Jharkhand High Court
Delhi Cloth & General Mills vs Ram Avtar Bhalia & Anr. on 24 June, 2011
Equivalent citations: 2011 (3) AIR JHAR R 503, AIR 2011 (NOC) (SUPP) 916 (JHAR.), (2011) 3 JCR 397 (JHA), (2011) 2 RENCR 525, AIR 2011 (NOC) (SUPP) 916 (JHA)
Author: Prashant Kumar
Bench: Prashant Kumar
APPEAL FROM THE APPELLATE DECREE NO. 387 OF 2004
with
I.A. No. 1706 of 2011
Against the judgment and decree dated 14.5.2004 and 26.5.2004
respectively passed by Additional Judicial Commissioner ( FTC-III),
Ranchi in Title Appeal No. 78 of 2003 arising out of judgment and decree
dated 29.1.2003 and 7.2.2003 passed by Munsif , Ranchi in Eviction Suit
No. 56 of 1990
1. Delhi Cloth and General Mills Company Ltd., now known as
DCM Limited, New Delhi
2. Delhi Cloth and General Mills Company Ltd. having its Branch
at the Ranchi through its Branch Manager Shiv Prasad
.......Appellants
Vs.
1. Ram Avtar Bhalla
2. Govind Prasad Bhalla ... .....Respondents
For the Appellants : Mr. P.K. Sinha, Sr. Advocate
Mr. A.K. Sahani
For the Opposite Parties : Mr. P.K.Prasad, Sr. Advocate
Mr. Rohit Roy
PRESENT
HON'BLE MR. JUSTICE PRASHANT KUMAR
C.A.V. ON 15.06.2011 DELIVERED ON 24 /06/2011
Prashant Kumar,J: This second appeal is directed against the judgment passed
by Additional Judicial Commissioner, FTC-III, Ranchi dated 14.5.2004 in Title
Appeal No. 78 of 2003 whereby and whereunder he dismissed the appeal
and confirmed the judgment and decree of learned Munsif, Ranchi dated
29.1.2003and 7.2.2003 respectively in Eviction Suit No. 56 of 1990.
2. The fact of the case lies in a narrow compass. Admittedly appellants are tenant of suit premises, details of which described in schedule of the plaint. It is alleged that the appellants defaulted in paying rents from 1st April 1988 onwards. It is also stated in the plaint that plaintiffs/ respondents needs suit premises as the son of plaintiffs/ respondent no. 1, namely, Ramesh Bhalla wants to open a shop of electrical goods in the suit premises. Accordingly , plaintiffs/respondents prayed for eviction of appellants both on the ground of default as well as on the ground of personal necessity.
3. Appellants/defendants contested the suit by filing a written statement.
They contented that the rent for the month commencing from 1st of April 1988 to July 1988 was sent through Bank Draft on the address of plaintiffs/respondents, but they refused to accept the same. It is further stated that thereafter the appellants sent the rent for the said period through money order in the month of August 1988 which also plaintiffs/ respondents refused to accept. It is stated that the appellants thereafter always sent rents of subsequent month through money- order but the same were also not accepted by the plaintiffs/respondents. Accordingly, it is submitted that the appellants are not defaulter within the meaning of Bihar Building ( Lease, Rent & /Eviction) Control, Act, 1982 -2- ( hereinafter referred to as the BBC Act) . Thus they cannot be evicted on the ground of default. It is further stated that Ramesh Bhalla is doing business at Kolkata and Patna. He is not an unemployed person. It is further stated that Hindustan Building in which the suit premises situates is a five storied building and number of shops are vacant in the said building in which plaintiffs/respondent's son can open the electrical shop, if he so wants. It is submitted that in fact the present suit has been filed due to malafide intention as the petition filed by plaintiffs/ appellants under section 5 of BBC Act before the Rent Controller for enhancing rent , has been dismissed. Accordingly, it is stated that plaintiffs/respondents have no personal necessity of the suit premises and therefore on this ground also appellants cannot be evicted.
4. It appears that both the parties adduced evidence oral and documentary in support of their case. It then appears that learned Munsif vide his judgment dated 29.1.2003 decreed the suit holding that appellant defaulted in paying rent from 1st April 1988 onwards and suit premises required by the plaintiffs'/respondent's son for personal necessity. Against the aforesaid judgment and decree, defendant field an appeal i.e. Title Appeal No. 78 of 2003 and the said appeal was also dismissed vide judgment dated 14.5.2004, against that present appeal filed.
5. This appeal has been admitted on the following substantial questions of law:-
(I) Whether the finding of the learned Courts below on default is vitiated due to non-consideration of the documentary evidences,Exhibits-'D','D/1' and Exhibit 'H Series'?
