Andhra HC (Pre-Telangana)
K. Chengalraya Chetty (Died) And Others vs Smt.Gomatheeswari on 8 August, 2014
Equivalent citations: AIRONLINE 2014 HYD 37, (2014) 6 ANDHLD 236 (2015) 1 ICC 113, (2015) 1 ICC 113
Author: Ramesh Ranganathan
Bench: Ramesh Ranganathan
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN CIVIL REVISION PETITION NO.735 OF 2014 08-08-2014 K. Chengalraya Chetty (died) and others..Petitioners Smt.Gomatheeswari.. Respondent Counsel for the petitioners: Smt. Sundari R Pisupati Counsel for respondent:Sri T.C. Krishnan <GIST: >HEAD NOTE: ?Citations: 1) (2014) 2 SCC 788 2) 2010 (1) ALD 366 3) 1995(2) ALT 61 4) 2014 (1) ALT 51 (SC) 5) (2012) 1 SCC 656) 6) 1994(3) ALT 461 7) (1995) 6 SCC 580 8) (1990) 4 SCC 286 9) (1987) 2 SCC 555 10) AIR 1966 SC 735 11) (2005) 5 SCC 784 12) AIR 1960 SC 100 13) (2013) 12 SCC 17 14) (2012) 8 SCC 516 15) (2009) 2 SCC 75 16) (1979) 4 SCC 790 17) (2000) 6 SCC 394 18) (2006) 5 SCC 545 19) AIR 1991 SC 91 20) 2007(4) ALT 472 21) (2003) 4 SCC 161 22) (2003) 10 SCC 653 23) AIR 1930 P.C. 57 24) AIR 1966 SC 1861 25) 1995 Supp (4) SCC 422 26) AIR 1965 SC 1008 27) AIR 1963 SC 1526 28) (1975) 3 SCC 698 29) (1979) 2 SCC 601 30) (2012) 8 SCC 148 31) (2008) 3 SCC 120 32) (2001) 7 SCC 503 33) (1978) 2 SCC 493 34) (2004) 10 SCC 779 35) AIR 1957 SC 912 36) AIR 1969 SC 101 37) (1987) 1 SCC 227 38) AIR 1980 SC 446 39) (2006) 9 SCC 772 40) (2011) 7 SCC 589 THE HONBLE SRI JUSTICE RAMESH RANGANATHAN CIVIL REVISION PETITION NO.735 OF 2014 ORDER:
The respondent herein, a hapless woman deserted by her husband and whose sons are eking out their livelihood pushing carts on the railway platform, has been fighting a lonely and relentless battle, for the past more than twelve years, to regain possession of a small shop in Chittoor Bus Stand from the petitioners herein who have invoked the jurisdiction of this Court, under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, (hereinafter called the Act), against the order of the Principal Senior Civil Judge, Chittoor in R.C.A.No.2 of 2006 dated 02.12.2013 confirming the order passed by the Principal Junior Civil Judge-cum-Rent Controller, Chittoor in R.C.C.No.8 of 2002 dated 11.09.2006.
The deceased first petitioner (father of petitioners 2 to 5) is the sole respondent in R.C.C.No.8 of 2002. The sole respondent herein is the petitioner in R.C.C.No.8 of 2002 which was filed under Section 10 of the Act seeking eviction of the deceased first petitioner from the petition schedule shop along with other incidental reliefs. Parties shall hereinafter be referred to as they are arrayed in R.C.C.No.8 of 2002. R.C.C.No.8 of 2002 was allowed on 11.09.2006 and the respondent was directed to vacate and deliver vacant possession of the petition schedule shop within two months from the date of the order. The Rent Controller held that, if he failed to vacate and deliver possession within two months from the date of the order, it was open to the petitioner to eject him under due process of law. After R.C.C.No.8 of 2002 was allowed by order dated 11.09.2006, the first petitioner herein (respondent in R.C.C.No.8 of 2002) died and his children preferred R.C.A.No.2 of 2006 before the Principal Senior Civil Judge, Chittoor. During the pendency of R.C.A.No.2 of 2006, petitioners 2 to 5 herein filed I.A.No.204 of 2009 requesting the Court below to receive the petition with attached documents. The Appellate Court, by its order in R.C.A.No.2 of 2006 dated 02.12.2013, dismissed the appeal confirming the order of the Rent Controller in R.C.C.No.8 of 2002 dated 11.09.2006. The appellants were granted three months time to vacate the schedule shop. Consequent on R.C.A.No.2 of 2006 being dismissed, by order dated 02.12.2013, I.A.No.204 of 2009 was also dismissed on the same day.
