Punjab-Haryana High Court
Yogesh Kumar vs Inder Kumar on 1 July, 2015
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M)
:1:
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
1.
Regular Second Appeal No.1682 of 2010 (O&M)
Date of decision: 1.7.2015
Yogesh Kumar
... Appellant
Versus
Inder Kumar
... Respondent
2.
Civil Revision No.7062 of 2011 (O&M)
Yogesh Kumar
... Petitioner
Versus
Inder Kumar
... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr.Ashok Singla, Advocate,
for the appellant.
Mr.M.K.Singla, Advocate,
for the petitioner in CR No.7062 of 2011.
Mr.S.K.Monga, Advocate,
for the respondent.
*****
1. To be referred to the Reporters or not? Yes.
2. Whether the judgment should be reported in the Digest? Yes.
RAJIV NARAIN RAINA, J.
This order will dispose of RSA No.1682 of 2010 and CR No.7062 of 2011 as both the cases are interconnected and between the same PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) :2: parties. The facts are taken from RSA No.1682 of 2010 for convenience.
The substantial question of law framed by this Court on 8th February, 2011 while admitting the appeals seeking an answer reads : -
"Whether the finding of the courts below that defendant-appellant is not tenant in the disputed shop and that he is only mortgagee therein is perverse and illegal and is based on misreading and miss-appreciation of evidence and is therefore, not sustainable in law?"
2. The contention of both the parties was noticed when the substantial question of law was framed which reads : -
" Heard.
Learned counsel for the appellant inter alia contended that plaintiff is in continuous possession of the disputed shop since the year 1992 as also admitted by the plaintiff in his cross-examination and his possession was not interrupted since 17.10.1997 till 28.10.1997. It is also pointed out that sale deed dated 17.10.1997 in favour of plaintiff-respondent is for Rs.50,000/- only whereas the disputed shop is alleged to have been mortgaged with the defendant-appellant for Rs.2,40,000/- on 28.10.1997. It is contended that defendant-appellant in fact tenant in the disputed shop.
On the other hand, learned counsel for the respondent contended that the defendant-appellant in his income tax returns has depicted the disputed PARITOSH KUMAR shop to be under mortgage with him. Counsel for 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) :3: appellant, however, contended that even payment of rent by appellant to respondent has been depicted in accounts book of the appellant.
Learned counsel for the appellant contended that even payment of rent has been depicted in capital account and not in revenue account. Following substantial question of law arises for determination in the instant second appeal."
The case on the Facts.
3. This is defendant's second appeal. The plaintiff's suit for possession by way of redemption of mortgage dated 28th October, 1997 succeeded on 4th May, 2005 in Civil Suit No.63 of 5th February, 2003. The defendant's appeal failed on 14th January, 2010 by appellate decree. By a separate order of even date, the defendant-appellant's application under Order 41 Rule 27 CPC seeking permission to allow him to lead additional evidence has been dismissed. Even in the court of first instance, the defendant had filed an application on 1st February, 2006 for leave to produce additional evidence through which it was sought to be proved that the defendant was a tenant in the suit premises. The dispute between the parties is whether the parties were in a relationship of mortgager and mortgagee or of landlord and tenant.
4. The plaintiff asserts that the relationship is one of mortgager and mortgagee. The defendant denies the relationship and claims that he is a tenant in the demised ground floor premises run as a chemist shop by the defendant. The documents on which reliance is placed by way of additional evidence are part of municipal record being Annexures A-1 to A-4. The remaining are tax returns, account books etc. Annexure A-1 is a leaf from PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) :4: the Assessment Register maintained under Rule VII-2 of the Municipal Rules in Form T.S.1. It relates to the year 1998-99. Plaintiff Inder Kumar is the owner of suit property numbered B-II, 729/1 which is a commercial shop measuring 20' x 20'. In the column of name and address of occupier, it is recorded, "one shop of medicine on rent @ ` 4000/- per month". The amount of proposed tax and final assessment are recorded in Annexure A-1.
