Madhya Pradesh High Court
Manorama Devi Wd/O Parmanand And Ors. vs Suresh S/O Kailash Narain And Ors. on 28 November, 1998
Equivalent citations: 1999(1)MPLJ436, 1999 A I H C 3433, (1999) 1 MPLJ 436, (1999) 1 RENCR 620, (1999) 2 RENTLR 357
JUDGMENT S.P. Srivastava, J.
1. Heard the learned counsel for the tenant-appellants.
2. Perused the record.
3. Feeling aggrieved by the decree passed by the first appellate Court dated 20-4-1998, dismissing their appeal and confirming the decree of the trial Court for their eviction from the accommodation in dispute and recovery of arrears of rent and damages for use and occupation, the tenant-appellants have now approached this Court in second appeal seeking redress praying for the reversal of the impugned decree.
4. The suit giving rise to this appeal had been filed by Kailash Narain and Padamchand Jain against Paramanand on 18-11-1981. During the pendency of the suit, both the plaintiffs as well as the defendant expired and their heirs and legal representatives were brought on the record.
5. The suit had been filed seeking a decree for eviction on the grounds envisaged under Section 12(l)(a), (c) and (o) of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as the Act).
6. The defendant, Paramanand had filed his written statement on 10-9-1982, denying the plaint allegations including the rate of rent asserting that the requisite conditions contemplated under Section 12(l)(a), (c) and (o) of the Act, could not be deemed to have been satisfied or established.
7. Since a dispute had been raised in regard to the rate of rent, in the proceedings under Section 13(2) of the Act, after affording an opportunity to the parties to lead evidence, the trial Court vide its judgment and order dated 4-8-1989, fixed a reasonable provisional rent in relation to the accommodation to be Rs. 100/- per month which was required to be deposited in the Court in accordance with the provisions of Section 13(1) of the Act, till the decision of the suit or appeal.
8. The aforesaid order was not complied with by the defendant, and on 6-3-1995, after hearing the parties, the trial Court passed an order striking out of the defence against eviction put in by the defendant.
9. The plaintiffs led evidence in support of their case. In their oral evidence, they examined Suresh Jain as P.W. 1, who was allowed to be cross- examined by the defendant.
10. The order sheet maintained by the trial Court dated 15-10- 1996, indicates that during the course of cross-examination, the defendant wanted to cross-examine the plaintiff on the aspects in respect whereof his defence had been struck out.
11. The trial Court in its order of the aforesaid date indicated that the defendant had been allowed to cross-examine the plaintiff in extenso but so far as the grounds of eviction were concerned, in the absence of pleadings, there could be no occasion for cross-examination of the plaintiff in support of the defence set up in the written statement which had been struck out.
12. The defendant did not lead any evidence in rebuttal of the evidence led by the plaintiffs.
13. The trial Court on a careful consideration of the evidence and the materials brought on the record came to the conclusion that the plaintiffs had been able to establish the requisite conditions envisaged under Section 12(l)(a), (c) and (o) of the Act, and were entitled to a decree for eviction as claimed. It was also found that the defendant was liable to pay damages for use and occupation in respect of that portion of the building which had been taken possession of by them in an unauthorised manner and amounted to an illegal encroachment, at the rate of Rs. 150/- per month from the date of filing of the suit till delivery of the possession thereof to the plaintiffs.
14. The suit for recovery of arrears of rent pendente lite and future was also granted in favour of the plaintiffs as prayed.
15. The trial Court further provided that the defendant was entitled to the adjustment of Rs. 3,000/- towards repairs of the accommodation in dispute as against the amount of rent already deposited by him in the Court.
16. The defendant/tenants challenged the decree of the trial Court in first appeal.
17. The first Appellate Court endorsed the findings returned by the trial Court against the defendants in regard to the establishment of the requisite conditions envisaged under Section 12(l)(a), (c) and (o) of the Act.
18. The first Appellate Court however reversed the findings of the trial Court so far as the adjustment of Rs. 3,000/- as against the rent due was concerned and set aside that part of the decree passed by the trial Court.
19. The learned counsel for the appellants has strenuously urged that the impugned decree stands vitiated in law as no proper opportunity of leading evidence had been afforded to the defendants regarding the rate of the rent when the rate itself was disputed. The contention is that the rate of rent determined in the proceedings under Section 13(2) of the Act, is only a reasonable provisional rent in relation to the accommodation and since the defendants had raised a dispute asserting that the rate of rent which was liable to be paid by them in respect of the accommodation in dispute was only Rs. 50/- per month and not Rs. 250/- per month as claimed by the plaintiffs, the mere determination of the reasonable provisional rent could not prevent the defendants from leading evidence to establish that in fact the real rate of rent was only Rs. 50/- per month. The assertion is that in case it was established that, in fact, the rate at which the rent was payable was only Rs. 50/- per month, in that event, the requisite condition contemplated under Section 12(l)(a) of the Act, could not be deemed to have been satisfied. It is claimed that the defendants were seriously prejudiced on account of the omission of the trial Court to permit them to lead evidence in this behalf.
