Jharkhand High Court
Unknown vs Dhirendra Kumar Jain on 24 June, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S. A. No. 285 of 2017
1(a). Sami Ahmad
1(b). Shane Ahmad
1(c). Amrita Bano
1(d). Sarwari Bano .... .... .... Appellants
Versus
1. Dhirendra Kumar Jain
2. Md. Kasim .... .... .... Respondents
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Appellants : M/s Indrajit Sinha, Advocate & Puja Agarwal, Advocates
For the Respondents : Mr. Ayush Aditya, Advocate
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Oral Order 08 / Dated : 24.06.2024
1. Plaintiff filed the suit for eviction on the ground of default under Section 11 (i)
(d) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 with respect to the suit property fully detailed in Schedule-A of the plaint.
2. The brief facts leading to the present appeal is that appellant(s) is the defendant(s) and the appeal has been preferred against the judgment of affirmance passed in Eviction Title Appeal No. 3 of 2009 arising out of the Eviction Suit No. 30 of 1990.
3. The case of the plaintiff is that he purchased the suit premises shop room No. 15 along with other various shop rooms from one Prabhat Kumar Mukherjee through a registered deed of absolute sale. The suit premises was in occupation of defendants who are running a cloth shop under the caption of "Bajaj Vastralaya", but the rent receipts were being issued to Md Quashim (D2) in the name of Washi Ahmad against the payment of rent.
4. After purchase, the plaintiff informed the defendant who atorned the plaintiff and started paying rent to him without any objection. Defendant No. 2 continued to pay rent to him up to the month of February,1985 at the rate of Rs. 40/-.
5. Md. Washi Ahmed lost his interest in the premises, the defendants themselves approached him in the month of February 1985 for grant of rent receipt in the name of Defendant no.1 and after negotiation and a mutual understanding the monthly rent of Rs. 40/- was enhanced to Rs. 250/- from the month of March, 1985 Defendant no.2 used to tender the rent and rent receipt was issued in the 1 name of Defendant no.1.
6. Defendants continued to make payment of rent but in irregular and later on the defendants defaulted in payment of rent for which the suit was filed.
7. The case of defendant No. 1 Md. Hashim who filed his written statement is that the suit is not maintainable because of the fact that State of Bihar is also necessary party of the suit and the State has not been impleaded as a party. The plaintiff had no right, title and interest in the suit premises, the defendant deemed to set up a new case that suit premises was settled to one Raj Gopal Rai in the year 1865 followed by registered deed of lease bearing No. 288, dated 31.08.1866 executed by Deputy Commissioner, Hazaribagh.
8. The briefly stated the case of the defendant is that suit property did not belong to the plaintiff but was part of Khas Mahal Estate devolved upon one Rajeshwari Devi but was a part of Khas Mahal Estate. Therefore sale deed executed in favour of the son of Renuka Sundari Devi daughter of Kena Ram Chatterjee was void and illegal.
9. On the basis of the pleading of the parties, the following main issues were framed:-
i) Whether there exists any relationship of landlord and tenant between the parties?
ii) Whether defendants have not paid rent in accordance with law for December, 1985 and October, 1986 and on the ground liable to be evicted from suit premises?
iii) Whether defendants also made default in payment of rent for January, 1987 to march, 1987, November, 1987, December, 1987, July 1988, February, 1989, May, 1989, January, 1990 March, 1990 and that ground liable to be evicted for suit premises?
10. Both these issues were answered in favour of the Plaintiffs and the suit was decreed by the trial Court and affirmed in appeal
11.The second appeal was admitted to be heard on the following substantial questions of law:-
i) Whether the learned trial Court and also the first appellate Court committed error in passing the impugned judgment ignoring the fact that appellant(s) was not a party in the interpleader suit in first appeal No. 293 of 1989. Hence, any 2 finding recorded therein is not binding upon the same can be used against him.
ii) Whether both the courts below have committed mistake in interpreting the finding recorded in interpreter suit by ignoring the provisions as contained in Order XXXV Rule 5 of C.P.C. as also in view of judgment of Hon‟ble Supreme Court reported in the case of Purshottam Das Tandon dead by legal representatives Vs. Military Estate Officer and other Officers 2014(9) SCC
344.
12.Defendant no. 2 had filed one Interpleader Suit No. 52 of 1983 and his brothers and the State of Bihar and Khas Mahal Officer of Hazaribagh for declaration of real owner as to whom they should pay rent of the suit premises which was disposed of and now first appeal no. 293 of 1989 was still pending.
13.It is argued by the learned counsel on behalf of the appellant that he was not a party in the Interpleader Suit No. 52 of 1983 and also in the appeal arising thereof i.e., First Appeal No. 293 of 1989.
14.Learned trial Court decreed the suit by recording a finding in favour of the plaintiffs that there existed a landlord and tenant relationship between the plaintiff and the defendant. Defendant had committed default in payment of rent.
15.The learned First Appellate Court concurred with the finding of the Trial Court and dismissed the appeal.
16.The main contention of the learned counsel for the appellant is that there is no evidence on record to support the finding of the learned courts below regarding landlord and tenant relationship between the plaintiff and defendant No.1/ appellant. It was defendant No. 2 who had filed the interpleader suit which was against the mandate of law under Order XXXV Rule 5 of the C.P.C. and any final finding with respect to it cannot have a bearing on the merit of the case of the appellant. Reliance is placed on 2014 (9) SCC 34 para 12 and 14.