I. DOES A LANDLORD AND TENANT RELATIONSHIP EXIST BETWEEN THE PETITIONER IN R.C.C.No.8 OF 2002 AND THE RESPONDENT THEREIN?
Smt. Sundari R. Pisupati, Learned Counsel for the revision petitioners, would submit that the sole respondent in this C.R.P. did not adduce any evidence to show that she was the only legal heir of the original landlord or that the first petitioner herein was her tenant or that he had paid her rent; mere proof of title is not sufficient; a landlord and tenant relationship must be established for invoking the jurisdiction of the Rent Controller under the Act; it is only if a landlord and tenant relationship is established would a petition under Section 10 of the Act lie to evict the tenant from the property of the landlord; no issue was framed by the Trial Court whether a landlord and tenant relationship existed; the sole respondent in this C.R.P. failed to establish, before the Courts below, that she had put the first petitioner herein in possession; no evidence was adduced regarding collection of rent; no lease agreement was produced to show that there existed a landlord and tenant relationship; and no evidence was let in by her to show that she was the legal heir of the shop owner or that rent was paid to her. Learned Counsel would rely on Tribhuvanshankar v. Amrutlal ; Avulapalle Mallikarjuna v. N.T. Chengalarayappa ; K.P. Janakiram v. K. Suguna Bai ; Sebastiao Luis Fernandes (dead) through LRs v. K.V.P. Shastri (dead) through LRs. .
On the other hand Sri T.C.Krishnan, Learned Counsel for the respondent herein, would submit that the first petitioner in this C.R.P had admitted before the Rent Controller that he was a tenant of the respondents father for a period of three years; except for a bare averment in the counter, that he had purchased the property from the respondents father, no evidence was adduced by him to show that he had purchased the property; while the first petitioner claimed to have purchased the shop by paying consideration of Rs.40,000/- on 10.12.1984 and to have obtained an unregistered sale deed, no suit for specific performance, based on the unregistered sale deed dated 10.12.1984, was filed; the first petitioner admitted before the Rent Controller that the father of the respondent was the owner of the subject shop; as the first petitioner admitted having taken the shop on lease from the respondents father, it is not in dispute that he was the tenant of the respondents father; the respondent had produced a copy of the Will to show that she was her fathers sole legal heir; it is evident, therefore, that she became the landlord of the property of which the first petitioner was the tenant; both the Courts below held that there existed a landlord and tenant relationship between the respondent and the first petitioner herein; the respondents children are eking out their livelihood pushing carts on the railway platform; and, as both the Courts below have concurrently held against the petitioners herein, this Court should refrain from interference. Learned Counsel would rely on Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana ; and T.S. Prakash v. Xavier Emmanuel .
Where a plaintiff institutes a suit for eviction of his tenant, based on the relationship of a landlord and tenant, the scope of the suit is limited. The question of title cannot be gone into, as the suit of the plaintiff would be dismissed even if he succeeds in proving his title but fails to establish the privity of contract of tenancy. In a suit for eviction, based on such a relationship, the Court has only to decide whether the defendant is the tenant of the plaintiff or not though the question of title, if disputed, may incidentally be gone into in connection with the primary question regarding the relationship between the litigating parties. In a suit for eviction, between the landlord and the tenant, the Court will take only a prima facie decision on the collateral issue as to whether the applicant was the landlord. If the Court finds existence of relationship of landlord and tenant between the parties it will have to pass a decree in accordance with law. All that the Court has to do is to satisfy itself that the person seeking eviction is a landlord who has a prima facie right to receive the rent of the property in question. In order to decide whether denial of the landlord's title by the tenant is bona fide, the Court may have to go into the tenant's contention on the issue, but the Court is not to decide the question of title finally as the Court has to see whether the tenant's denial of title of the landlord is bona fide in the circumstances of the case. (Dr. Ranbir Singh v. Asharfi Lal ; Tribhuvanshankar1; LIC v. India Automobiles & Co. ).
The pleadings in R.C.C.No.8 of 2002 must be construed bearing in mind that the petitioner is not educated, she was deserted by her husband, and her sons are making two ends met pushing carts in the railway station. Pleadings should receive a liberal construction. No pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Some times, pleadings are expressed in words which may not expressly make out a case in accordance with a strict interpretation of the law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings. Instead, the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. If, inspite of deficiency in the pleadings, parties knew the case, and they proceeded to trial on those issues by producing evidence, no interference is called for. (Ram Sarup Gupta v. Bishun Narain Inter College ).
