Punjab-Haryana High Court
Ram Sarup (Deceased) Through Lrs. vs Sat Pal Suri on 20 February, 2004
Equivalent citations: (2004)138PLR845
Author: J.S. Narang
Bench: J.S. Narang
JUDGMENT J.S. Narang, J.
1. The plaintiff-respondent filed a suit for ejectment against the defendant-appellants and also the suit for recovery of Rs. 1500/-. The brief facts are as under:
2. The plaintiff-respondent is the owner and landlord of Booth No. 125, Sector 37-C, Chandigarh. The defendant-appellant was a tenant in the aforestated premises at a monthly tenancy of Rs. 750/- excluding water and electricity charges. The demised premises had been leased out sometimes in the month of April/May, 1978. It has been alleged that the defendant-appellant did not prove to be a good tenant and that he also fell into arrears, resultantly, the tenancy was determined by virtue of a notice dated 4.1.1982, which had been sent through registered post at the two addresses notified by the defendant-appellant. The said notice was received back undelivered and sub- sequently, another notice dated 1.2.1982 had been sent, the receipt of which was again avoided and that the notice was subsequently sent under Postal Certificate. It is the admitted case that the said building was exempted from the operation of East Punjab Urban Rent Restriction Act because on the date of filing of the suit, the period of 5 years had not expired since the installation of the electricity connection in the demised premises. Thus, the suit for ejectment and recovery of rent had been filed by the plaintiff-respondent.
3. The defendant-appellant contested the suit. However, it has been admitted that the plaintiff-respondent is the owner and the landlord of the demised premises. It has been pleaded that the rent at the rate of Rs. 750/- P.M., in fact, stood paid by defendant upto September, 1982. However, the terms and conditions as spelt out in the plaint in respect of the tenancy wherever not suitable to the defendant-appellant have been denied and instead the reliance has been placed upon the rent agreement stated to have been executed between the parties. The receipt of the notice has been denied and it has been categorically stated that at no given point of time, the defendant-appellant had ever avoided the receipt of the notice, and that in fact, no notice had been sent by the plaintiff. It has also been pleaded that the rent having been received and accepted by the plaintiff upto September, 1982, the suit is therefore pre-mature and the same deserves to be dismissed on this ground alone. It has also been alleged by the defendant-appellant that the plaintiff was, in fact, in need of money and he had asked for a loan of Rs. 10,000/- but the defendant was possessed of only a sum of Rs. 7500/- which was paid to him on 7.12.1981 as advance rent against a receipt which was executed on the aforestated date Another plea has been set up that the possession of the defendant-appellant stood protected under Section 53-A of the Transfer of Property Act, 1882 as he had performed his part of the contract and is also ready to complete and perform all other terms and conditions and acts spelt out in the agreement.
4. Upon the pleadings of the parties, the issues had been struck and the parties have led documentary as well as ocular evidence in support of the issues, the onus of which has been casted upon them respectively and so also to prove their respective pleadings.
5. However, the trial Court has returned a finding in respect of the notice by holding that the notice can be said to have been served upon the defendant-appellant but the said notice is not legal and valid, as such, the tenancy had not been terminated/determined accordingly. Thus, it has been noticed that the provisions of Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as the Act) are not applicable to the present case as the said provisions are not applicable in the stricto senso to Chandigarh, Punjab and Haryana but the principles still do apply. The finding has been returned accordingly. So far as maintainability of the suit is concerned, it has been held that in pursuant to the receipt dated 7.12.1981 Ex.Dl is concerned, the same has been duly proved as such, the rent has been held to have been paid for the month of December, 1981 to September, 1982 and the same has been accepted to have been received through his attorney. Therefore, the suit is not maintainable being pre-mature. It has also been held that in pursuant to the rent agreement marked as mark A the lease deed had been executed for a period of 5 years with effect from 1.3.1978 to 28.2.1983. It has been noticed that the said rent agreement had not been registered, though compulsorily required to be registered, can be looked into as evidence of the defendant in support of the plea that the lease is to expire on 28.2.1983 and not earlier. It has been further held that as a sequel thereto, the rights of the defendant are protected by virtue of Section 53-A of the Act upto the period of lease. Thus, in view of the findings returned by the trial Court, the suit filed by the plaintiff has been dismissed vide judgment and decree dated 9.4.1986.
