Bombay High Court
Vinayak Alias Janardan Todankar vs Murlidhar Ramchandra Kowli And Ors. on 17 November, 1989
Equivalent citations: 1990(1)BOMCR486
JUDGMENT G.H. Guttal, J.
1. The petitioner instituted R.A. Declaratory Suit No. 5293 of 1971 in the Court of Small Causes, Bombay, for a declaration that he is the tenant of the Room No. 3/2, Street No. 18, Cadel Road, Dadar, Bombay. The respondents, as the legal representatives of a Ramchandra Kowli, are the owners of the building. The petitioner's claim is based on section 5(11)(c) of the Bombay Rents, Hotel and Loding House Rates Control Act, 1947, hereinafter referred to as "the Bombay Rent Act". According to him, he was residing with the deceased tenant Tukaram Achrekar as his heir from 1957 to 2nd August, 1966 when the latter died. The trial Judge, by his judgment dated 31-1-1981, decreed the claim. In Appeal No. 190 of 1981, the Appellate Bench of the Court of Small Causes reversed the decree and dismissed the suit. The decree of the Appellate Bench is impugned in this petition. In this judgment, the petitioner is referred to as the plaintiff", the respondents as "the Defendants" and the deceased tenant Tukaram as "Achrekar".
2. The facts necessary for decision of the questions arising in this petition are these.
Achrekar was the admitted tenant of the suit premises. He died in Bombay on 2nd August, 1966. The plaintiff claims to be the son of Achrekar's sister and contends that he was living with Achrekar at the time of his death.
The oral evidence let at the trial consists of the testimony of the plaintiff and three witnesses. Shah (P.W. 1) is a grocer having a shop in the adjoining Room No. 2. Revdankar (P.W. 2), a Rationing Officer, was examined to prove the application for ration card made by the petitioner. Sapre (P.W. 3) is engaged in the business of photography and was examined to prove the signature of the plaintiff on the ration card (Exh. 'A'). The Defendants examined Ramchandra Kowli, the owner and the deceased father of the Defendants. The documentary evidence consists of Ration Card (Exh. 'A'), School Leaving Certificate (Exh. 'F') Correspondence (Exh. 'G'), Order of plaintiff's externment from Bombay (Exh. 'K') Eleztorol Roll (Exh. 6), Letter dated 10-4-1962 (Exh.'J') addressed to the plaintiff by the Life Insurance Corporation of India to prove the plaintiff's residence at the suit premises, Electricity Bills (Exh. 'E') and so on.
3. There was a previous proceeding between the parties to which a reference is necessary as the main point urged in the petition depends upon the effect of those proceedings.
The owner R.D. Kowli filed Ejectment Application bearing No. E/944 of 1966 (Exh. 17) against the plaintiff under section 41 of the Presidency Small Cause Courts Act (for short 'the P.S.C.C. Act') 1882. The plaintiff appeared through an advocate but led no evidence. His advocate advanced arguments. The Court allowed the application and made a decree of eviction against the petitioner under section 41 of the P.S.C.C. Act.
4. The Appellate Bench of the Court of Small Causes whose decree is impugned in this petition, made two findings :
(i) Under section 49 of the P.S.C.C. Act, once an order of eviction under section 41 is made, the respondent to such application is precluded from bringing any suit except a suit to establish his title other than the title "as the Applicant's tenant within the meaning of the Bombay Rent Act". Therefore, the suit based on title under section 5(11)(c) is barred by reason of section 40 of the P.S.C.C. Act.
(ii) There is no evidence to prove that the plaintiff was residing with Achrekar on 2-8-1966 when the latter died and, therefore, he cannot claim tenancy under section 5(11)(c) of the Bombay Rent Act.
5. The principal question is whether the suit is barred by reason of section 49 of the P.S.C.C. Act or under the principles of res judicata. In order to appreciate the arguments, it is necessary to set out relevant provisions of the Act.
The Presidency Small Cause Courts Act, 1882 (Act XV of 1882) has undergone far-reaching changes, as the amendments introduced by various amending Acts would reveal. Chapter VII of the Act, as originally enacted, consisted of section 41 to 49. The caption of this Chapter was and is "Recovery of Possession of Immoveable Property". As is well known, this Chapter is intended to provide a summary remedy for seeking possession of immoveable property where the annual rent does not exceed Rs. 3,000/-.