A microscopic dissection and a minute analysis of the pleadings to ascertain whether the respondent was the petitioners tenant is not warranted as, in his cross-examination as RW.1, the respondent admitted that he was granted lease for a period of three years, on a monthly rent of Rs.650/-, by the petitioners father; the petitioners father had constructed the shop and had let out the same to him for beedies and cigarette business; there were glass and wooden almyrahs, along with plywood roofing, in the premises; he had agreed to re-deliver the shop to the petitioners father in the same condition after expiry of the three year lease period; the petitioners father had obtained electricity connection for the scheduled premises in his name, and the same was being continued in his name even though he died seven or eight years ago; the schedule premises is useful for business; the petitioner was deserted by her husband for the last ten years; and the petitioners sons were carrying on business on push carts on railway platforms.
It is clear, from the petition filed in R.C.C. No.8 of 2002, that the petitioner claimed to be the landlord of the subject building, and that the respondent was her tenant. Even if a plea is not specifically made and yet is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. Where substantial matters are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical. What the court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? (Bhagwati Prasad v. Chandramaul ; Ram Sarup Gupta9). In her evidence as P.W-1 the petitioner stated that she was the absolute owner of the suit schedule property; the said property originally belonged to her father; she was the only daughter and the sole legal heir of her father who died on 02.08.1994; she was deserted by her husband; she was paying cist to the Government, copies of which were filed as Ex.A-1; the petition schedule property stood in her name as per Ex.A-2; she had leased out the petition schedule premises to the respondent on a monthly rent of Rs.650/- on 05.02.1998; originally the respondent was a tenant under her father for some time; he later vacated the premises; she carried on business in the petition schedule premises; she then leased out the same to the respondent who vacated the premises again during 1996; on the request of the respondent, and due to unavoidable reasons, she had again leased out the property to the respondent on a monthly rent of Rs.650/-; she has three sons and a daughter; and her sons were carrying on business in a pushcart. In cross-examination, the petitioner admitted that, at the time of letting out the premises to the respondent, no document was executed. She stated that, since 1986, she and her husband were not on cordial terms. She denied the suggestions that her father sold the petition schedule property in favour of the respondent in the year 1976 and, since then, neither she nor the father had any right over the petition schedule premises or that there was no relationship of landlord and tenant between her and the respondent.
It was not even the case of the respondent before the Rent Controller that there were any other legal heirs to the original landlord other than the petitioner. Having admitted tenancy, albeit of the petitioners father, the respondent claimed to have later purchased the subject shop from the petitioners father on payment of consideration of Rs.40,000/-. In his chief-examination the respondent stated that, originally, the petition schedule premises was allotted to the petitioners father by the Chittoor Municipality, and he was carrying on business thereat; thereafter the petitioners father had delivered possession of the shop premises on 10.12.1984 receiving consideration of Rs.40,000/- from him; since then he had been continuously carrying on business, in the petition schedule premises, as the absolute owner by paying necessary taxes; after receiving the total consideration of Rs.40,000/-, the petitioners father had executed a document in his favour; he had produced the original of the said document before the Mandal Revenue Officer, Chittoor for getting a patta in his favour, and hence had filed a xerox copy of the same; since the date of purchase of the petition schedule premises by him from the petitioners father, neither the petitioner nor her father were owners of the schedule premises; the petitioner had not inducted him as a tenant; and there was no relationship of landlord and tenant between him and the petitioner. In cross-examination, the respondent admitted that he did not mention, about the terms and conditions of the lease, in his counter; he did not also mention the same in his chief-affidavit; he did not obtain a registered sale deed, from the petitioners father, for the schedule property; and he did not produce any document in Court as proof of sale of the schedule premises in his favour by the father of the petitioner.
No evidence was adduced by the respondent before the Rent Controller regarding the mode and manner of payment of consideration of Rs.40,000/- nor of any acknowledgement by the petitioner or her father of receipt thereof. On the respondents admission that the petitioners father was the owner of the shop, and he had earlier taken the said shop on lease from him, the onus shifted to the respondent to establish that he had purchased the shop from the petitioners father for valid consideration. The effect of an admission is that it shifts the onus on to the person admitting the fact on the principle that what a party himself admits to be true may reasonably be presumed to be so, and until the presumption is rebutted, the fact admitted must be taken to be established. An admission is the best evidence that an opposing party can rely upon and, though not conclusive, is decisive of the matter unless successfully withdrawn or proved erroneous. (United India Insurance Co. Ltd. v. Samir Chandra Chaudhary ; Phipson in his Law of Evidence (1963 Edn., para 678; Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi ). As the respondent failed to discharge this onus, both the Courts below were justified in directing eviction of the respondent from the shop belonging to the petitioner.