5. Annexure A-2 is the House Tax Notice for the year 1998-99 dated 8th June, 1998 issued by the office of Municipal Council, Sunam, addressed to plaintiff Inder Kumar. The property is described as commercial/rented and "self-occupied" but shown "on rent one shop at ` 4000/- per month". The total house tax payable is assessed at ` 8565/-. The document is signed by the Executive Officer, Municipal Council, Sunam.
6. Annexure A-3 is the reply of the plaintiff to the notice under Sections 65 and 67 of the Punjab Municipal (Amendment) Act, 1994. The plaintiff complains that the rental value of that tax assessed is "on very higher side whereas its rental value is very less". The plaintiff prayed that the rental value be decreased and tax may be waived off. The reply is dated 4th August, 1998.
7. The fourth municipal document, Annexure A-4, is a decision of the Committee on the objections filed by the plaintiff regarding valuation and assessment of tax for the year 1998-99. The decision of the House Tax Sub Committee dated 4th September, 1998 reads as follows : -
" Today, on 4.9.1998, applicant appeared before the House Tax Sub Committee and he made his submissions in detail before the Committee on the line of his objections and the committee, after PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) :5: hearing him, finally decided the assessment as Rs.12,000/1620 of the shop on rent and Rs.45,000/3-5 of the self occupied shop. This assessment shall be effective for the assessment year 1998-99. The order is read to the applicant who also signed it."
8. Therefore, the municipal record shows that for the year 1998- 99, the shop in dispute was "on rent" which suggests a reference to a person other than owner of property. However, these 4 documents have been ruled out of consideration with the dismissal of the application under Order 41 Rule 27 CPC by the court of first appeal.
9. Mr.Ashok Singla, the learned counsel appearing for the defendant-appellant, draws the attention of the court to the order dated 14th January, 2007 declining the request for producing these 4 documents etc. as additional evidence. He argues that this means refusal to admit evidence which ought to have been admitted. He submits that these documents were special to the knowledge of Inder Singh plaintiff and militated against his cause set up in the suit but came to the knowledge of the defendant prior to 1st February, 2006 when a similar application was filed before the court of first instance when the trail was taking place. These documents should have been produced by the plaintiff if he were to be seen as approaching the court with clean hands and with full disclosure of material facts for consideration of the Court. The suit was decreed on 4th May, 2006. It is forthcoming from the record that the learned trial court dismissed the application on 4th March, 2006 against which Civil Revision No.1473 of 2006 was filed before this Court by the appellant but the same was dismissed as not pressed. PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) :6:
10. A useful digression from the present appeal paper-book may be necessary to take stock of Civil Revision No.7062 of 2011 which has been ordered to be heard with the main appeal and attached with this case for final decision. The revision arises out of Civil Suit No.129 dated 24th October, 2008 filed by plaintiff Inder Kumar against defendant Yogesh Kumar, the present appellant, for mesne profits after decree in Civil Suit No.63 of 5th February, 2003 was passed in which petition a prayer was made for stay of further proceedings in the civil suit pending revision petition in view of the pendency of the present appeal. Having succeeded in the previous suit from where this appeal arises, plaintiff Yogesh Kumar filed suit in the year 2008 for mesne profits and recovery of ` 2,16,000/- from 27th October, 2005 to 26th October, 2008 @ ` 6,000/- per month along with interest @ 12% per annum for use and occupation of the shop in dispute.
11. The second suit was filed on the premise that the plaintiff had mortgaged the shop in question to Yogesh Kumar and the redemption period of 5 years have expired but Yogesh Kumar did not vacate the shop in question. On 17th November, 2011, this Court issued notice of motion in the revision and notice regarding stay as well after noticing the contention based on the assertion that the petitioner is in possession of the shop as a tenant and not as a mortgagor. In the present appeal, dispossession of the appellant from the premises in dispute was stayed on 29th April, 2010 and the appeal was admitted on 8th February, 2011. On 26th March, 2012 in CR No.7062 of 2011, this Court directed the trial court to adjourn the case beyond the date fixed by this Court. That order has been continued and both the cases have been tagged together. It may be noted that on 20th September, PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) :7: 2013, this Court directed the appellant to deposit a sum of ` 3 lac with the Registrar of this Court as security as envisaged under Order 41 Rule 10 of the CPC with a direction to deposit the same within 4 weeks. Compliance is stated to have been made.