Section 41, at the time of its enactment in 1882, enabled the applicant to apply to the Court of Small Causes for a summons against the occupant. The summons is to call upon the occupant to show cause why he should not be compelled to deliver up the property. The occupant, as section 41 (Section 41 of the Presidency Small Cause Courts Act, 1882) reveals is :
"Any person who has had possession of any immovable property described therein-
(a) as the tenant of another person, or
(b) by permission of the applicant, or
(c) of some person through whom such person claims".
Sections 42 and 43 provided, respectively the mode of service of summons and making of the order for delivery of possession. Section 49 (Section 49 of the Presidency Small Cause Courts Act, 1882, as it stood after its amendment by the Bombay Act No. 44 of 1948.
49. Recovery of the possession of any immoveable property under this Chapter shall be no bar to the institution of suit in the Bombay City Civil Court or the High Court as the case may be for trying title thereto.) was general in its language. It barred institution of a suit in any Court; but created an exception whereunder "a suit in which relief is claimed on the basis of title" could be filed.
6. The Bombay Rent Act (Act LVII of 1947) which granted certain rights to tenants came into force on 19th August, 1948. The tenants were granted statutory right against eviction as long as they performed the conditions of tenancy. An important amendment was introduced in P.S.C.C. ACT by the P.S.C.C. (Amendment) Act, 1963 (Mah. Act No. XLI of 1963). Despite the amendments, section 41 remained as it was originally enacted in 1882. After section 42 which provided the mode of service of summons, a new section 42-A (Section 42-A (1) if in any application pending in the Small Cause Court immediately before the date of the commencement of the Presidency Small Cause Courts (Maharashtra Amendment) Act, 1963, or made to it on or after such date, the occupant appears at the time appointed and claims that he is a tenant of the applicant within the meaning of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and in consequence whereof he is entitled to the protection of that Act, and if such claim is not admitted by the applicant, then notwithstanding anything contained in that Act, the question shall be decided by the Small Cause Court as a preliminary issue.
(2) An appeal against the decision on this issue shall lie to a bench of two Judges of the Small Cause Court.
(3) Every appeal under sub-section (2) shall be made within thirty days from the date of the decision appealed against;
Provided that, in computing the period of the limitation prescribed by this sub section the provisions contained in sections 4, 5 and 12 of the Indian Act, 1908, shall, so far as may be apply.
(4) No further appeal shall lie against any decision in appeal under sub-section (2)) was introduced. It was realised that even after the applicant secured an order of eviction of the occupants, the occupants resorted to separate suits under the newly acquired protection of the Bombay Rent Act. It was felt necessary to grant finality to certain decisions of the Court made under P.S.C.C. Act so as prevent separate litigation. Section 42-A(1) provides for adjudication of claims where in the application under section 41, the occupant raises a claim that he is "a tenant of the applicant" within the meaning of the Bombay Rent Act. The P.S.C.C. Act by section 42-A created additional jurisdiction in the Small Causes Court to decide the claim of tenancy as a preliminary issue in the application under section 41. Sub-section (2) of section 42-A provides for an appeal against the decision on such preliminary issue to a bench of to Judges of the Court of Small Causes and lays down that there shall be no further appeal.
The P.S.C.C. (Amendment) Act (Maharashtra Act No. LXI of 1963) also substituted the then existing section 49 by a new section. Section 49, as it stood before the Act XLI of 1963, saved the right "to the institution of a suit in the Bombay City Civil Court or the High Court .............for trying title thereto". Section 49 (1. Section 49.
"49. An order made for recovery of possession of any immoveable property on an application under section 41 pending in the small Cause Court immediately before the date of the commencement of the Presidency Small Cause Courts (Maharashtra Amendment) Act, 1963 or made to it on or after such date, shall (whether possession is taken thereunder or not) bar the institution of a suit in any Court, except a suit in which relief is claimed on the basis of title (other than title as the applicant's tenant within the meaning of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947) to such immoveable property."
which was introduced by the Act No. XLI of 1963 was consequential to the finality granted by section 42-A to the finding on the preliminary issue. Section 49 enacts that "an order made for recovery of possession of any immoveable property on an application under section 41" shall bar the institution of a suit in any Court, but it creates a solitary exception to this bar. The exception is that a suit in which "relief is claimed on the basis of title (other than title as the applicant's tenant within the meaning of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947)" shall not be barred. Thus, an applicant against whom an order of eviction under section 41 of the P.S.C.C. Act is made may institute a suit on title but shall not institute a suit claiming title as tenant under the Bombay Rent Act.