In RCC No.8 of 2002, the Rent Controller framed certain points for consideration including 1). Whether the petitioner succeeded to the schedule property from her father as his sole legal heir? 2) whether the petitioner was entitled to evict the respondent from the schedule property of the landlord; and 3) whether the respondent is the owner of the schedule property as claimed by him? In his order, in R.C.C. No.8 of 2002 dated 11.09.2006, the Rent Controller held that the petitioners father had occupied the petition schedule shop thirty years ago and had constructed a thatched shop thereon in the old bus stand area of Chittoor; he was carrying on business thereat; a door number was allotted to the petition schedule shop and was incorporated in the municipal records in the year 1981-82; the petitioners father had let out the shop to the respondent on a monthly rent of Rs.650/-; the petitioners father died on 02.08.1994; the respondent continued as a tenant in the schedule shop after the death of the petitioners father; the petitioner was deserted by her husband for the last ten years, and her three sons were carrying on business on push carts; the respondent had set up ownership of the schedule property, taking advantage of the death of the petitioners father, in order to knock away the schedule property; he had taken advantage of the weak position of the petitioner; though he received Ex.A-2 legal notice, the respondent had failed to pay arrears of rent; he had set up ownership to the schedule premises without producing any documentary proof; he had admitted that he did not obtain any registered sale deed from the petitioners father for the schedule shop; the electricity service connection for the schedule shop was in the name of the petitioners father; the petitioner had not only proved that the respondent had committed default, but had also proved that the petition schedule property was required for her personal occupation so as to enable her sons to set up business; the respondent had failed to prove that he had paid rents regularly; the petitioner had succeeded to the schedule property as the sole legal heir of her father; and she was entitled to evict the respondent from the schedule premises.
In its order, in R.C.A. No.2 of 2006 dated 02.12.2013, the appellate Court noted four points as arising for consideration in the appeal including 1) whether there was any landlord and tenant relationship between the petitioner and the respondent? and 2) whether denial of the landlord and tenant relationship by the respondent was bonafide? The Appellate Court held that there was no dispute with regard to the identity of, and the present occupation of the respondent over, the schedule property; and the only dispute, as per the respondent, was that he had purchased the schedule property from the petitioners father while he was his tenant. After noting the admission of the respondent in cross- examination, the Appellate Court observed that it was evident that the petitioners father was the actual owner of the scheduled property; he had leased out the property on a monthly rent of Rs.650/- to the respondent; if any valid sale deed was executed by the petitioners father in his favour, it was for the respondent to have marked it as an exhibit; while R.W-1, in his chief- examination, had stated that he had filed a xerox copy of the document in Court, there was no explanation as to why he could not obtain any registered document from the petitioners father; the respondents contention was not valid in view of Section 2(6) read with Section 17(b) of the Registration Act, 1908; and, as the respondent had admitted his tenancy under the father of the petitioner, there was no validity in his claim to have purchased the property.
Immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. (Suraj Lamp and Industries Pvt. Ltd.5). The respondent relied on a photostat copy of an unregistered sale deed dated 10.12.1984 in support of his claim to have purchased the subject shop from the petitioners father. As no reliance can be placed on an unregistered sale deed, and in the absence of any evidence adduced to establish payment of consideration of Rs.40,000/- to the petitioners father, the Courts below were justified in holding that the respondent was unable to show that he was the owner of the subject property. The respondents admission that the petitioners father was the owner coupled with Ex.A-2 show that the petitioner inherited the subject shop from her father. The Evidence Act places admission in the province of relevance, presumably on the ground that they being declarations against the interest of the person making them, they are in all probability true. Just like any other piece of evidence, admissions can be admitted in evidence for drawing an inference of truth. (State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari ; Law of Evidence, by M. Monir, 15th Edn.) Admission of a party in the proceedings, either in the pleadings or oral, is the best evidence and the same does not need any further corroboration. (Ahmedsaheb v. Sayed Ismail ). If the facts are admitted, it is idle to contend that the party, on whom the burden of proof lay, would still be liable to produce direct evidence to establish the fact. (National Insurance Co. Ltd. v. Rattani ). Admission is the best piece of evidence against the persons making admission. While evidentiary admissions are not conclusive proof of the facts admitted, and may be explained or shown to be wrong, they do raise an estoppel and shift the burden of proof placing it on the person making the admission or his representative-in-interest. Unless shown or explained to be wrong, they are efficacious proof of the facts admitted. (Samir Chandra Chaudhary11; Avadh Kishore Das v. Ram Gopal ). As the respondent admitted that he was earlier the tenant of the petitioners father, and as he failed to establish that he had purchased the subject property, it is evident that there existed a landlord tenant relationship between the petitioner and the respondent as the petitioner had established that she had inherited the subject shop from her father.
