v. Boyce, (1948) 2 KB 125 and p. 586). "When the legislature has given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject matter and its own terms. (Barker v. Edger (1898) AC 748, 754 (PC))."
In Maxwell's "Interpretation of Statute" 12th Edition, the law on this subject has been dealt with at pages 196 et al. First of all, the observations of the Earl of Selborne L.C. in the Vera Cruz have been noted wherein it was stated that : --
"Now if anything be certain it is this that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered or derogated from merely by force of general words without any indication of a particular intention to do so."
Thereafter reference has been made to the following observations of Viscount Haldane in a later case : --
"We are bound....to apply a rule of construction which has been repeatedly laid down and is firmly established. It is that wherever the Parliament in an earlier statute has directed its attention to a new case and has made provision for it unambiguously, there arises a presumption that if in a subsequent statute the legislature lays down a general principle, that general principle is not to be taken as means to rip up what the legislature had before provided for individually, unless an intention to do so is specially declared..."
16. The important question is which statute (Wakf Act or the Assam Rent Control Act) has to be regarded as special for the case at hand. The Wakf Act being concerned with the question of better administration and supervision of Wakfs has to be regarded as a general statute dealing with Wakfs. In the present case, we are concerned with the right of mutawalli as a landlord to file an eviction suit against a tenant. On this question the provisions of the Assam Rent Control Act have to be regarded as specially dealing with the relationship of landlord and tenant and the rights of a landlord relating to filing of a suit for eviction of a tenant. The Assam Rent Control Act is thus a special statute on the point at hand. Not only this. It is also a later statute on the subject with which we are concerned. In this view of the matter, I would hold that the suit filed by the mutawalii was maintainable.
17. The plaintiff having a right to sue and the suit being maintainable, let it be seen whether any case has been made out for eviction of the petitioner. One of the grounds for eviction is the default of the petitioners in paying rent from the month of Feb., 1962, onwards. Though it has been alleged in the plaint that the petitioners did not pay rent since Feb., 1962, reference to the impugned judgment shows that the attention was confined to the payment of rent for the month of Feb., 1962, only. As rent for this month was deposited on 20-3-62, it was held that the petitioners were defaulters inasmuch as the rent had not been deposited within a fortnight of its becoming due as required by Section 5(4) of the Assam Rent Control Act. This view was taken because, according to the learned Additional District Judge, the rent for each month becomes due, under the provisions of the Assam Rent Control Act, on the expiry of the last day of the month and as such rent for the month of Feb. must have been deposited within 15th day of the March and the same having not been done the petitioners were held to be defaulters.
18. It has been contended by Shri Chakraborty that this finding is not in accordance with the law as explained by this Court in Chitaranjan Paul v. Sunil Choudhury, (1983) I Gauhati LR 268 and Harish Chandra v. Naresh Chand, (1985) 1 Gauhati LR 36. In Chitaranjan, it was held that to decide as to when rent became due, the term of agreement between the parties relating to mode of payment of rent was relevant. It was further stated that rent would become due within the meaning of Section 5(4) of the Rent Control Act on the last day up to which rent could have been paid as per the agreement between the parties. In Harish Chandra, it was stated that it was the burden of the landlord seeking eviction to inform the Court about the agreement relating to the mode of payment of rent. In the present case, there being no evidence from the side of the plaintiff as to when the monthly rent was payable, it cannot be held that the landlord had discharged his burden in this regard. A reference to Exhibit-2, on the other hand, shows that the rent was to be paid "on the first week of each and every succeeding month". As per this term, rent for Feb., 1962, had become payable by the 7th of Mar., 1962. As the deposit of rent in the present case was on 20th Mar., 1962, it has to be held that the same was "within a fortnight of its becoming due". The finding under Issue No. 5 that the petitioners were defaulters cannot, therefore, be regarded in accordance with law, and the same is liable to be reversed by this Court.
19. The other ground on which eviction was sought is relatable to the question whether the suit houses are old and require reconstruction. This is the subject matter of Issue No. 6. Both the Courts below were satisfied that the houses did require repairing as they were old having been built before 1950 and were in a dilapidated condition. In coming to this conclusion, reference was made to Exhibits-3 and 4, which are the copies of site plan etc. approved by the Tinsukia Development Authority. The contention of Shri Chakraborty in this regard was that a perusal of para 3(1)(iii) of the Wakf deed shows that the mutawalii was authorised to construct a building only on the vacant land at No. 6 Kasaipara land (in Calcutta). The submission is that the Wakf deed having specifically authorised the mutawalii to construct a building at Kasaipara land, it was implied that the Wakif did not desire the mutawalii to construct a new building in place of the suit premises. But then reference to para 3(i)(ii) of the deed shows that the mutawalii was allowed to retain 10% of the income as a reserve fund to be called "Reserve Fund No. II", and out of the same to pay for the "expenses of repairs, additions, alterations and improvement of the said Wakf Estate". Thus, the mutawalii did derive power to spend the Wakf money for repairs and improvement as well. This being the position, it cannot be held that the reconstruction of the suit houses would be beyond the terms of the Wakf deed. The finding arrived at in this regard cannot, therefore, be upset by this Court sitting in revision.
19A. Shri Chakraborty submitted that as the opposite party has some vacant plot near the suit land available for making construction, the petitioners may not be asked to vacate the premises under their occupation. He referred in this connection to Nawab Ali v. Smt. Hira Devi, (1983) 2 SCC 256. The facts of that case being entirely different, the types of directions given therein relating to the proposed new construction while remitting the case, cannot be given here. As the opposite party wants to repair the suit premises which are in a dilapidated condition, the availability of vacant plot nearby is no solution of the problem.
20. Shri Chakraborty, however, implores to keep in mind the great hardship which the eviction would cause to the petitioners and refers to para 12 of Variety Emporium v. V.R.M. Mohd. Ibrahim, AIR 1985 SC 207. No doubt, the eviction would cause some hardship to the petitioners but as the law permits a landlord to evict a tenant where the house is required bona fide for repairs or rebuilding, the law has to be allowed to take its due course. While doing so, I would, however, like to protect the interests of the tenant also to the extent legally permissible. In this regard, it is first stated that if the landlord does not commence the repairing work within 15 days of the date of vacation of the house, it would be open to the petitioners to approach this Court within 7 months of their vacating the house to direct the opposite party to put them in possession of the house as provided in Section 5(3) of the Assam Rent Control Act. To further protect the interest of the petitioners it is stated that the opposite party shall have to let out to the petitioners a floor area by and large equivalent to one presently under the possession of the petitioners after the premises have been rebuilt, and for this the petitioners shall pay fair rent. This direction has been given keeping in mind the decision of the Supreme Court in Nawab Ali (supra) wherein also such a direction was given. May it be stated that Nawab Ali had dealt with eviction governed by the Assam Rent Control Act.
21. In the result, while affirming the impugned judgment and decree, the petition is disposed of with the aforesaid observations.