6. The plaintiff-respondent being dissatisfied, filed an appeal before the lower Appel- late Court. The evidence has been re-appraised and the lower Appellate Court has re- versed the findings of the trial Court by holding that the receipt Ex.Dl had been forged by Shri Ram Saran Goyal son of the defendant-appellant and that the said document is a creation after the defendant-appellant had been duly served before the trial Court. The document has been created as an aid to set up a false plea to bring himself within the rigor of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as "the Rent Act"). The exemption was to expire on 17.9.1982 and, therefore, by creating the said document, the rigor of the Rent Act would come to the aid of the defendant-appellant. Thus, by virtue thereof, it may become incumbent upon for the plaintiff-respondent to seek the eviction of the defendant-appellant, if sustainable under law. Since the receipt has been termed as a forged document, the necessary consequence is that the findings on issue Nos.2 and 3 were also reversed by the lower Appellate Court accordingly. Resultantly, the benefit under Section 53-A of the Act did not ever become avail- able to the defendant-appellant and that the finding in respect of writing the tenancy for a period of 5 years in pursuant to the rent agreement marked as Mark 'A', has also been reversed in view of the law laid down by this Court in re Chairman, Corporation Bank and Anr. v. U.S. Sandhu and Ors. 1987(1) Rent Law Reporter 652:(1988-2) Rev.L.R. 325 wherein the dicta of the Privy Council has been relied upon accordingly. In pursuant thereto, it has been categorically held that on account of the non-registration of the rent agreement, compulsorily registerable, the term of the tenancy could not be inferred and that reliance could only be placed for collateral purpose i.e., projection of relationship of landlord and tenant only. The cumulative effect has been that the appeal has been allowed and that the judgment and decree of the trial Court has been set aside, as a sequel thereto, the suit filed by the plaintiff-respondent has been decreed accordingly by virtue of judgment and decree dated. 27.2.1992.
7. The defendant-appellant being dissatisfied with the aforestated judgment and decree of the lower Appellate Court, has filed the present appeal with the prayer that the judgment and decree of the lower Appellate Court is based on totally erroneous findings and that the findings returned by the trial court are comprehensively justified and that the suit filed by the plaintiff-respondent has therefore been correctly dismissed.
8. During the pendency of the appeal, the appellant is stated to have died and by virtue of Miscellaneous Application, the legal heirs have been ordered to be impleaded vide order dated 6.10.2003 passed by N.K.Sud, J. Resultantly, the correction has been carried out in the memorandum of parties. It may be noticed, that while admitting the appeal, it had been directed that the defendant-appellant shall continue to pay the future rent which shall be without prejudice to the rights of the parties. The order dated 29.7.1992 reads as under:-
"Present: Mr. H.L. Sibal, Sr. Advocate, with Mr. Sidhharth Sarup, Advocate Mr. Arun Jain, Advocate Admitted.
Stay to continue.
Mr. Arun Jain, states that arrears of rent are due since 1.11.1989. Arrears of rent w.e.f. 1.11.1989 till 31.7.1992 be paid within two months against receipt to the respondents/counsel. Future rent be paid by 10th of the following month for each month. If the appellant fails to abide by this direction then the stay granted shall stand vacated. This arrangement shall be without prejudice to the rights of the parties.
Sd/-
July 29, 1992 Judge".