12. To return to the order dismissing the application under Order 41 Rule 27 CPC, Mr.Ashok Singla submits that the application has been rejected for the principal reason that a similar application had been declined by the High Court and this fact has been concealed by the appellant. Since a similar application has been dismissed, then the same evidence cannot be allowed to be adduced by the appellant by way of additional evidence when the same relief has already been declined by the High Court.
13. The learned Additional District Judge, (Ad Hoc), Fast Track Court, Sangrur has been weighed down by concealment and, therefore, a view has been taken that the application has been filed only to delay the decision of the case. Mr.Singla submits that the second court has misread the order of the High Court when the revision was dismissed as not pressed. It did not mean that the request had been declined in as many words and, therefore, the question remained at large before the court of first appeal to be decided in accordance with the provisions of Order 41 Rule 27 of the CPC. And if the ingredients laid down therein were satisfied then refusal to admit evidence which was necessary to be allowed to be adduced was not proper or sound exercise of discretion and jurisdiction. It was not that the plea of tenancy was not taken in defence to the suit. He submits that the defendant had remained in possession since 1992 under Harnam Singh who had inducted him as a tenant at rent of ` 1,000/- per month where a chemist PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) :8: shop was started after completing all the formalities and after obtaining a drugs licence on 9th September, 1992 from the Drug Controller specifically qua the questioned shop since the submission of the site plan of a chemist shop to the drug authorities is mandatory for the grant of drugs licence. Harnam Singh had taken ` 25,000/- as advance security from defendant Yogesh Kumar and had got executed an alleged mortgage deed to avoid the rent laws. Harnam Singh proposed to sell the property to the plaintiff. On 15th October, 1997, defendant Yogesh Kumar paid a sum of ` 2,40,000/- to the plaintiff by cheque No.281821 drawn on PNB, Sunam which was encashed on the same day as proved by the bank statement Ex.D88 at page 177 of the LCR. This amount was given in anticipation of purchase of shop by the plaintiff from Harnam Singh. It is Mr.Singla's submission that the payment was made with the understanding that the defendant will continue as tenant in the shop in question and that in addition to the old rent of ` 1,000/- per month, interest on the aforesaid amount shall be the additional rent. On 17th October, 1997, Harnam Singh sold the shop to the plaintiff for a sum of ` 50,000/- vide sale deed Ex.P25 at page 85 of the LCR.
14. Mr.Singla draws the attention of the court to the recital in the sale deed regarding possession in the words; "kabza bator mushtri de ditta hai" which means, "possession as mushtri/purchaser is delivered", which means only symbolic possession was delivered to Inder Kumar plaintiff and not actual possession of the shop because the actual possession of the shop remained with the defendant throughout since July, 1992 and plaintiff Inder Kumar got possession only of the roof/first floor as is clear from the admission of the plaintiff in his cross-examination in the stand on the PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) :9: suggestion put by the plaintiff by the defendant. In this deposition, it is recorded in the cross-examination of PW1 :- "It is correct that since 1992, the defendant is doing the business of medicine in this shop". In the cross- examination of DW1, it has come out:- "...it is correct that the plaintiff had purchased the shop from Harnam Singh and at that time, plaintiff had taken the possession of its roof."