The mere fact that the petitioner did not produce a registered lease deed, to show that she had let out the subject premises to the respondent, is of no consequence. Lease of immoveable property can be established by other evidence, even in the absence of a registered lease deed. If there is other uncontroverted evidence available on record to support the claim of grant of lease, that would be sufficient to uphold the decree. Dehors the instrument, parties can create a lease as envisaged in the second paragraph of Section 107 of the T.P.Act. As a lease is a transfer of a right to enjoy the property, and such transfer can be made expressly or by implication even in the absence of a registered instrument, the court can determine whether there was in fact a lease otherwise than through such a deed. (Ahmedsaheb14; Anthony v. K.C. Ittoop & Sons ). The status of the parties, on the basis of undisputed facts pertaining to the demised premises, as landlord and tenant can always be accepted and the rights of the parties can be worked out on that basis. (Ahmedsaheb14).
In K.P. Janakiram3, reliance on which is placed by Smt.Sundari R. Pisupati, Learned Counsel for the petitioner, both the courts below had proceeded on the premise that the petitioner had admitted that he was a tenant of the subject property though there was a denial by the petitioner that neither his father nor he was a tenant. The petitioners case was that his father was a purchaser under an agreement, and he was the absolute owner; and after his fathers death, he had become the absolute owner. It is in this context that this Court held that it was not the Law that, whenever the landlord establishes title and the tenant fails to prove the title pleaded by him, such a person shall be construed to be a tenant under the landlord; when the alleged tenant fails to prove his own title, it did not mean that he was a tenant under the owner; his possession could be in any other capacity like a mortgagee or a licensee or even a person in adverse possession; having regard to the specific stand taken by the petitioner-tenant, that he was not a tenant of the subject premises, the question that the Courts below should have decided was whether there was a jural relationship of landlord and tenant between the parties; and the proviso to Section 10 of the Rent Control Act specifically provided that whenever a tenant denies title of the landlord, if such a denial is bonafide, it is incumbent on the part of the Rent Controller to direct the landlord to approach the Civil Court to establish his title and seek eviction of the tenant.
In Avulapalle Mallikarjuna2 this Court held that every person in possession of a premises, even without title, cannot automatically become a tenant of any one including the rightful owner; while possession can come into existence on the unilateral act of parties, a tenancy would emerge only with the consent of parties; the consent can be expressed orally, or in writing; and, until the tenancy is established, there is no basis for the trial Court to order eviction of the respondent. Except to contend that he had purchased the property, it is not even the case of the respondent that his occupation of the subject shop was as a mortgagee or a licensee or that he was in adverse possession. Reliance placed by Smt. Sundari R. Pisupati, on the judgments of this Court in K.P. Janakiram3 and Avulapalle Mallikarjuna2, is, therefore, misplaced.
Findings of fact recorded by the courts below, reached on a careful appreciation of the entire material evidence available on record, should, ordinarily, not be interfered with by this Court in a revision petition filed under Section 22 of the Act. (T.S. Prakash6). The general rule, that the High Court will not interfere with concurrent findings of the courts below, is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or have acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence are not only cases where there is a total dearth of evidence, but also to cases where the evidence, taken as a whole, is not reasonably capable of supporting the finding. (Sebastiao Luis Fernandes4; Hero Vinoth (minor) v. Seshammal ). The orders, passed by both the Courts below, do not fall under any of the exceptions referred to hereinabove. The concurrent findings of fact, reached on an overall consideration of material and relevant facts, by the Courts below do not, therefore, necessitate interference in revision proceedings under Section 22 of the Act.