7. The suit out of which this petition arises was instituted on 8th November 1971. Therefore, the P.S.C.C. Act, as it stood upon its amendment by the P.S.C.C. (Amendment) Act, 1963 applies to this case.
8. Learned Counsel for the petitioner urged, on the basis of the following arguments, that the suit out of which this petition arises is maintainable.
(i) The provisions of section 41 of the P.S.C.C. Act come into operation only where there exists a contractual relationship between the applicant and the respondent, That is why section 41 employs the words "tenant of the applicant". An application under section 41 is not competent if it is against a statutory tenant or a tenant by operation of law as under section 5(11)(c) of the Bombay Rent Act.
(ii) The existence of the relationship of tenant or licensee being a jurisdictional fact, the Small Causes Court lacks jurisdiction to entertain an application under section 41 unless there is a specific averment that the respondent to the application is a tenant or a licensee. If there is no such averment, the respondent is not called upon to meet the application by raising the claim of tenancy, because, in the absence of such an averment, the application itself is not properly constituted.
(iii) The bar against the institution of suits on title created by section 49 of the P.S.C.C. Act applies only when the order of eviction is made "under" section 41. If the application does not contain an averment that (a) the respondent is a tenant or licensee (b) under a contract with the applicant, the Order of eviction is not an order made by a competent Court. Consequently, is a separate suit to establish tenancy other than contractual tenancy is not barred.
9. The argument that section 41 applies only to contractual relation ship stems from the words "tenants of the applicant". No doubt, the word "of" in the context of a relationship, implied a belonging, connection or possession as in the phrase "Master of the House" (Pocket oxford Dictionary---New Edition). The word "of" is a function word to indicate such relationships as, owner of property or tenant of landlord (Webster's Third New International Dictionary). Therefore, it is right that the Respondent to an application under section 41 must, of necessity, be the tenant "OF" the applicant which means that the tenancy must be related to the property of the applicant. But the fallacy of this submission based on the meaning of the word "OF" is that all tenants "OF" the LANDLORDS. There is no relationship of tenancy which is not related to the landlord or lessor. Certain legal relationships by their very nature are so connected with another that they always go together in "twos". Just as mortgagee is "OF" the mortgagor, licensee is "OF" the licensor, so is a tenant "OF" the landlord.
10. In endeavouring to understand whether the words "tenant of the applicant" exclude statutory tenants or tenants by operation of law, the first thing to be considered is the actual language used by the statute. Secondly, the statute should be seen as a whole and not its sections in isolation. Thirdly, the connection of the clause "tenant of the applicant with other clauses in the same statute should be clearly perceived (Craies on Statute Law Seventh Edition, Chapter 5, Pages 92-93). The words "tenant of the applicant" occur in section 41 of Chapter VII of the P.S.C.C. Act which creates the right to apply for eviction and also the forum. Section 49 occurs in the same Chapter section 49 bars suits to establish title as tenant. But it goes further and enlarges the prohibition against institution of such suits. Therefore, it says that suits to establish "title as applicant's tenant within the meaning of the Bombay Rents, Hotel and Lodging House Rate Control Act, are barred. The legislature which created the statutory tenancy and the tenancy under section 5(11)(c) of the Bombay Rent Act, was aware that section 41 of the P.S.C.C. Act applied to "tenant of the applicant". Yet it introduced the bar against institution of suits to establish tenancy under the Bombay Rent Act. Section 41 which uses the words "tenant of the applicant" cannot be red in isolation but has to be read as a part of the scheme of chapter VII of the P. S. C. C. Act. The scheme is to provide a speedy summary remedy for possession of certain kinds of immovable property and make the decisions on the questions decided by the Court final.
11. The legislative intent to grant finality to the order made under Chapter VII and forbid the institution of suits to prove tenancy under the Bombay Rent Act is evident from the statement of objects and reasons. The abuse of the repealed section 47, the tendency of unsuccessful respondents in proceeding under section 41 to resort to proceedings under the Bombay Rent Act and the legislative urge to "avoid multifarious proceedings for the same matter and make the speedy remedy provided by section 41 effective" led to the substitution of section 49 by the P.S.C.C. (Amendment) Act, 1963. (STATEMENT OF OBJECTS AND REASONS.
