Orissa High Court
Ramachandra Das vs Hiralal Modi on 15 February, 1978
Equivalent citations: AIR 1978 ORISSA 172
JUDGMENT K.B. Panda, J.
1. The unsuccessful defendant in both the Courts below is the appellant in this second appeal.
2. The plaintiff had, filed a suit in his capacity as the trustee of Parbati Bai estate against the unsuccessful defendant who was a tenant in respect of a house situated in Behodebehari Lane, Town Cut-tack on a monthly rent of Rs. 125/-. The defendant fell into arrears of rent from 1-9-1970. So the suit was filed for realisation of rent of Rs. 4,500/- from 1-12-1970 to 1-12-1973, the claim for rent for some months having been given up as barred by limitation.
3. The defendant substantially took the plea in the written statement that the suit is not maintainable in law on the ground that the plaintiff has no locus standi to file the suit because Narsingha Das and Onkarmal were the trustees of the Parbati Bai estate and not the plaintiff. Besides, points of limitation had also been raised.
4. The learned lower Court framed the following issues:--
1. Is the suit ag framed maintainable?
2. Has the plaintiff any cause of action against this defendant?
3. Has the plaintiff any locus standi to institute the suit?
4. Is the claim barred by law of limitation?
5. Is there any relationship of landlord and tenant between the parties with respect to the suit house?
6. Is the defendant entitled to adjust Rs. 1750/- towards repair of the house?
7. To what relief the plaintiff is entitled?
5. Mr. Murty, learned Counsel for the appellant in view of the concurrent findings of the Courts below raised a single point of law, namely, that the plaintiff having sued in the capacity as a trustee for Parbati Bai estate and that stand having been negatived by the Courts below, the decree passed in favour of the, plaintiff In nig individual capacity cannot stand.
6. This contention is covered by issues Nos. 1, 3 and partly 5, The findings of the trial Court in respect of these issues are as follows:--
"In order to substantiate his plea of authority, he has also averred therein that Shri Narsingha Das and Onkarmal were appointed as trustees in the will on record, but no such will has been exhibited. However, these trustees, namely, Narsingha Das and Onkarmal are dead and the document under which the plaintiff is claiming rent does not show that the plaintiff is the trustee and as such institution of the suit by the plaintiff as a trustee is not maintainable in law. Now referring to the document on the strength of which the plaintiff is now claiming rent i. e. (is?) Ext. 1, executed in the year 1966. Admittedly this is a document executed between the plaintiff and the defendant xx xx xx This recital is quite sufficient enabling the plaintiff to institute the present suit against the defendant. It is immaterial on the part of the defendant to find out the fault at this moment, taking the plea that in the capacity of the trustee he is not entitled to the rent as he is estopped to raise such plea at this moment."
Thereafter the learned lower Court has discussed the authenticity of Ext. 1.
7. The learned lower appellate Court in this regard has observed thus:--
"It was submitted by the learned Advocate for the respondent that the word "trustee" in Oriya is equivalent to the word "Marfatdar" and as such in this case the plaintiff claimed the right in his own right and not as a trustee. He further submitted that the learned lower Court came to the conclusion that there was a clear recital in para. 3 of the agreement. ......
XX XX Xx XX He rightly came to the conclusion that it was quite sufficient to show that the plaintiff was entitled to file the suit against the defendant and it is immaterial on the part of the defendant to take the plea at this moment that the suit was filed in the capacity as a trustee and as such not entitled to rent. In view of the previous payments as per the documents Exts. A to A/9, the defendant cannot take such a plea at this stage."
Thus the concurrent finding of both the Courts is that the plaintiff has claimed the rent in his own right and not as a trustee. But this is contrary to the pleadings as will be discussed hereafter.
8. In the plaint filed on 3-12-1973 the plaintiff has been described thus:--
"Hiralal Modi, Trustee, Parbati Bai Estate of Nayasarak, town and District Cuttack ...... Plaintiff."
There, Initially Hiralal Modi signed as the plaintiff on 3-12-1973. But since that was not in conformity with the allegations in the plaint, a petition was filed by Hiralal on 21-1-1974 permitting him to sign the plaint and the verification as a trustee of Parbati Bai estate. The Court on that day mentioned in the order sheet:--
"......Plaintiff files permission petition to sign the plaint on behalf of trust estate of Parbati Bai and prays in another petition to take back the document......."
9. The sole witness for either side is the plaintiff Hiralal Modi who examined himself as P. W. 1 and defendant who examined himself as D. W. 1. At the evidence stage the case took a different turn. In it Hiralal Modi described himself as the plaintiff and stated thus:--
"I am the plaintiff in this suit. The defendant is a monthly tenant under me @ Rs. 125/- p. m.
XX XX XX XX Parbati Bai is dead 50 years back. Hence I was not realising the rent from defendant on behalf of Parbati Bai but in my own capacity.
XX XX XX XX I am claiming the rent of the house in the capacity of the son of the brother of Parbati Bai. I have instructed accordingly to my lawyer at the time of drafting of the plaint. It is not a fact that my father Narasingha Das is the son of Kaluram. It is not a fact that Parbati Bai expired in the month of September, 1970."
As against this, defendant in his statement asserted that he had taken the house on rent from Parbati Bai and "Parbati Bai was collecting rent from me through P. W. 1."