II. IS FAILURE TO PASS ORDERS IN I.A.No.204 OF 2009, BEFORE R.C.A.No.2 OF 2006 WAS DISPOSED OF, FATAL?
Smt. Sundari R. Pisupati, Learned Counsel for the revision- petitioners, would submit that I.A.No.204 of 2009, requesting the appellate Court to receive additional documents, was not considered before the appeal in R.C.A.No.2 of 2006 was disposed of. Learned Counsel would rely on The Premier Automobiles Ltd., Bombay v. Kabirunnissa ; and Thimmaraju Satyanarayana Rao v. Secretary, I.L.T.D. Co. Staff Co-operative Industrial House Constructions Society Ltd .
On the other hand Sri T.C.Krishnan, Learned Counsel for the sole respondent in this C.R.P, would submit that the documents filed by petitioners 2 to 5 herein, in I.A.No.204 of 2009, are wholly irrelevant and are not supported by any pleadings in the counter filed in R.C.C.No.8 of 2002; all the documents, filed along with I.A.No.204 of 2009 in R.C.A.No.2 of 2006, are forged and fabricated; among the documents, filed along with I.A.No.204 of 2009, is a settlement deed dated 07.03.2005 allegedly executed by Sri C.Hari Krishna in favour of the respondent in R.C.C. No.8 of 2002; the first petitioner filed his chief-examination as RW.1, before the Rent Controller, on 10.02.2005; R.C.C.No.8 of 2002 was adjourned to 13.07.2005 for examination and marking of documents; the respondent in R.C.C. No.8 of 2002 marked Exs.B1 to B8, and was cross-examined thereafter on 14.09.2005; all the documents, which petitioners 2 to 5 in this C.R.P. filed along with I.A.No.204 of 2009, relate to a period prior to 13.07.2005 on which date Exs.B1 to B.8 were marked; no explanation is forthcoming from petitioners 2 to 5 herein regarding non-filing of these documents along with Exs.B1 to B.8; evidence can be let in only to support a plea; in the absence of any plea in the counter filed in R.C.C.No.8 of 2002, it is not open to petitioners 2 to 5 herein to let in evidence in support of a non-existent plea; I.A.No.204 of 2009 in R.C.A.No.2 of 2006 was dismissed on 02.12.2013; and the petitioners herein have not chosen to question the said order either in the present revision or separately.
In The Premier Automobiles Ltd., Bombay19, during the pendency of the appeal before the appellate court, an application for admitting additional evidence was filed by the appellants, which remained undisposed of. Even while pronouncing its judgment disposing of the appeal finally, the appellate court did not advert to it. It was only after the case was disposed of that the application for additional evidence was rejected by a short order, observing that the appellants had sufficient opportunity to produce the documents in the trial court, and it had failed to do so. It is in this context that the Supreme Court held:-
..The learned counsel for the appellant has also placed before us several material pieces of evidence and circumstances including an important admission of the original plaintiff, and in reply the learned advocates for the respondents have relied upon the evidence led on their behalf and accepted by the first two Courts. We do not consider it appropriate to deal with them as in our view, the entire evidence led by the parties requires a fresh consideration by the Court of facts. Accordingly, we allow the appeal, set aside the judgments of the appellate Court and the, High Court, and remit the case to the appellate court for a fresh decision in accordance with law. THE Court will, in the first instance, hear and dispose of the application under Order 41, Rule 27, Civil Procedure Code'and onlv thereafter take up the final hearing of the appeal..
In Thimmaraju Satyanarayana Rao20 an application, for reception of additional evidence, was made before the appellate Court and certain documents were filed along with the said application. On the same day, on which judgment was delivered in the appeal, the application, for reception of additional evidence, was dismissed as infructuous. It is in this context that this Court held:-
.In the light of the peculiar facts and circumstances of the case and taking into consideration the nature of the order which was made by the appellate Court in relation to the application for reception of the additional evidence, the decree and judgment of the appellate Court are hereby set aside and the matter is remanded to the appellate Court for the purpose of deciding the application for reception of additional evidence and also further make appropriate orders in the appeal in accordance with law..
I.A. No.204 of 2009 was filed before the Appellate Court, by petitioners 2 to 5 in this C.R.P, requesting the Court to receive (a) the unregistered sale deed dated 10.12.1984 said to have been executed by the petitioners father in favour of the respondent; (b) the provisional sale deed dated 11.10.1978 allegedly executed by the petitioners father in favour of Sri C.Harikrishna (his son-in-law and the petitioners husband); [c] the settlement deed dated 07.03.2005 allegedly executed by Sri C. Harikrishna in favour of the respondent; (d) the sale deed dated 19.03.1976 allegedly executed by the petitioners father in favour of Sri V.A. Govindayya;
and (e) a telephone bill. Smt. Sundari R. Pisupati, Learned Counsel for the revision petitioners, would fairly state that none of the aforesaid documents are registered documents.