15. It is the contention of Mr.Singla that Harnam Singh was not examined by the plaintiff to prove, firstly; delivery of actual possession of the ground floor of the disputed shop to Inder Kumar on sale; and secondly, to prove the taking of actual possession by Yogesh Kumar before sale; and thirdly, to prove the redemption of alleged mortgage by Harnam Singh by taking actual possession for Inder Kumar, as defendant Yogesh Kumar never admitted the alleged receipt Ex.P3 of alleged redemption by Harnam Singh and the said receipt is inadmissible in evidence by virtue of Sections 17(1)
(c) and 49 of the Registration Act, 1908 from where adverse inference can be drawn against Inder Kumar under Section 114- Illustration (g) of the Indian Evidence Act, 1882.
16. On the legal issues involved in the context of the substantial question of law framed Mr.Singla firstly submits that there is a presumption as to continuity of possession both forward as well as backward in this case and relies on the ratio in Ambika Prasad Thakur v. Ram Ekbal Rai; 1966 (1) SCR 758.
17. Learned counsel submits that on 28th October, 1997, the plaintiff procured the alleged mortgage deed Ex.P1 [at page 47 of the LCR] only to avoid the rent laws to which the defendant had to submit since he PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) : 10 : had a fiduciary relationship and also because the new landlord plaintiff Inder Kumar was in a position of active confidence over existing tenant Yogesh Kumar and thus, Section 111 of the Evidence Act comes into play in favour of the defendant and onus to prove good faith of the alleged mortgage transaction was upon the plaintiff on which count he failed. The recital in the deed regarding delivery of possession i.e. Kabza bator murthin de ditta hai means possession as murthin/mortgagee delivered and this only refers to the symbolic delivery as actual possession was already with the defendant which was continuing since 1992 as tenant and otherwise also, when Inder Kumar himself obtained symbolic possession only, there is no question of actual delivery of possession to the defendant by Inder Kumar of the ground floor of the shop in question which is also clear from the aforementioned cross-examination of the plaintiff and the defendant.
18. Mr.Singla further submits that his client, the defendant Yogesh Kumar, had remained in possession of the suit shop even after its purchase from Harnam Singh by the plaintiff and before the alleged mortgage Ex.P1 by the plaintiff which is proved from Ex.D8 to D54 which are medicine purchase bills and Ex.D58 to Ex.D86- medicine sale bills from 17th October, 1997 to 28th October, 1997 and Ex.D55 to Ex.D57 receipts dated 28th October, 1997 and Ex.D87 electricity bill issued on 20th October, 1997 [at page 96 to 176 of the LCR]. Thus, the possession as tenant was never surrendered for the moot 11 days nor was there any merger of tenancy rights. Even no money was paid for this alleged mortgage on 28th October, 1997 and the plaintiff admitted that the money referred in Ex.P1 is the same money which he had received on 15th October, 1997. So, neither the PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) : 11 : payment on 28th October, 1997 was made, nor on that day possession was delivered. So such recitals in Ex.P1 are not correct and it shows use of influence as contemplated under Section 111 of the Evidence Act. There is a clog on redemption for 5 years in the deed Ex.P1 which further shows that the intention behind execution of the said document was the continuation of possession and it supports the tenancy theory of the defendant and that real transaction between the parties was not that of mortgage and was just a subterfuge. The fact that the sale price of the shop 11 days before was only ` 50,000/- also indicates that this document does not reflect any actual mortgage transaction because actual mortgage value would obviously be less than the sale value. It is also implausible that only after 11 days of the purchase of the shop on payment of the entire price; the plaintiff was in need of money prompting him to mortgage the shop. The prior tenancy did not merge in the subsequent alleged mortgage and even on redemption of the alleged mortgage, no decree for possession can be passed since the tenancy subsists and if it subsists eviction can be had only under statutory rent laws.
19. Mr.Singla explains the events and happenings during the period from 17th October, 1997 from 28th October, 1997 which is the crucial period of 11 days. It is his say that the plaintiff's story of alleged surrender of possession for 11 days is implausible since the defendant had already made payment of ` 2,40,000/- on 15th October, 1997 and no man of ordinary prudence will pay the money also and vacate the shop as well and particularly when the business continued to run as proved from bills Ex.D8 to Ex.D86 and the drugs license Ex.D7 also continued to operate and was PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) : 12 : never suspended and recitals in the sale deed and the alleged mortgage deed are of symbolic possession only and the plaintiff admitted continuous possession of the defendant over the suit shop since 1992 in his cross- examination and also put a suggestion to the defendant in his cross- examination that actual possession only of the roof/first floor of the shop was taken. There is no evidence of any person of the locality to prove the alleged break in possession for this relevant period.