9. Learned counsel for the appellant has almost reiterated the arguments addressed before the trial Court. However, additionally, it has been argued that the receipt Ex.Dl has been incorrectly brushed aside by the lower Appellate Court. It is the case of the defendant-appellant that the said receipt contains the signatures of the holder of General Power of Attorney of the plaintiff, i.e., Shri D.P.Suri. It is nowhere the case of the plaintiff-respondent that the General Power of Attorney issued in favour of Shri D.P. Suri had been withdrawn/recorded before the execution of the receipt Ex.Dl. The perusal of the report of the Forensic Expert, which has not been exhibited on account of withdrawal of the application by the plaintiff-respondent, leads to irrestible conclusion that the receipt contains the signatures of D.P.Suri holder of General Power of Attorney. A novel plea has been set up by the expert produced by the plaintiff-respondent that the revenue stamps containing the signatures of the holder of General Power of Attorney have been lifted from another document and the same have been pasted upon the document in question i.e. Ex.Dl. The other plea is that the signatures of the holder of General Power of Attorney have been seen on two stamps upon the disputed document but the line which is drawn under the signatures has not left ink mark upon the paper through the perforated hole through the joint stamp. This shows that the stamp containing signatures of the General Power of Attorney had been lifted from another document and the same have been pasted upon the document in question and that the word D.P. Suri is stated to have been written which do not match with similar words written upon the other receipts. This has been countered by the argument of the learned counsel to the effect that sometimes drawing the line upon the joint stamp, the ink released from the pen may not leave an ink dot upon the paper through the perforated hold as the pen may not release that much ink accordingly. However, the plaintiff-respondent while appearing as his own witness PW2 has stated in cross-examination that the rent had been paid upto December, 1982. He has further stated that the General Power of Attorney issued in favour of D.P.Suri was withdrawn in July/August, 1980 but he admits that even thereafter, the defendant had been paying the rent to D.P.Suri and he had been receiving it accordingly. In this regard, reference has been made to the receipt issued for the rent having been received for the month of October, 1981, which has been exhibited as Ex.PA/9, and so also the receipt issued for having received rent for the month of January, 1981 Ex.PA/23 and also the receipt of rent for the month of May, 1981 Ex.PA/24. The thrust of the argument is that if the Power of Attorney stood withdrawn in the month of July/August, 1980, the rent could not have been received by the holder of the General Power of Attorney and that the landlord would have claimed the rent for those months as well but in his examination in chief, rent has been allegedly claimed v/kh effect from 1.1.1982. Learned counsel has also pointed out that in his cross-examination, the plaintiff-respondent has categorically stated that his brother D.P.Suri had told him that rent upto December, 1982 has been paid by the defendant. This categoric admission on the part of the plaintiff-respondent has been brushed aside by the lower Appellate Court without any cogent reasons. He has further pointed out the statement of Shri U.P.Jindal, DW1, who has affixed his signatures as a witness upon the disputed document Ex.Dl. This witness has categorically stated that he identifies the signatures of D.P.Suri upon the said document. This statement has not been demolished by giving any suggestion that in fact these signatures are not those of D.P.Suri but only suggestion has been given that D.P.Suri did not affix his signatures in his presence, which has been categorically denied and he has further stated that the money in fact had been paid in his presence.
10. It has been further argued that the trial Court has correctly held that the notice was served but the tenancy had not been terminated legally and validly whereas the lower Appellate Court has fallen into error while holding that the tenancy had been determined on the premises that if the period of 15 days does not coincide with the end of the month, it shall not vitiate the termination of the tenancy because Section 106 of the Act is not applicable in Punjab and so also Chandigarh. Thus, the lower Appellate Court has incorrectly reversed the findings in respect thereof.
11. It has been further argued that the lower Appellate Court has incorrectly drawn adverse inference against the defendant-appellant on the premises that D.P.Suri has not been produced by the defendant-appellant before the trial Court. It is a mater of fact that D.P.Suri had been called for the purpose of giving specimen signatures to be compared with the disputed document, i.e. Ex.Dl and that he had come present but had not been examined accordingly for the reasons best known to the plaintiff-respondent. The argument is that D.P.Suri is the brother of the plaintiff-respondent and why a witness who would presumably depose against the defendant-appellant should be required to be examined as a witness. Suffice it was to have obtained his specimen signatures for proving the document which had been executed by him and that the factum of having received by him a sum of Rs. 7500/- stands established by the witness who has affixed his signatures as attesting witness, i.e. U.P.Jindal, who has deposed before he trial Court for proving the payment, which has not been demolished by the plaintiff-respondent. Infact, the plaintiff-respondent was required to produce D.P.Suri for disproving the document in question, i.e., Ex.Dl. If the genuinity of the document was at stake and the execution thereof has been denied, it was incumbent upon the plaintiff-respondent to have produced D.P.Suri as a witness for corroborating the denial of the execution of the said document. It is the settled law that adverse inference cannot be drawn, if it is factually established that production of said document would be injurious to the plea/defence of the party. In support, thereof, learned counsel has placed reliance upon various judgments of the High Court and so also the Apex Court which are as under:
"Dhruv Green Field Ltd. v. Hukam Singh and Ors. A.I.R. 1967 S.C. 1134, Virendra Kumar Saklecha v. Jagjiwan and Ors. A.I.R. 1974 S.C. 1957, Bhagwan Dass v. Bishan Chand and Ors. A.I.R. 1974 Punjab and Haryana 7, Sunder Lal and Anr. v. Mst. Dulari and Ors. A.I.R. 1979 Punjab and Haryana 154, Hari Singh and Anr. v. Kishan Chand 1985 H.R.R.. 635, Vidhyadar v. Manikrao and Anr. 1999(3) Supreme Court Cases 573."