(ii) Whether the learned Courts below has committed serious errors in not discussing and considering as to whether other vacant accommodations in the same building were not suitable to satisfy the need of the landlord and suit premises was required bonafide and in good faith and the alleged requirement was not a mere desire of the plaintiff ?
6. It is worth mentioning that in course of final hearing of this case, appellant has filed an application under Order XLI Rule 27 read with section 51 of the Code of Civil Procedure for adducing additional evidence. A rejoinder to the said application also filed. Thus, before proceeding to decide the substantial questions of law framed in this appeal, I think it proper to decide aforesaid Interlocutory Application. By the aforesaid Interlocutory Application, appellants want to bring on record letters dated 30.4.1988, 8.5.1988 and 19.6.1988.They also wants to bring on record photo copy of three bank drafts of Rs. 500/- each issued by State Bank of India dated 13.4.1988, 5.6.1988 and 15.7.1988 issued in favour of Hardeo Das Bhalla. By the same application, appellants also prayed for bringing on record as evidence annexure- 3 to the I.A. by which one Ajay Maru had given invitation for opening of new establishment, namely, Lighting Studio Hind, owned by Ramavatar Bhalla in Hindustan Building, Main Road, Ranchi.
-3-7. It is submitted by Sri P.K. Sinha learned Senior Advocate that the aforesaid three letters and drafts were filed in the court of Munsif by the appellants along with list of documents. It is further submitted that the said documents may be accepted as additional evidence, because same are necessary for doing justice in the instant case.
8. Sri P.K. Prasad, Senior Advocate appearing for plaintiffs/respondents submits that as per the provision contained under Order XLI Rule 27 , the appellants are required to make out a case for adducing additional evidence. It is submitted that if the appellants are able to show that the ingredients and condition precedent mentioned in Order XLI Rule 27 (1) (aa) are satisfied then only prayer made by them can be allowed. In the instant case, it is submitted that the ingredients and condition precedent mentioned under Order XLI Rule 27(1) (aa) are not satisfied, hence the aforesaid application cannot be allowed.
9. Provisions contained under Order XLI Rule 27 runs as follows:-
27. Production of additional evidence in Appellate Court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment , or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
10. Thus, from the plain reading of aforesaid provisions, it is clear that if appellant shows that even after exercising due diligence the evidence was not within his knowledge or he could not produce the same after exercising due diligence in the trial court then only his application for additional evidence can be allowed.
11. The Hon'ble Supreme Court in K.R. Mohan Reddy Vs. M/s. Net Work Inc. reported in AIR 2008 SC 579 has held at paragraph no. 15 as follows:-
The High Court, in our opinion, failed to apply the provisions of Order 41 Rule 27 of CPC in its correct perspective. Clauses (a), (aa) and (b) of sub-rule (1) of Rule 27 of Order XLI -4- refer to three different situations. Power of the appellate court to pass any order thereunder is limited. For exercising its jurisdiction thereunder, the appellate Court must arrive at a finding that one or the other conditions enumerated thereunder is satisfied. A good reason must also be shown as to why the evidence was not produced in the trial Court.
In the instant case, it is an admitted position that three letters and three bank drafts desired by the appellants to be produced as additional evidence, have already been filed by them in the court below, but in spite of that, they have not produced it as evidence. Thus, it cannot be said that the said documents are not within their knowledge. It further appears that they would have not exercised due diligence for producing aforesaid documents as evidence in the trial court before the decree was drawn up. Under the said circumstance, now at this stage, it is not lawful to allow appellants to produce the said documents as additional evidence. Under the said circumstance, I find no merit in the I.A. No. 1706 of 2011 and the same is accordingly, rejected.
12. First substantial question of law Now, I am proceeding to decide first substantial questions of law framed in this appeal. It is submitted by Sri P. K. Sinha, learned Senior Advocate appearing for appellants that the learned courts below has not considered Exhibits-'D', 'D/1' and Exhibit 'H series' which show that the rents for the month of April , May, June, 1988 were sent through bank drafts which defendants refused to accept the same. It is submitted that section 11 (1)(d) of BBC Act contemplates that if the rent of two months has not been paid or have not been validly remitted then only it can be held that the tenant is in arrears of two months rent. It is submitted that Ext.-'D/1' which is extract of rent register maintained in the head office of appellant no. 1 show that rents for the month of April, May, June 1988 were remitted vide bank draft no. 264242 dated 13.4.1988 , bank draft no. 264333 dated 1.6.1988 and vide draft no. 264396 dated 15.6.1988 respectively. He further submits that Ext-' H Series' are envelopes in which the aforesaid drafts were sent, but same were returned to the appellants with endorsement of refusal made by postal peon D.W. 3 and 4. It is submitted that after the said refusal, appellants sent money order for three months in the month of August 1988 itself which was also refused. It is submitted that this aspect of the matter has not been considered by the court below, thus the finding given by the courts below on the point of default cannot be sustained.