20. To buttress his contentions, Mr.Singla has relied on a selection of judgments on several issues arising which are put pithily in thumbnail. He refers to Sections 91 and 92 of the Evidence Act in order to show that the evidence to prove the real intention of the parties and the real nature of the transaction is admissible. When the mortgage transactions are found sham in such cases, the defendants have been held to be tenants. For this proposition he relies on Bakshi Jaswant Singh v. Pushpa Devi; 1988 (1) PLR 478. There can be no merger of prior tenancy with subsequent mortgagee. For this legal proposition, he relies on Parmar Kanksinh v. Makwana Shanabai; (1995) 2 SCC 501; Cheriyan Sosamma v. Sunderessan Pillai; 1999 (1) RCR (Civil) 559; Des Raj v. Kulwant Singh; 2003 (3) RCR (Civil) 517 and Ajay Kumar v. Gujjar Mal; 2004 (1) RCR (Civil) 577 cases.
21. Even in cases of redemption of subsequent mortgage, the actual possession will remain with the defendant who is a prior tenant, cf. Harbans Lal v. Jagtar Singh; 2000 (4) RCR (Civil) 210.
22. The test for determining lease or mortgage transaction is the consideration which passes the purpose of transaction, cf., Mangala PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) : 13 : Kunhamina v. Puthiyaveetil Paru Amma; AIR 1971 SC 1575. The tenancy can well be proved from the house assessment tax register. He relies on Kaushalya Devi v. M/s Hussan Lal Bishan Lal; 1987 (1) RCR (Rent) 48 in support.
23. On the crucial question where a revision against an interim order is dismissed in limine then what is the legal position, Mr.Singla argues that the same can be challenged in appeal and for this proposition, he relies on the authority in Pohlu Ram v. Gram Panchayat Dharamgarh; 1980 PLJ 24. He re-asserts that the revision was not dismissed. It was dismissed as not pressed obviously showing reluctance of the Court to interfere at an interlocutory stage pending trial where rights to challenge orders remain alive in the appeal against the decree. On the last question on the jurisdiction of the appeal court, he submits that while allowing additional evidence, the appeal court can itself record or direct the trial court to do so. He relies on H.V.Vedavyasachar v. Shivashankara; (2009) 8 SCC 231.
24. Mr.Singla then argues that mortgage deed Ex.P3 relied upon by the plaintiff was intended to remove the yoke of the first mortgage between Harnam Singh and defendant Yogesh Kumar and this direction is hit by Section 17 of the Registration Act. The dismissal of the revision by the High Court will not amount to res judicata.
25. In the main, it is the contention of Mr.Singla that this appeal is eminently fit for remand for consideration of Annexures A-1 to A-4 and ancillary and incidental evidence as above noticed and mentioned in the application, particularly when there is an admission by the plaintiff himself that the shop under assessment is on rent. This admission in writing by the PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) : 14 : plaintiff is well beyond the period from 17th October, 1997 to 27th October, 1997 which eventful period and year is the annus mirabilis of the case and, therefore, the order dated 14th January, 2010 deserves to be set aside being a misreading of the order dated 17th March, 2006 passed by this Court in Civil Revision No.1473 of 2006 challenging the order dated 4th March, 2006 passed by the Civil Judge (Junior Division), Sunam.