12. It has been further argued that the rent agreement, which has been marked as mark 'A', though compulsorily registerable, had not been registered but for collateral purposes, the document can be read into evidence. The trial Court, therefore, read the document for the purpose of defining the period of tenancy and so also the relationship of the .parties as landlord and tenant. The lower Appellate Court has fallen into error by holding that the document could not have been read for proving the period of the tenancy. In support thereof, learned counsel has placed reliance upon various judgments of the High Court and so also the Apex Court which are noticed as under:
13. Milkha Singh v. Mst. Shankari and Ors. A.l.R. 1947(34) Lahore 1, Maneklal Mansukh Bhai v. Hormusji Jamshedji Gimvalla and sons, A.l.R. 1950(37) Supreme Court, Mohammed Sadruddin Khan v. Gulam Mohiuddin, A.l.R. 1953 Hyderabad 97 and Teja Singh v. Ram Parkash Talwar (deceased) by LRs. and Ors., A.l.R. 1984 Punjab and Haryana 95.
14. He has fairly referred to the judgment against him, i.e. Chairman, Corporation Bank and Ors. v. IIS. Sandhu and Ors., 1987(1) Rent Law Reporter 652 (P&H) (supra) but for distinguishing the same, reference has been made to para 13 of the judgment.
15. It has been further argued that the advance payment received by the landlord is good payment and it cannot be said that the said payment received cannot be accepted as a set off against the rent which would be due and payable. In support of the argument, reliance has been placed upon judgments of this Court and so also the other courts, i.e., Mangat Rai and Ors. v. Kidar Nath and Ors., 1980(2) Rent Law Reporter 678, K. Narasimha Rao v. T.M. Nasimuddin Ahmed, A.l.R. 1996 S.C. 1214:J.T. 1996(3) S.C. 181.
16. It has been further argued that the lower Appellate Court has further fallen into error by holding that the defendant-appellant did not produce statement of accounts for establishing the factum of having paid the amount of Rs. 7500/- towards rent and the appropriation thereof in the subsequent months accordingly. It was not necessary to pro- duce the books of accounts qua corroborating the aforestated factum. The attesting witness, who has established the fact of receipt of Rs. 7500/~ as rent for the months defined in the receipt, is enough evidence to hold that the rent had been duly received in advance for the said months.
17. On the other hand learned counsel for the plaintiff-respondent has argued that the executant of the disputed receipt Ex. Dl was necessarily required to be produced by the defendant-appellant to avoid adverse inference being drawn against him. Reliance has been placed upon a judgment of the Apex Court rendered in re. Gopal Krishnaji Ketkar v. MohammedHajilatif and Ors., A.l.R. 1968 S.C. 1413.
18. He has also drawn my attention to the zimni orders dated 21.5.1983, 8.6.1983 and 30.1.1984 which read as under:-
"Present: Parties counsel.
In view of the statement made on behalf of the defendant, this file shall be taken up on 8.6.83 for DWs at the responsibility of the defendant. Summons in respect of D.P.Suri can be got issued today on PF/RC, Sd/-
S.J. 21.5.83."
"Present : Shri Walia Shri Mittal Shri D.P.Suri present has made a statement that he has no objection in giving his specimen signatures. Shri Walia contends that there is no provision for getting the specimen signatures of a witness unless an oath is administered to a witness. Shri Mittal contends to the contrary. For arguments on 9.6.83.
Sd/-
S.J. 8.6.83."
"Present : Shri Walia Shri R.K.Mittal with defendant.
Order : Statement of Defendant recorded.
Shri D.P.Suri has denied the documents mark A8, Mark E. No other DW is present. Now taken up on 25.2.84 for remaining DWs. Summons may be taken dasti on PF. No further adjournment shall be given.
Sd/-
S.J. 30.1.84."