13. Sri P.K. Prasad, learned senior advocate appearing for plaintiffs/respondents submitted that from perusal of Ext.- D , it is not clear that when said draft was sent and drafts in question were prepared in whose favour. Only numbers and dates of said drafts were maintained in Ext.-D. Even in the said Ext.-D number of forwarding letters not mentioned. It also did not appear from the Ext-D that said drafts were remitted on which date, because in the said extract of register though the date of drafts were mentioned but date of its -5- remittance has not been given. Thus from Ext.- 'D' it is not proved that in fact aforesaid drafts were remitted or not. It is then submitted that from perusal of Ext.- 'H Series , it is clear that there is no address on it. Thus, the respondents had not proved by adducing cogent evidence that the said drafts were sent through Ext. 'H series. It is submitted that even D.W. 3 & 4 after looking the envelopes ( Ext-H Series) had categorically stated that they could not say on which address said letters were sent. It is submitted that D.W. 4 also stated that he could not say when said letters were sent. It is further submitted by Sr P.K. Prasad that D.W. 8, who proved Ext.-'D', was an officer of DCM , New Delhi and he stated at paragraph 9 of his depositions that defendants had remitted rent for the month of March of 1988 through bank draft but plaintiffs refused to accept the same. D.W. 8 nowhere stated that defendants remitted rent through bank drafts for the month of April, May and June 1988 which defendants refused to accept. He submits that D.W. 5, who is defendant no. 2 in this case, has also not stated so. Accordingly, it is submitted that in fact there is no evidence to show that at any point of time, the rents for the month of April, May and June of 1988 was sent through bank draft which was refused by the plaintiffs/respondents. It is submitted that learned trial court has considered Ext.-'D' and 'H' and had given a finding that from perusal envelopes 'H' Series, it is not clear that the same was sent on which address. So far Ext.- 'D' is concerned, the same was also considered by learned trial court and has refused to accept it because the same was prepared and maintained in the office of defendant/appellant and therefore no credence could be given to it. It is submitted that the learned first appellate court after going through the record had stated that learned Munsif, Ranchi has rightly held that defendants are defaulter in payment of rent. Accordingly, it is submitted that both the courts below after considering the evidence have come to the conclusion that appellants/defendants are defaulter in payment of rent and they are liable to be evicted.
14. Having heard the submission, I have gone through the Ext.- D, D/1 and H Series. From perusal of Ext.-D, I find that it is an extract of rent register of DCM Company. On the top of relevant page address of Hardeo Das Bhalla mentioned. It then appears that for the month of April, May and June , three drafts were prepared on 13.4.1988, 1.6.1988 and 15.6.1988 bearing No. 264242, 264333, 464396 respectively. But from perusal of the Ext.- 'D' it is not clear that when the same have been remitted. Nor the receipt of postal number was mentioned on it. Thus, there is nothing in Ext.-'D' to show that the rent for the month of April, May, June 1988 sent through aforesaid drafts.
15. As per section 11, 1(d), rent is required to be validly remitted by the last day of the month next following that for which the rent is payable. Thus, the crucial thing is date of remittance of rent and not the date of preparation of drafts. As noticed above, Ext. 'D' does not show when aforesaid drafts were sent and/or remitted. Thus from Ext-'D', it is not clear that the draft have been remitted or not. Admittedly Ext- 'D/1' have no relevance for determining the issue in -6- question because the same relates to rent after filing of suit. So far Ext.- 'H', 'H/1' & 'H/2' are concerned, the same are three envelopes on which there are endorsement of postal peon that the addressee refused to accept the same. But from perusal of the said envelopes, I find that there is no address on them. Thus from Ext.-'H Series', it is not clear that the said envelopes were sent to plaintiffs/respondents or some body else. In this respect it is worth mentioning that D.W. 3 & 4, who are postal peons after looking the envelopes had categorically stated that they could not say that said envelopes were sent on which address. Thus, in the absence of any proof that the said envelopes were sent to plaintiffs/respondents and same contain rents for the month of April, May and June 1988 it cannot be held that rents for the months of April, May and June 1988 were sent to the plaintiffs/respondents which they refused to accept.