20. I have given my anxious consideration to the aforesaid submission.
21. A distinction must be made between omission to state material facts and omission to give full particulars. If material facts are omitted, a party should not be allowed to raise a contention on a particular point even if, some materials are available in the evidence. If on the other hand material facts have been pleaded but full particulars have not been given the Court may permit the points to be raised on the basis of the evidence unless the opposite party is thereby materially prejudiced. The first obviously relate to a question of jurisdiction and the second to one of procedure.
22. It is settled law that though liberal consideration to the pleadings is to be given so as to allow any question to be raised and discussed covered thereunder yet a party cannot be deemed to be entitled to a relief upon the facts and documents neither stated nor referred to in the pleadings relied upon. It was observed by the Privy Council in the case of Saddik Mohammed Shah v. Mr. Saran and Ors., reported in AIR 1930 Privy Council 57(1) that where a claim has never been made no amount of evidence can be looked into upon a plea which was never put forward. A decision of a case cannot be based on grounds out side the pleadings of the parties and it is the case pleaded that has to be found. It should, however, not be lost sight of that consideration of form cannot over-ride the legitimate consideration of substance. If a plea is not specifically made and yet it is covered by an issue by implication and the parties know that said plea was involved in that event, a mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence.
23. It may, however, be noticed that the obvious effect of the order striking out the defence against eviction as contemplated under Section 13(6) of the Act, is that the defendant stands restricted from raising any plea which could affect the pleadings of the plaintiff as set out in the plaint in regard to the matter relating to the default, which is a ground envisaged under Section 12(1) of the Act, for the grant of the decree. As pointed out by the Apex Court in the case of Modula India v.Kamakshya Singh Deo, reported in AIR 1989 SC 162, in case of the defence having been struck off, the defendant cannot be held to be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the plaintiff's case.
24. A Division Bench of this Court in its decision in the case of Kewal Kumar Sharma v. Satish Chandra Gothi and Anr., reported in 1991 MPLJ 458 1991 .JLJ 86, had also clarified that the issues other than those relating to eviction based on the grounds under Section 12(1) of the Act, can all be tried and even if the defence against eviction is struck out, the tenant shall have a right to contest all other issues specifying that where apart from the relief of ejectment, a decree for arrears of rent is also claimed and if the tenant denies the arrears of rent or claims adjustment, an issue shall have to be struck down relating to arrears of rent. It was emphasised that the tenant is, however, precluded from leading evidence on the issues covering the grounds under Section 12(1) of the Act, on which the decree is claimed.
25. In the present case what I find is that in view of the order dated 6-3-1995, the defence against eviction set up in the written statement by the defendants had been struck out. The obvious result of such striking out of the defence against eviction was that under a statutory fiction made available as envisaged under Section 13(6) of the Act, the material facts which formed the edifice of the defence against eviction had to be taken to be totally absent and could not be deemed to have been pleaded. The assertions of facts constituting the pleadings in regard to the rate of rent clearly amounted to defence against eviction and since by statutory fiction these material facts could not be deemed to be there in the written statement and were liable to be ignored altogether, there could be no occasion to permit the defendants to lead evidence in support of a plea which was not there at all.
26. In the aforesaid view of the matter, I am not at all impressed with the submissions made by the learned counsel for the appellants and I am clearly of the opinion that it was on account of their own conduct that the defendants stood placed in a situation like this. They cannot be heard to complain about the want of opportunity to lead evidence in support of a plea which could not be deemed to have been put forward at all in the defence. The contention raised by the learned counsel for the appellants is not at all acceptable.
27. The learned counsel for the appellants has further contended that the Courts below had acted with manifest illegality in altogether omitting to consider the provisions contained in Section 12(11) of the Act, which provides that no order for the eviction of a tenant shall be made on the ground specified in clause (o) of sub-section (1), if the tenant within such time as may be specified in this behalf by the Court vacates the portion or portions of the accommodation not let to him and pays to the landlord such amount by way of compensation as it may direct.
28. What has been urged by the learned counsel for the appellants is that the trial Court while upholding the ground envisaged under Section 12(l)(o) of the Act, did not provide for the relief as envisaged under Section 12(11) of the Act.