26. According to Mr.Singla, the crux of the matter is as to the jurisdiction of the Civil Court to entertain the suit. He urges that a suit for possession by way of redemption of tenanted shop even in the presence of mortgage documents could not have been decreed as the defendant- appellant was inducted in the shop as a tenant and the mortgage documents were prepared just as a security for performance and also to keep pressure upon the tenant. He relies on Bakshi Jaswant Singh and Kaushalya Devi cases [supra] to further his point in furtherance of his submissions that the defendant could be dispossessed only as per the grounds mentioned in Section 13 of the East Punjab Urban Rent Restriction Act, 1949 and the suit is clearly barred in the opening line of the said Section which for ready reference is reproduced below : -
"13. Eviction of tenant:- (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of decree passed before or after the commencement of this act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provision of this Section, or in pursuance of an order made under Section 13 of the Punjab Urban Rent Restriction Act, 1947, as subsequently amended." (underlining for emphasis) PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) : 15 :
27. On the other hand, Mr. Suresh Monga learned counsel appearing for the plaintiff-respondent submits that the shop in question was mortgaged with possession by the plaintiff Inder Kumar to defendant Yogesh Kumar on 28th October, 1997 by virtue of registered mortgage deed Ex.P1 [at page 47 of the LCR] in lieu of mortgage money amounting to a sum of ` 2,40,000/-. As per recital in the mortgage deed, possession of the shop was given to Yogesh Kumar on 28th October, 1997 in lieu of user of the shop and no amount of interest was required to be paid to Yogesh Kumar. The mortgage was for a period of 5 years, i.e., 28th October, 1997 to 27th October, 2002 after the expiry of which period, the suit was instituted.
28. Mr.Monga criticizes the theory built by the defendant that he was a tenant of Harnam Singh till 17th October, 1997 and he never relinquished possession of the shop to Harnam Singh though a mortgage deed executed between the defendant and the plaintiff on 28th October, 1997 but actually, he continued as a tenant. This is not correct position in fact. The plaintiff filed replication and controverted the theory and pleaded that the erstwhile owner Harnam Singh had got the shop redeemed by making payment of a sum of ` 25,000/- to defendant Yogesh Kumar on 17th October, 1997 and possession of the shop was delivered back to him, i.e., to Harnam Singh. In this manner, Harnam Singh recovered possession and executed sale deed dated 17th October, 1997 in favour of the plaintiff and delivered possession to him on the same day. Thereafter, the mortgage deed was executed between the plaintiff-respondent and the defendant-appellant on 28th October, 1997 in lieu of mortgage money to the tune of ` 2,40,000/-.
29. Mr.Monga submits that onus to prove that the defendant was a PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) : 16 : tenant was on him and not on the plaintiff. He submits that the defendant failed to produce on record any rent receipt/rent note in order to prove himself as a tenant in the shop in question. The documentary evidence brought on record by the plaintiff cannot be defeated by oral evidence in view of the provisions of Sections 91 and 92 of the Indian Evidence Act. He refers to a single judge decision of this Court in Narender Mohan v. Hari Ram; 2008 (2) RCR (Civil) 69 that where there is a written agreement to sell, oral evidence with regard to terms of agreement cannot be accepted. Learned counsel then submits that the defendant admitted execution of the mortgage deed Ex.P15 in his cross-examination but tried to wriggle out of the submission by retracting that his Advocate had wrongly made statement regarding the mortgage in the said documents. He refers to page 207 of the LCR. Even again, if the defendant maintained that the amount of ` 2,40,000/- was a loan amount and not mortgage money, he never filed any suit for recovery of the loan within the period of limitation.