"X X X X XX XX It is also noticed that when proceedings are taken under Chapter VII of the Small Cause Courts Act some defendants question the jurisdiction of the Court and claim to be tried under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom. LVII of 1947) with the result that proceedings are protracted. To avoid multifarious proceedings for the same matter and to make the speedy remedy provided by section 41 effective, the High Court has recommended that sections 45, 46 and 47 should be deleted, and that the Small Cause Court be empowered to decide as a preliminary issue the question whether an occupant is entitled to the protection of the Rent Control Act or not, when such question is raised. It is proposed to provide an appeal to a bench of two Judges of the Small Cause Court against the decision on the preliminary issue and there is to be no further appeal. X X X XXX XXX section 49 is being suitably amended to clarify that recovery of possession shall be a bar to a suit in any Court except on the basis of title to the immoveable property, other than title as tenant.")
12. In section 42-A, even in 1963, the legislature continued to use the words "tenant of the applicant" which were employed when section 41 was enacted in 1882. It should be presumed that the legislature was aware of the meaning of the words "tenant of the applicant" when it made the P.S.C.C. (Amendment) Act 1963. It was aware of the status and relationship of statutory tenancy and tenancy by operation of law. It was aware, too, of the true meaning of "tenant of the applicant". The word "tenant" is used in its generic sense to comprehend within its compass all species of tenancy. The language of section 49 clearly stipulates that suits to establish title "as the applicant's tenant within the meaning of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947" shall not be instituted. If the legislature intended that the "tenant of the applicant" did not include the statutorily protected possession or tenancy by operation of law as under section 5(11)(c), section 49 would have said so. This construction is if consistent with section 42-A which enables the occupant to raise a claim that he is a tenant of the applicant within the meaning of the Bombay Rent Act. The legislative intent clearly was that no claim of tenancy shall be regitated in a suit. The unequivocal, absolute words of section 49 which encompass all kinds of tenancies, clearly manifest the legislative intent to include all tenants within the phrase. This is clear from the fact that suits to establish "title as applicant's tenant within the meaning of the Bombay Rents, Hotel and Lodging House Rates Control Act" are barred. The Bombay Rent Act created the relationship known as statutory tenancy and the tenancy under section 5(11)(c). The introduction of the words "within the meaning of the Bombay Rents, Hotel and Lodging House Rates Control Act" was a predetermined deliberate resolve of the legislature to apply the bar against institution of suits to all the tenants including those claiming to be tenants under the Bombay Rent Act.
13. The next question is whether the relationship of landlord-tenant or licensor-licensee and the termination of such relationship are facts essential to the proper constitution of the application under section 41 of the P.S.C.C. Act. The owner, landlord or licensor referred to as the applicant in section 41 may apply for a summons calling upon the occupation to show cause why the latter should not be compelled to deliver up the property. The application under section 41 has to be against the occupant. Section 41 envisages the application against three categories of occupants :---
(i) a person as a tenant or
(ii) a person by permission of another person, or
(iii) a person in occupation by permission of some person through whom, such other person claims.
Thus, the respondent to an application under section 41 must be tenant, a licensee or a person in occupation through another person who is a licensee/tenant. Section 41 has not been happily worded. The last clause of the first limb of section 41 describes the last category of person in occupation as "of some person through whom such other person claims". These words when read with the preceding clause indicate that they refer to the person in occupation "by permission..................of some person through whom such other person (licensee/tenant) claims". Therefore, the category (iii) includes a person claiming through a tenant or licensees. This has been so analysed by a Single Judge of this Court in the case of Hassan Abdul v. Mrs. Nandgauri Bhogilal, 69 B.L.R. 865. (Patel, J., at page 866 categorised the Respondents to an application under section 41 is as follows;
"Section 41 enables the owner of the premises to file an application for eviction of a person
(i) When he has had possession of immoveable property as a tenant, or
(ii) by permission of another person, OR
(iii) of some person through whom such other person claims.") It is clear, therefore, that the application under section 41 has to be for eviction of one or the other of the three kinds of occupants.
The second prerequisite of an application under section 41 is that the tenancy was terminated or license revoked.
14. The petitioner's case is that in the absence of averments in the Application No. E/944 of 1966 made under section 41 by the Respondent's predecessor-in-title that the petitioner was a licensee/tenant and that the tenancy/license was terminated, the application was not property constituted. It is urged that consequently the decree/order dated 9th September, 1971 is without jurisdiction and therefore, void. A void order does not exist and, therefore, the argument proceeds, such order cannot bar a suit to establish tenancy. In order to appreciate this submission, certain principles in regard to jurisdiction need to be understood.