19. It has been pointed out that despite the fact that D.P.Suri was present in Court and that his specimen signatures had been obtained without any order of the trial Court and that despite the opinion of the expert, the said executant of the receipt has not been examined by the defendant-appellant knowing well that the fate of the said forged receipt shall be sealed as the alleged factum of corroboration of the fact of having received the amount would not be established. Infact the onus was on the defendant-appellant as the reliance upon the receipt has been placed by him and it was incumbent upon him to prove that the rent with effect from December, 1981 to September, 1982 stood paid. It may also be seen that the rent was never ever paid by the defendant-appellant but is alleged to have been paid by his son, who had no locus to pay the rent. It has nowhere been established that the rent was paid for and on behalf of the defendant-appellant. He has admitted in his cross-examination that he was not present at Chandigarh when the alleged rent amounting to Rs. 7500/- had been paid. Though he had stated that he used to obtain the receipts but in the same breath, he has stated that he has not seen all the receipts of rent issued by the landlord as his son was dealing with him. He has also admitted that he never used to pay the rent, it is because of this reason the statement of accounts were never produced for establishing the appropriation of the amount of Rs. 7500/- alleged to have been paid as rent from December, 1981 to September, 1982. The cumulative reading of the facts brought on record do not establish the genunity of the receipt Ex.Dl. There is no pleading to the effect that Ram Saran son of defendant-appellant had paid the rent for and on behalf of the Ram Sarup Goyal, i.e. the defendant-appellant. In the absence of such pleadings, the rent allegedly having been paid by Ram Saran cannot be accepted to have been paid for and on behalf of the defendant-appellant and that any argument beyond the pleadings though based on the evidence cannot be' looked into. In support of his argument, reliance has been placed upon the judgments of the Apex Court rendered in re : Siddu Venkappa Devadiga v. Smt. Rangu S. Devadiga and Ors., A.I.R. 1977 S.C. 890 and in re : Vinod Kumar Arora v. Smt. Surnit Kaur, A.I.R. 1987 S.C. 2179.
20. It may be noticed that no receipt, which has been tendered into evidence and re- lied upon by the defendant-appellant, had ever been written by the defendant or his son because all of them are typed except the disputed document, i.e. Ex.Dl. Where did the need arise for writing the receipt in the handwriting of the son of the defendant-appellant. It is obvious, the document is a cooked up document and has been created by way of forging the signatures of the holder of the General Power of Attorney and that the attesting witnesses thereon are the witnesses who would out and out support the plea, right or wrong, honest or dishonest, of defendant-appellant being his friends and known to him. It may also be noticed that on all other receipts, there is not even a single attesting witness the receipts have been produced on record which have been exhibited but the disputed receipt is the only document upon which two witnesses have been shown as attesting witnesses and that they have stated that a sum of Rs. 7500/- had been paid in their presence. It has not been established as to why it became necessary that the said amount should be witnessed by two witnesses. The document is a sham document and has been admittedly forged. Thus, to cover up the forgery, the attesting witnesses have been shown upon the said document and who have corroborated the dishonest plea based upon such forged document as they have appended their signatures thereon. Thus, the document does not inspire confidence whatsoever.
21. It has been further argued that so far as the creation of tenancy for the period of 5 years is concerned, the same has not been established by way of any piece of evidence except the alleged rent agreement alleged to have been executed for a period of 5 years. It is the requirement of the law as contained under the provisions of the Registration Act, that a rent deed/lease deed which is executed for a period of more than 12 months, the document is compulsorily registerable. If the document had been executed genu- inely, where was the hitch to get it registered. It is obvious, the said document had also been created to manipulate the period of the tenancy to reflect it beyond the period of completion of the building because admittedly, the electric connection had been installed in the month of September, 1977 and if the tenancy is created for the period of 5 years, obviously, thereafter, the rigor of East Punjab Urban Rent Restriction Act, 1949 would become applicable. The trial Court definitely fell into error by reading the tenancy for a period of 5 years because to read such fact into evidence, it is compulsory that the docu- ment should have been registered but the document admittedly has not been registered. This fact of period of tenancy cannot be read as applicable between the parties. In this regard, reference has been made to Section 49 of the Indian Registration Act. However, such a document can be read into evidence for a limited collateral purpose, i.e., for de- fining the relationship between the parties, which has not been denied by any one. The cumulative reading of both the documents i.e. Ex.Dl and mark A, i.e., the forged receipt and the rent agreement, the endeavour on the part of the defendant-appellant becomes for too obvious i.e., the object is to show that the tenancy had been created for a period of 5 years and therefore, the rigor of the East Punjab Urban Rent Restriction Act, 1949 becomes applicable. If this is accepted, the suit shall have to be necessarily dismissed. The forging of the document Ex.Dl would reflect the benefits in favour of defendant- appellant, i.e., if the rent is shown to have been received into September, 1982, the pe- riod of 5 years would be established which would directly effect the maintainability of the suit. It is a miserable effort which has been made by the defendant-appellant by forging and creating both the documents accordingly. Thus, the plea as projected under Section 53-A of the Act is not at all available to the defendant-appellant. The lower Ap- pellate Court has correctly declined reliance upon the aforestated provisions. Reliance has been placed upon a judgment of this Court in re : Chairman, Corporation Bank's case (supra), which does not apply and help the defendant-appellant.