In the affidavit filed in support of I.A. No.204 of 2009, the 3rd petitioner herein stated that Sri C. Harikrishna had executed a settlement deed dated 07.03.2005 in favour of their father Sri K. Chengalraya Chetty; their father was in possession of the documents mentioned in the petition along with other connected documents, as he was the kartha and was managing the family; his deceased father could not file the same as it was misplaced in the house; after his demise, a thorough search was made in the house, and they were able to trace the documents; hence they were filing the same with the application; the same may be received as additional evidence in the appeal; the said documents were material and relevant for a just decision in the case; and the lapse in not filing the same earlier was neither willful nor wanton.
None of the documents (except the unregistered sale deed dated 10.12.1984) which were sought to be produced in evidence, by way of I.A.No.204 of 2009, are referred to in the counter filed by the respondent (the deceased first petitioner in this C.R.P) before the Rent Controller. In the absence of a clear plea no amount of evidence, led in relation thereto, can be looked into and the respondent cannot be allowed to build up a case on a non-existent plea. (Bondar Singh v. Nihal Singh ; Rajgopal v. Kishan Gopal ; Siddik Mahomed Shah v. Mt. Saran ; Bhagat Singh v. Jaswant Singh ). No party can be permitted to travel beyond its pleading and all necessary and material facts should be pleaded by the party in support of the case set up by it. (Ram Sarup Gupta9). There is no lis between the parties on a question unsupported by pleadings and the court would not examine the same even if some evidence is adduced in this regard. (Rajgopal22). Merely taking out an application, under Order 41 Rule 27, to lead evidence will not suffice as no evidence can be let in without any pleading. (Syed and Co. v. State of J&K ).
Courts should be cautious and must always act with great circumspection in dealing with claims for letting in additional evidence. (Municipal Corpn. of Greater Bombay v. Lala Pancham ). The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. 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 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. (K. Venkataramiah v. A. Seetharama Reddy ; Lala Pancham26; Soonda Ram v. Rameshwarlal ; Syed Abdul Khader v. Rami Reddy ; and Union of India v. Ibrahim Uddin ). Parties to the lis are not entitled to produce additional evidence as of course or as a routine. They must satisfy the conditions stated in Order 41 Rule 27. (Basayya I.Mathad v. Rudrayya S.Mathad ).
It was the case of the respondent, in the counter filed by him before the Rent Controller, that he had purchased the subject shop from the petitioners father. Except the unregistered sale deed dated 10.12.1984, the other documents filed along with I.A. No.2004 of 2009 are unconnected with the pleadings. A new case was sought to be set up, for the first time in appeal, by the appellants (petitioners 2 to 5 in this C.R.P). The affidavit filed in support of I.A.No.204 of 2009 makes no mention as to how these documents were necessary for the appellate court to pronounce judgment. As an unregistered sale deed cannot be looked into, to determine whether or not immovable property was alienated, the revision petitioners cannot be said to have suffered prejudice as a result of the appellate court dismissing I.A.No.204 of 2009 after R.C.A.No.2 of 2006 was dismissed on 02.12.2013.
The order passed by the Principal Senior Civil Judge, in I.A.No.204 of 2009 dated 02.12.2013, has not been subjected to challenge, and it is only the order passed in R.C.A.No.2 of 2006 dated 02.12.2013 which is questioned in this C.R.P. The provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the court of appeal it does not authorise any lacunae or gaps in evidence to be filled up. (N. Kamalam v. Ayyasamy ). The appellate court should not, ordinarily, allow new evidence to be adduced in order to enable a party to raise a new point in appeal. (Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co. ; and Ibrahim Uddin30). The requirement of Order 41 Rule 27 CPC must be limited to those cases where it is found necessary to obtain such evidence for enabling the Court to pronounce judgment. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage where, even without such evidence, it can pronounce judgment in a case. (Lala Pancham26; Ibrahim Uddin30; Lala Pancham26; N. Kamalam32).