15. By "jurisdiction" is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way of its decision. (Halsbury's Laws of England Fourth Edition. Volume 10). The statute which creates the Court, may limit, extend or restrict this authority. The limitation of the authority of a Court or Tribunal takes various forms. For instance, the jurisdiction of a Court may be limited as to the kind and nature of the actions on which it may take cognisance, or it may be limited by the territory in which the cause arises, or it may partake of both these characteristics. It follows that if the jurisdiction of the Court depends upon the existence of a particular states of facts, the Court must inquire into the existence of the facts which grant it the jurisdiction to decide the matter. The existence of these facts, known as jurisdictional facts, is fundamental to the proper constitution of a suit, application or proceeding before judicial Tribunal. The jurisdictional facts are the foundation on which the authority to take cognisance of or try a proceeding rests. If the Court takes upon itself to exercise jurisdiction without such facts, it exercises authority which it does not posses. Consequently, its decision amounts to nothing.
16. The Law which creates a Court also lays down that if a certain state of facts exists and its existence is shown to such Court before it proceeds to take steps towards decision making, the Court shall have jurisdiction. When a law lays down the existence of such state of facts as a prerequisite, it follows that without such facts, the Court lacks jurisdiction. The P.S.C.C. Act is such a law. Section 41 lays down the two facts set out above as necessary prerequisites before the Court takes upon itself, the function of deciding the matter. The legislature may limit the authority of a Court created it by defining the "nature of the subject matter" or the "the parties". (Halbury's Laws of England, Fourth Edition, Vol. 1.
A tribunal lacks jurisdiction if it is improperly constituted, or if the proceedings have been improperly instituted, or if authority to decide has been delegated to it unlawfully, or if it is without competence to deal with a matter by reason of the parties, the area in which the issue arose, the nature of the subject matter, the value of that subject matter, or the non-existence of any other prerequisite of a valid adjudication.
The nature of the subject matter in this case is the legal relationship of landlord/tenant, licensor/licensee and the termination of the relationship. These are essential prerequisites for a valid exercise of jurisdiction under section 41 of the P.S.C.C. Act.
It may be asked : what makes these facts essential prerequisites for exercise of the jurisdiction ? They are essential because without the existence of an occupant whose tenancy or license has been terminated, section 41 makes no sense. Without the nature of the subject matter, viz. immoveable property occupied by tenant/licensee whose right to occupy has come to an end, the Court has nothing to adjudicate on. Without these facts the Court wields its authority in vacuum against none who is subject to its authority. True, an application may be made against an occupant who claims through a tenant whose tenancy is determined or license revoked. But the tenancy or license must have existed and been terminated. If there were no tenancy or license, there is no question of claiming possession against occupants. These are the only relationships and parties named in section 41. All other suits for recovery of immoveable property and all other relationships are outside the jurisdiction of the Presidency Small Causes Court. (Section 19 which set out suits in which the Small Cause Court has no jurisdiction). In the absence of these facts section 41 is reduced to nothingness. Therefore, these facts are essential prerequisites for the exercise of jurisdiction under section 41 of the P.S.C.C. Act.
17. It is now necessary to enquire as to whether the two jurisdictional facts existed when the Court of Small Causes made the order of eviction in Application No. E/944 of 1966.
Admittedly Achrekar was the tenant. He died on 2nd August, 1966. The application contained these averments :
(i) Achrekar, the tenant, died without leaving heirs or legal representatives.
(ii) the Respondent "claims to have occupied the suit premises through the deceased".
(iii) the Respondents refused to deliver possession of the property.