22. So far as revocation of General Power of Attorney by the plaintiff is concerned, he has categorically stated that the same had been revoked in the month of July/August, 1980 and that the defendant-appellant had been orally informed in this regard. There is no doubt that some rent had been received by the then holder of General Power of At- torney, i.e. Shri D.P.Suri which has been denied by the plaintiff-respondents as the same had been honestly delivered to him by Shri D.P.Suri, despite the fact that: the General Power of Attorney executed in his favour had been revoked. If there was an element of dishonesty on the part of the plaintiff-respondent, he could have claimed rent for the said period but the same has not been claimed though D.P.Suri was not legally entitled to receive the rent but since the same had been received, there was no reason to deny. Thus, the totality of the facts brought on record have been examined by the lower Appellate Court succiently and as a result thereof, the correct finding has been returned accordingly, which has led into setting aside of the judgment and degree of the trial Court. The trial court has totally misconstrued the facts brought on record and fell into grave error in reading the period of tenancy as 5 years from a document, which was compulsorily required to be registered but admittedly it has not been registered. Apart from this, the original of the same had not been called for and, therefore, had not been correctly proved and exhibited. In fact the said document could not be looked into evidence for any purpose. On the other hand, the lower Appellate Court has correctly opined that the said document could not be looked into for any purpose except the collateral purpose.
23. After hearing learned counsel for the parties and perusal of the pleadings and also the documentary evidence referred to from the record of the Courts below by the counsel for the parties and also going through the statement of witnesses who have de- posed before the trial Court, I am of the opinion that no case has been made out for inerfering in the judgment of the lower Appellate Court.
24. The pivotal document, i.e. Ex.Dl an alleged receipt stated to have been issued by the holder of General Power of Attorney of the plaintiff has been correctly disbelieved by the lower Appellate Court. The document-does not inspire confidence as the endeavour and the effort made for creation of the said document has been completely demolished. Thus, the rigor of applicability of provision of the East Punjab Urban Rent Restriction Act to the property situated at Chandigarh in view of the gestation period provided in the notification has not been established. Further, the effort on the part of the defendant-appellant in this regard by placing reliance upon another document i.e. the rent-deed which admittedly had not been registered which was compulsorily required to be registered, stands completely belied, as such, the tenancy cannot be said to have been created for 5 years, resultantly, applicability of the Rent Act. Additionally, the original of the same had never been summoned or asked for by the appellant in accordance with law. The trial Court has, therefore, correctly declined to take that document into evidence as the same had not been exhibited but had been marked leaving the opportunity open to other defendant-appellant to prove the same in accordance with law of evidence but no effort in this regard seems to have been made by the defendant-appellant. However, the trial Court definitely fell into error while reading the period of tenancy as 5 years from such document. It is the settled law that a document which is compulsorily required to be registered, has not been registered the same cannot be looked. nto or looked at for any other purpose except for the collateral purpose and that being the relationship of landlord and tenant between the parties, which has never ever been denied by the plaintiff-respondent. The cumulative reading of the defence taken by the defendant-appellant seems to be that the suit is premature on the premises that the rent stood received upto September, 1982, the month in which the period of 5 years would expire and that the property would become subjected to the Rent Restriction Act and that the tenant shall be entitled to the protection under the said statute. If that period is not accepted, the plaintiff would be well within his rights to evict the tenant upon any other ground which has been set up by him in the plaint.