30. Mr.Monga has cast doubt on the bills and receipts produced by the defendant to show that he was engaged in the business during the 11 days gap. Those do not qualify as evidence since the defendant was unable to disclose who issued the bills since he had not signed them. Likewise, in Ex.D27 to D57, the defendant was unable to say as to whose writing it bore. He submits that the Courts below have correctly not relied on those documents and have disbelieved them nor can it be ascertained whether those bills relate to the same premises. It has also come in evidence that the brother of the defendant is also running a shop at a short distance from the shop in dispute and in that shop, they have a whole sale drug license PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) : 17 : business running in the name and style of Chopra Medical Hall. In this manner, Mr.Monga broaches the subject of the municipal record at Annexures A-1 to A-4 and on this; he submits that entries in the assessment register with regard to house tax cannot be relied upon to establish tenancy. He relies on a ruling of the Supreme Court in Dnyaneshwar Ranganath Bhandare and another v. Sadhu Dadu Shettigar (Shetty) and another; 2012 (1) RCR (Civil) 499 (SC). Mr.Monga submits that the municipal record might show possession but will not prove tenancy and this is the difference and the ratio of the decision in Dnyaneshwar Ranganath. In this case which involved the question whether parties were governed by a lease or a license with the defendant therein claiming tenancy rights by producing some tax receipts of suit property paid to the municipality. However, no rent receipts were produced by defendant showing payment of rent to the landlord. Moreover, the defendant did not claim that the payment of tax was a part of rent. Therefore, it was held that production of tax receipts do not prove tenancy and the defendants are gratuitous licencees. Noticeably, in the case, there was no admission by the owner of tenancy in the municipal record to which the defendant was not a party. I then do not see how this case can be of any substantial help to the plaintiff as it is distinguishable on facts. There was no admission of tenancy by the landlord.
31. Mr.Monga then cites the Supreme Court decision in Union of India v. Ibrahim Uddin and another; (2012) 8 SCC 148 on the scope of Order 41 Rule 27 of the CPC that additional evidence should normally not be allowed at the appellate stage. The areas of interference have been delineated by the Supreme Court and the tests to determine the question has PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) : 18 : been laid down. If the additional evidence is found to have important bearing on the main issue or is found to be necessary to remove any lacuna in evidence and for clearing any doubt for pronouncing judgment and required in the interest of justice, it may be allowed. For this see paragraphs 36 to 49. It would be apt to add that the observation made by the Supreme Court also said in the context of pronouncement of judgment that it should be "satisfactory judgment" and therein lies the door of perception. This binding authority cuts both ways and casts a substantial burden on the shoulders of the appellate court to weigh all factors in a balance of justice within the ingredients prescribed in Order 41 Rule 27 of the CPC and establish from record whether refusal to admit evidence is proper and such a determination will have to be made from case to case. The true intent of this judgment in fact comes in favour of the defendant on two counts; that it cannot be said that Annexures A-1 to A-4 etc. should be lightly brushed aside as not worthy of consideration at all and secondly, the reason for dismissal should stand the test of judicial scrutiny. But on a reading of the impugned order declining the request it cannot be said that relevant considerations have gone into making of the order. The order rests on an assumption which is incorrect and wholly fallacious because the revision was dismissed as not pressed but it did not foreclose reception of additional evidence for all times to come and never to be read by a court of law.
32. In the facts and circumstances the real substantial question of law which emerges and on which a better part of the day was spent debating whether this case is fit for remand, is:
" Whether the order dated 14 January, 2010 dismissing PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) : 19 : the application under Order 41 Rule 27 for additional evidence was justified and in order looking to the nature of the documents sought to be produced for which the case deserves to be remanded or not?
33. A great deal of arguments were addressed by both the sides as to why this case ought or ought not to be remanded to the court of first appeal to examine the effect of municipal record in the light of the admissions made by the plaintiff in that record, of tenancy where the demised premises are described as "on rent" in the year 1998 following the year of the material transactions in 1997. If there is an admission of this kind, it is worthy of being considered by the first appeal court before this Court takes a view in the second appeal.
34. In Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 the Supreme Court dealt extensively with the scope and ambit of Order 41 Rule 27 of the Civil Procedure Code and the inherent limitations and restrictions placed by the provisions on court and have carved a few exceptions only in cases where the court "requires" reception of additional evidence "for any other substantial cause": The Supreme Court held in quintessence by following its earlier dicta in K. Venkataramiah v. A. Seetharama Reddy, AIR 1963 Supreme Court 1526; Municipal Corpn. of Greater Bombay v. Lala Pancham, AIR 1965 Supreme Court 1008; Soonda Ram v. Rameshwarlal, AIR 1975 Supreme Court 479 and Syed Abdul Khader v. Rami Reddy, AIR 1979 Supreme Court 553 in paragraphs 36 and 47 of the report of the last case; as under:-
"36. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) : 20 : entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself."