The application makes no reference to the capacity in which the respondent, the petitioner herein, was in occupation. The respondent to the application was not alleged to be a tenant or a licensee. Therefore, he did not fall in categories of occupants referred to at (i) and (ii) in paragraph 13 of this judgment or of the judgment in the case of Hassan Abdul v. Mrs. Nandgauri Bhogilal, 69 B.L.R. 865. Does the respondent to the Application No. E/944 of 1966 fall in category (iii) ? This class of occupants are persons who claim to be in occupation through one or the other set out in (i) and (ii) and need not have a privity of contract with the applicant. In Hassan Abdul v. Mrs. Nandgauri Bhogilal, 69 B.L.R. 865, it has been held that "even if the person is in occupation of the premises through a tenant or licensee, an application would lie against him under section 41 of the Act. Therefore, from the averments in the application No. E/944 of 1966, it is clear that the applicant averred that the respondent to the application who is the petitioner herein claimed through the tenant. His second averment was that the deceased tenant left no heirs or legal representatives. The statement that the deceased tenant Achrekar died without leving heirs implies an assertion that the tenancy had come to an end. then, there is a clear averment that the petitioner herein claimed to have occupied through Achrekar. In my opinion, the two jurisdictional facts were present before the Court when it made the Order under section 41 of the P.S.C.C. Act. Therefore, the application was properly constituted. The decree/order of eviction in Application No. E/944 of 1966 was made "under" section 41 of the P.S.C.C. Act.
18. I sum up my conclusions as under :
Section 41 of the P.S.C.C. Act applies to the relationship of tenant and licensee "of the applicant". But since all tenants are "of" the landlords and all licensees are "of" the licensors, the use of the word "of" by itself does not mean that section 41 applies only to contractual relationships. The statutory tenancy, which is but statutory irremovability of the tenant or tenancy by operation of law as under section 5(11)(c), is included in the meaning of the word "tenant" used in section 41 of the P.S.C.C. Act. This is clear from the fact that section 42-A enables the occupant to raise the claim of tenancy not only contractual but all claims of tenancy arising out of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Such claim is required to be raised in the application under section 41 which employs the words "tenant of the applicant". Therefore, it cannot be said that the legislature intended that section 41 excludes tenancy by operation of law as under section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act or the statutory tenancy which is a creature of this Act. Secondly, section 42-A, as also section 49 of the P.S.C.C. Act expressly use the word "tenant" to include tenancy within the meaning of the Bombay Rents, Hotel and Lodging House Rates Control Act. There is thus no doubt that the "tenant of the applicant" means tenant of the applicant either by contract or tenant within the meaning of the Bombay Rents, Hotel and Lodging House Rates Control Act.
Section 41 stipulates that the respondent to the applications must be a tenant, licensee or a person in occupation through licensee or a tenant and that such license or tenancy must have been determined. These facts limit the authority of Court under section 41 of the P. S. C. C. Act. If the Court does not have before it these two jurisdictional facts, it lacks jurisdiction to entertain the application under section 41 of the P.S.C.C. Act. A decision arrived at without such facts is without jurisdiction and is, therefore, void.
19. However, in the circumstances of this case, the petitioner is a person who claims through the deceased tenant Achrekar and since the tenancy of Achrekar had been impliedly terminated, the judgment of the Court of Small Causes in application No. E/944 of 1966 is valid.
20. In the view which I have taken of the interpretation of sections 41, 42-A and 49, it is unnecessary to decide whether the suit out of which this petition arise is barred by principles of res judicata.
21. Lastly, the merits of the case. It is urged that the finding of the appellate bench of the Court of Small Causes that the petitione was not living with the deceased tenant on the date of the latter's death, is perverse in as much as it ignores material evidence and takes a distorted view of the facts. The limits of the High Court's authority to interfere with what appears as a finding of fact has been spelt out in a number of judicial decisions. This Court has no authority to reappreciate the evidence as it did in Babhutmal Raichand Oswal v. Laxmibai R. Tarte, Mrs. Labhkuwar Bhagwani Shah v. Janardhan Mahade Kalan, . Smt. M.M. Amonkar v. Dr. S.A. Johari, 1984(2) Bom.C.R. 441 : A.I.R. 1934 Supreme Court 931 and Mohd Yunus v. Mohd Mustaquim, . But the omission to consider the material evidence and reliance upon irrelevant considerations by subordinate Courts justifies interference with the finding of fact. Smt. Ram Piari and others v. Rallia Ram and others, A.I.R. 1982 Supreme Court 1314. Similarly, absence of evidence to justify such a conclusion or the finding is such that no reasonable person could possibly have come to such a conclusion, grave miscarriage of justice, mis-direction in law, and a view of law taken in the teeth of preponderance of evidence, are circumstances which justify interference even with a finding of fact. Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, . In the light of the principles laid down in the above quoted decisions, I will proceed to consider whether the finding is without evidence, whether it is so unreasonable as to justify a reversal and whether there has been a miscarriage of justice.