25. So far as the service of the notice is concerned, it has been accepted by the parties that the provisions of Section 106 of the Transfer of Property Act are not applicable to the property which is subject-matter of the suit. However, the principles are applicable and that the trial Court has opined that the notice stood served upon the defendant ppellant but fell into error while holding that the period of 15 days did not expire with the last day of the month of the tenancy, this was not applicable and that the lower Appellate Court has correctly non-suited the defendant-appellant in this regard. Thus, the tenancy stood determined between the parties accordingly.
26. Another aspect which needs to be examined is that an amount of Rs. 7500/- has been alleged to have been received by the plaintiff through the holder of General Power of Attorney, this reflects a doubt as no supportive evidence has been brought on record by the defendant-appellant as to under what circumstances and in what manner, the plaintiff-respondent had asked for the loan from the tenant, in the absence of the attendant circumstances. It docs not inspire confidence that the plaintiff-respondent was ever in need of the money and he had ever asked for such kind of the loan from defendant- appellant. The perusal of the language of the receipt does not give any reason as to why the landlord had asked for rent from the month of December, 1981 to September, 1982, i.e., for a period of 10 months. It was incumbent upon defendant-appellant to have summoned D.P.Suri the holder of General Power of Attorney of the plaintiff-respondent to clarify such payment in advance. However, no effort whatsoever had been made despite the fact that D.P.Suri had appeared before the Court while giving specimen signatures to be compared with the signatures appearing on Ex.Dl. Perhaps the defendant-appellant was aware of the status of the receipt and in fact the cumulative reading of the zimni orders when D.P.Suri had appeared shows that he had declined having affixed signatures upon Ex.Dl, if he had stepped into witness box, the story set up by the defendant-appellant for the loan having been asked for by the plaintiff-respondent would have been clearly and categorically falsified or proved as the case may be. Thus, in the absence of no cogent reasons having been spelt out for establishing the" reason for receiving the sum of Rs. 7500/- as loan for 10 months and coupled with the reasoning given by the handwriting expert which have been correctly appreciated by the lower Appellate Court, I am of the opinion that placing reliance upon such a document against the claim of the plaintiff-respondent is too dangerous. The defendant-appellant has not been able to spell out his own conduct by producing his statement of accounts vide which it could have been ascertained so far as the payment of Rs. 7500/- is concerned. It is the settled law if a statement of account is maintained in the regular course of business, the reliance can be placed, but in the present case, no such effort is seen to have been made by the defendant-appellant for corroborating the fact of adducing the attendant circumstances for having made such payment to the plaintiff-respondent. There is no doubt the liability cannot be fastened only on the basis of the sole statement of account as is envisaged under Section 34 of the Indian Evidence Act, 1872 but if such a statement is produced and the entries are proved by virtue of other attendant circumstances of corroborative evidence, the reliance can be placed for accepting the entry.
27. In the case at hand, the other receipts, signed by D.P. Suri, have been produced, the perusal of these receipts, which are almost 10/12 in number, shows that the revenue stamps worth 20 paise have been generally affixed but on the receipt in question, two stamps of 10 paise each are shown to have been affixed. The minute perusal of the same shows that the ink through the perforation did not get settled upon the page, thus, the opinion of the handwriting expert that the stamps have been lifted from another document and have been pasted upon the document in question cannot be ruled out. Apart from this, another glaring factor which needs to be noticed is that this is the only receipt where two attesting witnesses have appended their signatures but no other receipt projects such character. The plea has been taken that the amount was more and the amount having been taken as a loan by the plaintiff-respondent, therefore, the two witnesses were asked to attest the same. This plea is not at all tenable as the perusal of the language of the receipt does not show anywhere that the said amount has been given as a loan to be appropriated as rent for a period of 10 months. The reason for asking the amount as advance rent is not forthcoming by any piece of evidence. If the amount had been given truthfully and honestly as a loan, the fact would have been definitely mentioned and in that case attestation of the same by two witnesses could have been justified but in the absence of the same, the alleged receipt being attested by two witnesses is not at all justifiable.
28. Thus, the arguments of counsel for the appellant are devoid of any merit and in fact no question of law arises for consideration of this Court, all the arguments in fact relate to and are pointed towards the appreciation of the factual evidence once all over again which has been appreciated by the Courts below and that the reasoning given by the lower Appellate Court deserves to be accepted.
29. In view of the above, I find no reason to interfere in the judgment of the lower Appellate Court vide which the suit of the plaintiff-respondent has been decreed. Resultantly, the appeal is dismissed.
No order as to costs.