As has been rightly pointed out by Sri T.C. Krishnan, Learned Counsel, all these documents relate to a period before the respondent marked Exhibits B2 to B8 before the Rent Controller on 14.09.2005. Except for a bald averment that these documents were misplaced, no explanation is forthcoming as to why these documents were not marked earlier or why they were not even referred to in the counter filed in R.C.C.No.8 of 2002. Parties to an appeal shall not be entitled to produce additional evidence unless they have shown that, inspite of due diligence, they could not produce such documents; and such documents are required to enable the court to pronounce proper judgment. (Karnataka Board of Wakf v. Govt. of India ). In the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. A party who had ample opportunity to produce certain evidence in the lower court but failed to do so, or elected not to do so, cannot have it admitted in appeal. (State of U.P. v. Manbodhan Lal Srivastava ; S. Rajagopal v. C.M. Armugam ; and Ibrahim Uddin30). The person seeking admission of additional evidence should be able to establish that, with the best efforts, such additional evidence could not have been adduced at the first instance. (Shivajirao Nilangekar Patil v. Mahesh Mdhav Gosavi ).
I.A. No.204 of 2009 was filed by petitioners 2 to 5 herein seven years after the sole respondent in this C.R.P. had filed R.C.C. No.8 of 2002 before the Rent Controller, and three years after they had filed R.C.A. No.2 of 2006 before the Principal Senior Civil Judge, Chittoor. Where an application to the appellate Court has been made very many years after the filing of the petition, and several years after the appeal had been filed, no interference from this Court is called for against an order passed by the appellate Court refusing to entertain the I.A. (Pramod Kumari Bhatia v. Om Prakash Bhatia ; Lala Pancham26).
If, as contended by petitioners 2 to 5 herein, the father of the petitioner in R.C.C.No.8 of 2002 had really executed the sale deed dated 19.03.1976 in favour of Sri V.A. Govindaiah, the question of his executing a sale deed later in favour of the respondent in R.C.C. No.8 of 2002 on 10.12.1984 would not arise, as he could no longer be said to have title over the subject property. Likewise, after executing a sale deed in favour of Sri V.A. Govindaiah on 19.03.1976, the petitioners father could not have executed a sale deed in favour of Sri C. Harikrishna on 11.10.1978 as he had already parted with his title over the property earlier. As the petitioners father did not have title, and could have conferred title over the property in favour of Sri C. Harikrishna on 11.10.1978, Sri C.Harikrishna could not have executed a valid settlement deed in favour of the respondent on 07.03.2005, as he himself had no title over the property. The submission of Sri T.C. Krishnan, Learned Counsel, that these documents are fabricated cannot, therefore, be brushed aside.
In the instant case, it is not as if the additional evidence was required by the Court to enable it to pronounce judgment. The documents sought to be brought on record are not documents which were discovered later. The documents could have been produced before the Rent Controller. (State of Gujarat v. Mahendrakumar Parshottambhai Desai ). Nothing has been averred as to how these documents have any bearing on any of the issues involved in the present case. Even in the application there is no averment as to the relevancy and necessity of the document to be brought on record by way of additional evidence, and for it to be read in evidence. It is, therefore, not in the interest of justice to allow such an application. (Noor Sk. Bhikan v.State of Maharashtra ). I see no reason, therefore, to accept the submission of Smt. Sundari R. Pisupati, Learned Counsel for the petitioner, that the order of the appellate Court, in R.C.A.No.2 of 2006, should be set aside and the appeal remanded back to the Principal Senior Civil Judge directing him to pass orders in I.A.No.204 of 2009 either before or along with R.C.A.No.2 of 2006. CONCLUSION:
Viewed from any angle, the order of the Learned Principal Senior Civil Judge, Chittoor in R.C.A.No.2 of 2006 dated 02.12.2013, affirming the order of the Rent Controller in R.C.C.No.8 of 2002 dated 11.09.2006, does not necessitate interference in the present revision proceedings. The C.R.P fails and is, accordingly, dismissed. The miscellaneous petitions, if any pending, shall also stand dismissed. No costs.
______________________________ RAMESH RANGANATHAN, J.
Date:08-08-2014.
Note:
L.R. copy to be marked.
B/O MRKR/CS After pronouncement of the order, Smt.Sundari R.Pisupati, Learned Counsel for the petitioners, submitted that the petitioners undertook to voluntarily vacate the premises within three months; and this Court may grant them three months time to vacate the subject premises. As no affidavit of undertaking has been filed by the petitioners before this Court, it would suffice if they are permitted to submit an affidavit of undertaking before the Court below. In case an undertaking is filed by the petitioners, within one week from today, to vacate the subject premises within three months from today, the Court below shall consider the same, and pass orders thereupon, in accordance with law. ______________________________ RAMESH RANGANATHAN, J.
Date:08-08-2014.