29. So far as the aforesaid aspect is concerned, suffice it to say that the decree of eviction of the tenant from the premises let out to him is based on the grounds envisaged under Section 12(l)(a) and (c) of the Act, also.
30. The provisions contained in Section 12(l)(o) of the Act, envisage the grant of a decree for the eviction of the tenant from the portion which had been encroached upon or taken possession of in an unauthorised manner which portion did not form part of the tenancy. It is in this view of the matter that a relief is provided to a tenant under Section 12(11) of the Act, to protect his tenancy confined to the portion which had been let out to him in case he vacates the encroached portion not let out to him and pays to the landlord such amount by way of compensation as directed by the Court. In case, therefore, a tenant vacates the portion encroached upon in an unauthorised manner and pays to the landlord the amount determined towards compensation, his tenancy stands saved, only in that event where his eviction therefrom is not called for in view of the landlord's having established any other ground under the Act, which may justify the grant of a decree for eviction of the tenant from the portion let out to him. In a case, however, where the ground for eviction of the tenant from the portion let out to him is solely based on the ground envisaged under Section 12(1 )(o) of the Act, in that event; the tenant could save his tenancy by vacating the portion encroached upon by him and by paying the amount of compensation to the landlord.
30A. It seems to me that in essence the provisions contained in Section 12(11) of the Act, has to be treated as a proviso to Section 12(l)(o) of the Act. It cannot be taken to go beyond that.
31. In the present case, no such situation could be deemed to have arisen. The trial Court had granted a decree for eviction of the tenant-appellants on the grounds envisaged under Section 12(l)(a) as well as 12(l)(c) of the Act, also. In such a case, there could be no occasion for the defendants to save their tenancy by vacating the portion of the building encroached upon by them and on payment of the amount of damages for use and occupation determined therefor, and therefore, it was not necessary for the trial Court to provide a time limit during which the encroached upon portion of the building could be vacated.
32. The contention of the learned counsel for the appellants indicated hereinabove, is clearly without any merit and is not at all acceptable.
33. The learned counsel for the appellants has next contended that the Courts below have acted as an expert while holding the receipt exhibit P/l to have been signed by Paramanand in regard to the payment of Rs. 750/- as rent for a period of three months. What has been urged is that no expert evidence had been led in the case and it was incumbent upon the plaintiffs to have examined an hand-writing expert to establish that the aforesaid receipt had been signed by Paramanand.
34. The Courts below have noticed that there was no pleading in the written statement which could lead to an inference that the receipt was forged or fictitious.
35. It should not be lost sight of that an hand-writing expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act. The quality of the opinion depends upon the soundness of the reasons on which it is founded. But the Court cannot afford to overlook the fact that the signs of identification of hand-writing is imperfect or frail one as compared to the signs of identification of finger prints. The Courts have been therefore vary in placing the implicit reliance on such opinion evidence. Since such opinion evidence cannot take the place of substantive evidence, the Courts have as a rule of prudence looked for corroboration before acting on such evidence. But that is not to say that it is a rule of prudence of general application regardless of the circumstances of the case and the quality of the evidence. No hard and fast rule could be laid down in this behalf but the Court has to decide each case on its own merit what weight it should attach to the opinion of the expert. If there exist anomalous striking peculiarities and mannerisms which stand out to identify the writer, the Court could act on the expert evidence.
36. It must, however, be emphasised that the expert witnesses is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspects of the case by explaining the terms of science so that the Court although not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the expert but of the Court. Obviously, it is the Court's opinion that matters.
37. In the present case, both the Courts below have taken into account various facts and circumstances of the case and the evidence available on the record including the nature of the pleadings for coming to the conclusion that the genuineness of the receipt in question could not be doubted.
38. The findings returned against the defendants concurrently by both the Courts below on the aforesaid question does not appear to suffer from any such legal infirmity which may justify interference therein by this Court.
39. The learned counsel for the appellants has tried to assail the findings returned against the tenant-defendants by both the Courts below upholding the establishment of the requisite conditions envisaged under Section 12( 1 )(a) and (c) of the Act. The findings on material questions of fact in this behalf is based on an appraisal of evidence brought on the record. These findings do not appear to suffer from any such legal infirmity which may justify an interference therein in the present proceedings by this Court while exercising the limited jurisdiction envisaged under Section 100 of the Code of Civil Procedure, 1908.
40. No substantial question of law is involved in this appeal which may require consideration by this Court.
41. This appeal lacks merit and is accordingly dismissed in limine under Order XLI, Rule 11 of the Code referred to hereinabove.