Madras High Court
K.R.Sivadesikan Pillai vs Ravichandran on 24 March, 2014
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 24.03.2014 Coram: THE HON'BLE MR. JUSTICE P.R.SHIVAKUMAR S.A. No.550 of 2006 K.R.Sivadesikan Pillai ... Appellant ..vs.. Ravichandran ... Respondent Second Appeal filed under Section 100 of the Civil Procedure Code to set aside the judgment and decree of the learned III Additional Subordinate Judge, Coimbatore dated 11.10.2002 made in A.S.No.78 of 2001 confirming the judgment and decree of the learned I Additional District Munsif, Coimbatore dated 15.11.2000 made in O.S.No.2184/1998. For Appellant ... Mrs.P.V.Rajeswari For Respondent ... Mr.C.R.Prasannan J U D G M E N T
The plaintiff in the original suit O.S.No.2184/1998 on the file of the I Additional District Munsif, Coimbatore is the appellant in the second appeal. The defendant therein is the respondent in the second appeal. The appellant filed the above said suit for recovery of a sum of Rs.19,500/- from the respondent on the premise that he had paid a sum of Rs.15,000/- towards rental advance on 28.8.1987 while taking a shop in door No.507, Trichy Road, Singanallur, Coimbatore measuring 8' x 16' for rent from the respondent; that the lease arrangement was for 10 years and at the end of the lease period he surrendered possession of the said shop on 28.8.1997; that the defendant, who ought to have returned the said amount on 28.8.1997, failed to do so and that therefore, the respondent/defendant was liable to pay interest on the said amount at the rate of 24% per annum from 28.8.1997.
2. The suit was resisted by the respondent herein/defendant contending that though there was a negotiation between the appellant and the respondent for letting out the said shop portion to the appellant and an agreement came to be executed, since the appellant had prepared it for a period of 10 years instead of the agreed period of three years, the respondent did not induct the appellant as tenant in respect of the said shop and the appellant also did not make any payment towards rental advance; that though the rental agreement came to be signed by the parties, it was not given effect to; that under the above said circumstances, the appellant who was aggrieved by the refusal on the part of the respondent to let out the said property, preferred a complaint with the police as if after his induction as a tenant, in his absence, the respondent broke open the shop and took away things worth Rs.4,500/-; that the said complaint was referred as mistake of fact, pursuant to which, the appellant filed a private complaint, which was ultimately dismissed by the learned Magistrate; that the said order of the Magistrate dismissing the complaint was also confirmed in appeal and that thereafter, the appellant, with false averments, came forward with the suit for recovery of the above said amount.
3. Besides the above said contentions, the respondent also contended that the suit based on the rental agreement, which was not duly stamped and was unregistered, was not maintainable and that in any event, since even according to the admission made by the appellant in the criminal proceedings he was deprived of possession of the shop before February 1988 itself, cause of action for recovery of possession and also for refund of advance amount would have arisen in 1988 itself; that the suit was filed after the lapse of 10 years thereafter and that hence the suit was hopelessly barred by limitation.
4. Based on the above said averments, the learned trial Judge framed an issue as to "whether the appellant/plaintiff was entitled to recover the amount claimed in the plaint?" and another issue as to "the other reliefs to which the appellant/plaintiff was entitled?" and conducted a trial. In the trial, two witnesses were examined as PWs.1 and 2 and the unregistered rental agreement dated 28.8.1987 came to be produced and marked as Ex.A1. The appellant/defendant, besides deposing as DW1, produced the documents relating to the criminal proceedings initiated by the appellant herein as Exs.B1 and B2.
5. At the end of the trial, the learned District Munsif, who considered the evidence in the light of the arguments advanced on both sides, came to the conclusion that Ex.A1 was not admissible for want of registration. It also arrived at a conclusion that the appellant was admittedly dispossessed in the year 1988 itself, but he chose to file the suit after a lapse of 10 years. Besides such finding, the learned I Additional District Munsif rendered a further finding that the appellant was not able to prove payment of Rs.15,000/- as advance. The consequence of the above said findings of the trial court was the result of dismissal of the suit, holding the appellant/plaintiff not entitled to the decree as prayed for in the suit.
6. As against the decree of the trial court dated 15.11.2000 dismissing the suit filed by the appellant, an appeal was preferred on the file of the learned III Additional Subordinate Judge, Coimbatore in A.S.No.78/2001. The learned lower appellate Judge, after hearing, held that the agreement dated 28.8.1987 did not come into force and that the claim of the plaintiff for refund of the advance amount was hopelessly barred by limitation. Ultimately, the learned lower appellate Judge dismissed the appeal confirming the decree passed by the trial court. As against the said decree of the lower appellate court dated 11.10.2002, the present second appeal has been filed.
7. The second appeal has been admitted identifying the following to be the substantial questions of law involved in the second appeal:
Substantial Questions of Law:
" 1. Have not the courts below erred in law in dismissing the suit on the basis of Exs.B1 and B2, the judgment of the criminal court, when the findings thereon are not binding on the civil court?
2. Is not Ex.A1 the unregistered lease deed admissible in evidence for providing (sic) the collateral purpose of payment of advance money by the appellant?
8. The arguments advanced by Mrs.P.V.Rajeswari, learned counsel for the appellant and by Mr.C.R.Prasannan, learned counsel for the respondent are heard. The materials available on record are also perused.