10. The rent receipts Exts. A to A/9 show that the rent has been realised by Hiralal Modi on behalf of Parbati Bai.
11. The specific plea in the written statement challenging the status of the plaintiff ig in the following words:--
"That the plaintiff has no locus standi to file the present suit as from the papers filed by the plaintiff it appears that the so called trustees Sri Narasingha Das and Onkarmal who were alleged to have been appointed as trustees therein are dead and their legal heirs have not at all been appointed as Trustees by the said Smt. Parbati Devi in respect of the premises in question. As such Hiralal Modi is not the Trustee as alleged.'' From the above quotations from the plaint, the written statement and evidence as well as from the judgments it would be patent that the case of the plaintiff has evidently undergone a change. Initially it was as though he was suing as a trustee for Parbati Bai estate. Later at the time of evidence he gave up that stand and took the stand as though he had filed the suit in his personal capacity. The Courts below granted a decree in his personal capacity. The question for consideration is if this is permissible.
12. The well-known principle of pleadings is that no evidence should be allowed contrary to it. In this case, the pleadings were that the plaintiff was suing as a trustee for Parbati Bai and not in his individual capacity. Thus the evidence led by him that he was suing in his individual capacity should not have been allowed much less a decree on that score. The plaint, the petition dated 21-1-1974 and even the first descriptive portion of Ext. 1 is as if Hiralal Modi was suing as a trustee for Parbati Bai. In Ext. 1 on which both the Courts have granted the decree it is stated "Ambhe Deceased Parbati Bai Marfat Through Hiralal Modi." If Ext. 1 was in his individual capacity the description of Hiralal should not have been on behalf of Parbati Bai. This both the Courts have evidently lost sight of and have allowed evidence to be led contrary to the pleadings. Consequently the finding arrived at is not in consonance with the pleadings and they have granted a decree to Hiralal Modi in his individual capacity and not as a trustee for Prabati Bai estate.
13. Mr. Murty, learned Counsel for the appellant relied on the case law of Union of India v. Sankar Store AIR 1974 Orissa 85 wherein it is stated thus (at p. 88) :--
"I think, it is well settled that where a party has failed to set up a case in his pleadings he is debarred from leading evidence in its support at the stage of trial. Thus the plaintiffs having omitted to plead a case that they obtained title to the goods at Calcutta on paying full price for it, through their agent, to the consignor, evidence in that regard should not have been allowed to be led and if led should not have been considered."
He also referred to AIR 1916 P. C. 217 --Sulaiman v. Biyaththumma -- wherein it is said:--
"Under Section 59, Civil Procedure Code of 1882 (Order 7, Rule 14), a document relied on as creating rights sought to be enforced in a suit must be produced in Court when the plaint was presented or a copy thereof must be filed with the plaint, and a document not so produced but treated in the trial Court as a piece of evidence, could not later be put forward as creating rights."
The latter decision he relied on to exclude from the taking into consideration Ext. 1 which forms the basis of the decree granted in favour of Hiralal in his individual capacity. These principles of law enunciated by him are well established to need any detailed discussion. Further from the quotations made above, it would be clear that the plaintiff has made a change of front and the Courts below have admitted evidence contrary to the pleadings. Faced with this situation Mr. Mohanty, learned Counsel for the respondent drew my attention to Order 7. Rule 18 C. P. C. and Section 167 of the Evidence Act. Order 7, Rule 18 C. P. C. provides thus :--
"(1) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint, and which is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(2) Nothing in this rule applies to documents produced for cross-examination of the defendant's witnesses, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory.'' Relying on this it was contended that Ext. 1 was confronted to the defendant while he was in the box and therefore it need not have been filed along with the plaint. If Ext. 1 would not be postulating something contrary to the pleadings, there would be no legitimate objection to its use against the witness while he was in the box. But to make it the basis of the plaint is something different. Law is clear that if you base your claim on any document, that would be filed along with the plaint or at least a copy of the same should be appended to the plaint. The purpose evidently is to apprise the defendant about the basis of the plaintiff's claim. Here the foundation of the plaintiff's claim was that he was a trustee for which he filed the trust deed and that he wanted to take back on 21-1-1974 and not Ext. 1. Thus Order 7, Rule 18 has no application. So far as Section 167 of the Evidence Act is concerned, that postulates that :--
"The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case if it shall appear to the Court before which such objection is raised that independently of the evidence objected to and admitted there was sufficient evidence to justify the decision or that if the rejected evidence had been received it ought not to have varied the decision.' I fail to understand why this was cited. In this case, admission of Ext. 1 has given a new complexion to the case in that Hiralal who was suing as a trustee for Parbati Bai became the real plaintiff and not Parbati Bai estate. If that document is given a go by there is nothing else on record on which the decree can stand. In other words, independent of this Ext. 1, there is no evidence on which it can be said that plaintiff is the real owner of the house and was suing in his individual capacity. I am conscious that the defendant is in arrears of rent. But for that, one cannot go out of his way and twist facts and law to grant him relief. Hiralal Modi sued as a trustee and his stand all through till he led evidence was that he was a trustee for Parbati Bai. But later at the time of evidence, he styled himself as the real plaintiff which is contrary to all pleadings, I am also conscious that pleadings in India are to be liberally construed but will not go to the extent of allowing pleadings that are destructive of each other.
14. In the result, therefore, the learned Courts below having proceeded on the basis of Ext. 1 which is inadmissible in evidence and having given a decree contrary to the initial case of the plaintiff, that decree cannot stand and hence it is set aside. The appeal is allowed but in the circumstances, I will order no costs.