16. In this connection, it is worth mentioning that D.W. 8, who is an officer of DCM and who proved Ext.-'D', in his oral evidence had only stated that defendants had sent draft of March, 1988 which the plaintiffs refused to accept. This witness had not stated any where in his evidence that the rent for the month of April, May and June 1988 was also sent through draft which was refused by the plaintiffs/respondents. This fact was also not stated by D.W. 5, who is the Manager of DCM Showroom at Ranchi.
17. Under the said circumstance, even after considering Ext.- 'D', 'D/1' and 'H' Series, the appellants have not been able to prove that the rents for the month of April, May and June 1988 were remitted within statutory time and the same were refused by the plaintiffs. Thus, the findings of the courts below that the rent for the month of April, May and June 1988 have not been remitted within the statutory time fixed under BBC Act and appellants are defaulter, does not require any interference. Thus the first substantial question of law framed hereinabove answered in negative.
18. Second Substantial question of law It is submitted by Sri P.K. Sinha, senior advocate that it is an admitted position that Hindustan Building is a five storied building. He further submits that it has come in evidence that some of the shops are lying vacant in 3 rd , 4th and 5th floor of the said building. Thus if the plaintiffs are actually in need of suit premises for opening an electrical shop they can do so in the aforesaid vacant shops. He further submits that in fact the plaintiffs are not in need of suit premises and they filed the present suit because they lost the case before the Rent Controller for enhancement of rent. Thus, the suit in question cannot be decreed on the ground of personal necessity.
19. On the other hand, Sri P.K. Prasad submits that plaintiffs/respondents want to open an electrical shop both wholesale and retail shop and the suit premises on the ground floor of main road, Ranchi is more suitable for their business. He further submits that the plaintiff offered defendants ( D.W. 5) for shifting his business in the 4th floor but he refused to accept the said offer on the ground that the shop situated at 4th floor is -7- not suitable for his business. Sri P.K. Prasad further submits that the allegation of appellants that present suit filed with malafide intention for enhancing the monthly rent is not correct because the plaintiffs themselves offered defendants to shift their shop on the 4th floor, which the defendants refused. It is submitted that the courts below considered all these aspects and came to the conclusion that the plaintiff is in need of suit premises for opening business.
20. Having heard the submission, I have gone through the impugned judgments. From perusal of judgments of both the courts below, I find that after considering the evidence available on record, the courts below had given finding that the vacant accommodations in the same building were not suitable for the business which the plaintiff's son intends to open. Both the courts below had stated that D.W. 5, who is Manager of Show Room of DCM at Ranchi , has refused to shift his business on the 4th floor, because the said shop is not suitable for retail shop. Accordingly courts below concluded that if the said shop is not suitable for the business of appellant/defendant, then how it can be held that the same are suitable for the business of plaintiffs/respondents. The aforesaid finding of both the courts below find full support from judgment of Hon'ble Supreme Court in Pushkar Singh Vs. Ansuiya reported in 2006 (4) PLJR 54 ( SC). Thus, I find no illegality in the aforesaid findings of the courts below.
21. Sri P.K. Sinha, senior advocate submits that during the pendency of this appeal plaintiffs/respondents had opened an electrical shop in the name of Hind Electrical on the 4th floor of the building, which will manifest from Annexure- 3 to the I.A. No. 1706 of 2011. He submits that the said event is a subsequent event, therefore, same can be looked into. It is submitted that in view of the aforesaid subsequent event , personal necessity of the plaintiffs, if any, has been extinguished. Therefore, on the ground of personal necessity appellants cannot be evicted.
22. From perusal of aforesaid Annexure- 3, I find that one Ajay Maru had given invitation for opening of new establishment, namely, Lighting Studio Hind, of Ramavatar Bhalla and Sri Govind Bhalla in Main Road, Ranchi. There is nothing in this invitation to show that the said establishment was opened by Ramesh Bhalla son of plaintiff/respondent no. 1. It is worth mentioning that in the plaint, it is mentioned that Ramesh Bhalla son of plaintiff/respondent no. 1 wants to open an electrical shop in the said premises and for the said purpose plaintiffs want defendants to vacate suit premises. Since the Lighting Studio Hind is owned by plaintiff nos. 1 and 2 as it appears from Annexure- 3 and not by Ramesh Bhalla son of plaintiff/ respondent no. 1, in my view, the personal necessity as stated in the plaint has not extinguished. Thus, the subsequent event which took place during the pendency of this appeal have no effect on the impugned judgment and decree of the courts below.
23. In view of the discussion made above, second substantial question of law is also answered against the appellants.
-8-24. In view of my findings on aforesaid two substantial questions of law, I find no merit in this appeal, same is accordingly dismissed.
( Prashant Kumar,J.) Jharkhand High Court, Ranchi Dated 24 /06/2011 Sharda/NAFR