9. At the outset, this court wants to point out the fact that there is absurdity in the pleadings incorporated in the written statement of the respondent herein/defendant. The plaint averments are repeated in paragraphs 2 to 5 with the pre-fix "the allegation that". From the above said paragraphs, the court cannot arrive at a conclusion whether such allegations are admitted or disputed. Only in paragraph 6 the denial regarding the payment of rental advance, the date of vacation of the premises and the alleged refusal to return the advance amount has been provided. However, during trial, DW1 admitted that the negotiation for an agreement letting out the petition premises to the appellant/plaintiff, namely a shop bearing door No.507, Trichy Road, Singanallur, Coimbatore measuring 8' x 16', were made. In his evidence, the respondent/defendant has admitted the execution of the document dated 28.8.1987. However, he would say, since the appellant had prepared the document as a lease deed for 10 years as against the agreed term that the lease should be for three years, the said transaction was not acted upon. The said contention of the respondent is far from being convincing or probable. If at all he was not agreeable for the term incorporated in the lease deed that the lease period would be 10 years as against the agreed period of three years, he could have very well refused to sign the document and make the document an inchoate one not fully executed.
10. On the other hand, there are clear admissions made by the respondent/defendant that he himself signed the said document. Evidence has also been adduced on the side of the appellant to the effect that the mother of the respondent/defendant also was one of the attestors of the document. As such, the only viable contention available to the respondent/defendant was that the said document was inadmissible in evidence, as it offended section 17 of the Registration Act, 1908. It is not in dispute that a lease deed prescribing 10 years as the lease period is compulsorily registrable under Section 17 of the Registration Act. As per Section 49 of the Registration Act, such a document, if not registered shall not be admitted in evidence. However the proviso to Section 49 provides that such a document can be used for the purpose of proving a collateral transaction.
11. In this case, what the appellant/plaintiff has attempted is not to prove any right under the lease agreement (lease deed), but he has made an attempt to prove the collateral transaction of the obligation of the respondent to return Rs.15,000/- with interest by the production of Ex.A1. Therefore the reception of Ex.A1 for the above said purpose, cannot be found fault with. The courts below, have omitted to consider this aspect and at the same time, chose to render a finding as if no amount was paid under the said document by the appellant. The said finding can even be termed perverse. However, it cannot be contended that the plaintiff was non-suited for the relief solely based on the finding that Ex.A1, being unregistered lease deed for 10 years, was inadmissible as piece of evidence. Hence this court comes to the conclusion that the said document is admissible for the above said collateral purpose. However want of registration of Ex.A1 was not the sole ground on which the appellant/plaintiff was non-suited. The first substantial question of law is answered accordingly.
12. The appellant's further contention is that the plaintiff was non-suited solely based on Exs.B1 and B2, namely the judgment rendered by a criminal court and the evidence adduced by the appellant/plaintiff in the criminal trial. Of course it is true that those two documents have been referred to and relied on by the courts below, but the findings of the courts below are not solely based on those two documents. The evidence of PW2 is enough to support the contention of the respondent that though there is no direct proof to show that Ex.A1 was not acted upon. There is also ample evidence to prove that the appellant/plaintiff was out of possession from 9.2.1988. Even if those two documents are discarded, there is admission of PW1 and PW2, the wife of the appellant/plaintiff that at the time of lodging of the complaint, she had gone to Palani to deliver her first child. All the facts relating to the previous proceedings were not disputed by the plaintiff's side witnesses. On the other hand, PW1 has admitted the same. Though PW2 would have pleaded absence of memory, the proper appreciation of evidence adduced by the witnesses examined on the side of the appellant/plaintiff, namely PWs.1 and 2, who are husband and wife, shows that there is no document to show that the appellant was doing business in the suit premises any time after 9.2.1988. There is also no evidence that the appellant regained possession after the above said date.
13. Under such circumstances, the right to seek refund of the advance amount or recovery of possession of the property as a tenant would have accrued in 1988 itself and the appellant/plaintiff did not take any such steps. From the date of dispossession itself, the cause of action for refund of advance amount had arisen. As such, the suit should have been filed within three years thereafter. As he has caused a delay of more than 10 years, the claim of the appellant/plaintiff is hopelessly barred by limitation. Hence on the question of limitation itself, the plaintiff is liable to be non-suited to the relief sought for in the plaint. The second substantial question of law is answered holding that the decision of the lower appellate court is not solely based on Exs.B1 and B2 and that on the other hand, even if the said documents are discarded, the appellant/plaintiff shall not be entitled to the relief sought for in the plaint, as the relief is hopelessly barred by limitation.
14. For the above said reasons, this court comes to the conclusion that the second appeal deserves to be dismissed confirming the decree of the trial court dismissing the suit, which was confirmed by the lower appellate court.
In the result, the second appeal is dismissed. The judgment of the trial court dismissing the suit, which was confirmed by the lower appellate court, is confirmed. However, there shall be no order as to cost.
24.03.2014 Index : Yes Internet : Yes asr To
1.The III Additional Subordinate Judge, Coimbatore
2.The I Additional District Munsif, Coimbatore P.R.SHIVAKUMAR J., (asr) JUDGMENT IN S.A. No.550 of 2006 24.03.2014