"47. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed."
(emphasis added)
35. After hearing both the learned counsel on two occasions and at great length, this Court has found itself tilting towards setting aside the order dismissing the application under Order 41 Rule 27 of the CPC and to remand the case. I am inclined to think that a "satisfactory judgment" as delineated in cannot be rendered and wholesomely and judiciously pronounced without examining the effect of the documents in settling the issue of tenancy vis-à-vis mortgage.
36. In this situation, Mr. Monga lastly refers to the decision of the Supreme Court in Zarif Ahmad (D) through Lrs and another v. Mohd. Farooq; 2015 (1) RCR (Civil) 794 : AIR 2015 SC 1236 where the Court dealt with the issue of remand of case in appeal. The Supreme Court laid down that the appellate court has the power to remand but only in rare situations, a case be remanded, for example, when the trial court has disposed of a suit on a preliminary issue without recording evidence and giving its decision on the rest of the issues which was not an element present in the case before the Court, and it was observed that a remand makes the parties to wait for the final decision of a case for the period which PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) : 21 : is avoidable. I do not think that the learned counsel can draw much help from this case. Delay in proceedings can be taken care of without much difficulty and balance it with the demands of substantial justice. Therefore, in order to tide over the hardship which may be caused by prolonging litigation, there was a broad consensus that the matter should be remanded to the court of first appeal since the documents which are to be referred exists in the record of the Municipal Committee, Sunam and can be produced readily and taken cognizance of to return proper and judicious findings as to the real relationship between the parties, that is, mortgagor- mortgagee or landlord-tenant of which this case is really all about.
37. After having given my thoughtful consideration to the arguments raised by both the sides, this Court is of the view that the order dismissing the application under Order 41 Rule 27 CPC is not legally sustainable and is, therefore, set aside. The appeal is allowed. The judgment and decree of the court of first appeal dated 14th January, 2010 is set aside. The case is remanded for consideration of additional evidence as prayed for in the applications both before the court of first instance and in the court of first appeal. Consequently, the revision petition is allowed and proceedings in Civil Suit No.129 dated 24th October, 2008 being interdependent on the result of the remand proceedings on the question of tenancy are ordered to go on, if not concluded, but neither interlocutory nor final judgment be pronounced in the suit till the fresh judgment is passed and the appellate decree in drawn in the remand proceedings. In case the suit has been decided, the decree, if any, will remain inexecutable co-terminus with the final determination by the lower appellate court. The two questions framed PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document RSA No.1682 of 2010 (O&M) & CR No.7062 of 2011 (O&M) : 22 : are answered accordingly in favour of remand by keeping the first question framed at the time of admission open.
38. However, this order will not be taken as an expression of opinion on the additional evidence which would now be produced nor would the appellate court be influenced by anything said in this order as it is not, nor is intended to be an expression on the merits of the case. The case of both the sides will be held in the balance of justice. The judgments relied upon by both the sides have been noticed only in the understanding of the case and the court of first appeal will remain free to examine each of those rulings carefully by culling out their ratios and applying it to the facts of the case as would emerge after remand and when the additional evidence stands adduced. In making the order of remand, it may be noticed that both the parties were heard on Section 107 of the CPC read with Order 41 Rule 23 and Order 41 Rule 23-A and Order 41 Rule 1A read with Section 105 of the Code of Civil Procedure, 1908. The appeal court will endeavour to decide the remand proceedings as expeditiously as possible and preferably within 6 to 8 months from the date of receipt of this order. The parties will bear their own costs.
(RAJIV NARAIN RAINA) JUDGE July 1, 2015 Paritosh Kumar PARITOSH KUMAR 2015.07.02 11:42 I attest to the accuracy and authenticity of this document