22. The Ration Card (Exh. A) is the most important document by which the petitioner seeks to prove his residence with Achrekar at the time of the latter's death which occurred on 2-8-1966. According to him, he had been residing with Achrekar since 1951. The date of issue recorded on the Ration Card reads 29-7-1966, a few days before Achrekar's death. There is thus no evidence that the petitioner was residing with the deceased since 1951. The Appellate Bench rightly viewed this Ration Card with suspicion and scrutinised it closely. The Ration Card undoubtedly does not support the petitioner's version that he lived with Achrekar since 1951. The Ration Card is supposed to have been issued in the name of Achrekar as the head of the family. Curiously, the Ration Card bears no signature of Achrekar which should have been there against the words "head of the household". The petitioner's version that Achrekar held this Ration Card is thus suspect. On the other hand, the Ration Card records the petitioner himself as the head of the house-hold which is not his case at all; for, he could become head of the household only upon the death of Achrekar. The Ration Card bears the petitioner's signature where there ought to have been the signature of Achrekar. The colour of the ink used by the petitioner for his signature is different from the black ink used for writing Achrekar's name. If Achrekar's name was deleted after an enquiry, there ought to have been initials of the officer of the Rationing Department who deleted the name. Deletion is, thus, not authenticated. These circumstances have been evaluated by the Appellate Bench of the Court of Small Causes and on the basis of such evaluation, they have rightly come to the conclusion that the Ration Card is not a reliable document.
23. Then, there is the application for renewal of the Ration Card made by the petitioner. This too was rightly rejected. There is no date on this application. There is no way of knowing when the petitioner applied for renewal of the Ration Card.
24. An important argument advanced by Counsel for the petitioner was that the Appellate Bench was in error in assuming that all the documents produced by the petitioner were post 1966 documents and that there was no document relevant for the purpose of proving petitioner's occupation prior to 1966. For this purpose, my attention was drawn to the letter dated 10-4-1962 (Exh. 'J') written by the Life Insurance Corporation of India to the petitioner. The petitioner relies upon the address mentioned in this letter. Now, the Appellate Bench has, not doubt, not referred to this letter. But the letter can be rejected straight way as devoid of any evidentiary value. The address of the petitioner is in pencil. The rest of the writing except the printed words are in pencil. There is a rubber stamp of the signature of the writer of the letter. The envelope in which this letter was received has not been produced. It is not possible to rely upon the printed letter form which can be produced and filled in any anyone. It would have been a different matter, had the envelope in which the letter was received, was produced. Therefore, the writing in pencil and the absence of envelope do not inspire confidence in this document also.
25. The Appellate Bench took into account the past conduct of the petitioner in the conduct of the Ejectment Application No. 944/E of the 1966. The conduct was his omission to claim that he was residing with the deceased on the date of his death. This conduct is relevant for the purpose of evaluating the petitioner's version. The argument of learned Counsel for the petitioner that this conduct is not relevant and ought not to have taken into account is unsound. The past conduct of a party is relevant. It was said that the petitioner was absent at the trial and that, therefore, not much importance should be attached to this conduct. The petitioner, though personally absent, appeared through advocate, defended the application and contested the case. In such a contested litigation the absence of a whisper that the petitioner had been residing with the deceased much prior to this death was a relevant factor. How much importance should be attached to this factor is a matter of appreciation of evidence.
26 The Appellate Bench also considered the absence of any evidence of the petitioner's residence from 1951. No doubt, the petitioner need not prove his occupation from 1951; it is enough if he proves his residence with the deceased on the date of his death. But in evaluating the probability of the petitioner's case, his tendency to make a false claim of occupation since 1951 is a relevant factor.
27. Having gone through the judgement of the Appellate Bench of the Court of Small Causes and the evidence, I am satisfied that the Appellate Bench has appreciated the evidence on the basis of sound principles relating to the evaluation of evidence. The scrutiny of the Ration Card which is the dominant piece of evidence on which the petitioner relies, the oral evidence and all circumstances have been viewed by the learned Judge of the Appellate Bench in the correct perspective. No irrelevant consideration has gone into the making of that judgement. I am, therefore, of the opinion that the finding of fact is sound. I see no reason why this Court should interfere with such a finding.
28. For all these reasons, the petition is dismissed. Rule is discharged with costs.
On the petitioner's filing a written undertaking within one week from today that he will vacate the premises in suit on or before 31st May 1990, the ad-interim relief in terms of prayer (e) granted on 26-2-1987 shall continue to be effective until 31st May, 1990.