17.It is also argued that any rent receipt issued in favour of the brother that is defendant No. 1 and defendant No. 2 cannot be made an evidence of landlord and tenant relationship as far as defendant No. 1 is concerned.
18.The crux of the case of the defendant-Md. Hasim is that his brother Md. Kasim defendant no. 1 had taken the shop in rent from Khas Mahal authority.
19. It is argued by learned counsel for the plaintiff respondent that it has been specifically pleaded in para 2 of the plaint that the suit premises was in occupation of the defendants (D-1and D-2) who are running the shop in the name 3 and style of Bajaj Vastralaya but the rent received were issued in the name of Washi Ahmad by the agent of the vender of the plaintiff. There is no specific denial of this averment in para 9 of the written statement.
20.It is further argued that Ext. 5 is the clinching evidence which establishes landlord tenant relationship between the plaintiffs and defendant No. 1-Md. Hasim. This Ext. is the money order receipt of the rent remitted by defendant no. 1 to the plaintiffs. Furthermore, Ext. 4 is the letter sent by the present appellant Md. Hasim (D-1) to the plaintiffs dated 12.05.1985 seeking permission to repair the shop from the plaintiffs. Lastly, it is argued that Learned First Appellate Court has in its judgment noted Ext.3 which was deposition made of the appellant Md. Hasim in Misc. Case No. 106 of 1984 arising out of Execution Case of a co-shop owner, wherein it had been deposed by the appellant that he was in occupation of the shop taken on Khas Mahal lease from the Govt. but he could not stay when such plea has been taken and when his brother had entered into such lease.
21.It is also argued that Interpleader Suit which his brother has filed bearing 52/1983 was dismissed and it is not only evidence to show that the present appellant was tenant in the said premises, but other collateral evidence regarding it. Section 2(g) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 reads as under:
"Landlord" means the owner of the building and includes a person who for the time being is receiving or is entitled to receive the rent of the building, whether on his own account or on behalf of another, or as an agent, trustee, executor, administrator, receiver, guardian or whoever so receives the rent, or entitled to receive the rent, if the building were let to a tenant."
22.In the said inter pleader suit, it was decided that the plaintiffs were entitled to receive the rent and the said finding attained its finality up-to the Hon‟ble Supreme Court.
23.It is argued by learned counsel for the appellant that although both these documents have been marked with objection but at this stage the appellant seeks to raise the point of admissibility. Reliance is placed :
i. (2013) 10 SCC 136 para 9,
ii. (2007) 2 SCC 355 para 24,
iii. (2008) 2 SCC 350 para 24, 25 and
4
iv. (2023) 9 SCC 587 para 53.
FINDING
24.Having considered the submissions advanced on behalf of both sides and the materials on record, it is apparent that there is a concurrent findings of both the Courts of landlord tenant relationship and in default in payment of rent. There documentary evidence like Exts. 4 and 5 discussed above on the basis of which the said finding has been recorded apart from other evidence. Question regarding their formal proof has been raised at this stage, although they have been marked without objection which is not permissible in view of the ratio laid down in Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752 wherein it has been held :
19. Order 13 Rule 4 CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of the court, which endorsement signed or initialled by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence. In the latter case, the document may be returned by the court to the person from whose custody it was produced.
20. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the 5 opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.
25. Furthermore, Section 67 of the Evidence Act is not the only mode of proof of a document. It can be proved Section 67 does not lay down any particular procedure for proof of a document. The signature and handwriting can be proved by any of the following methods:
By the admission of the party who is the executant under section 18. If A alleges in a suit that a promissory note was written by B and B admits that the handwriting or signature on the promissory note was his that will be sufficient proof of the execution. If B denies that the document was written or signed by him, A cannot prove the contents of the document by the oral admission by B in the light of section 22 of the Evidence Act. Section 65b requires that the admissions must be a written one. Under section 70 admission by the party of the execution by himself, dispenses with the proof of its attestation.
By person acquainted with handwriting under section 47. A person is said to be acquainted with handwriting in the following cases :
i. If he has seen the person write.
ii. An attesting witness under section 68 iii. When he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person.
iv. When in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. Handwriting experts evidence under section 45 Courts comparison under section 73 In the present case Ext-4 is the letter written by Defendant No.2 and Ext-5 is money order receipt dispatched by him which have been duly proved. If the appellant intended to rebut the proof of these documents, steps should have been taken by him in the trial Court and not at this stage.6
26. Apart from this Defendant no.1 sought to question the title of the Plaintiff by filing an interpleader suit by Defendant no.1, which was not maintainable on behalf of a tenant in view of the O35 Rule 5, which was dismissed and attained its finality up-to the Hon‟ble Supreme Court.
27. This Court is of the view that learned Courts below did not commit any error in accepting the final judgment and decree passed in the interpleader suit against Defendant no.1 as evidence which falsified the claim of the appellant that it was a Khas Mahal land. More so Defendants cannot take advantage of their own fault by arguing that such a suit was not maintainable under O35 R 5 and therefore its finality shall not be binding.
28. This Court does not find any merit in this second appeal and is accordingly dismissed with Cost. Cost assessed to Rs 25,000/-.
29. Fact of the matter is that the appellant in order to prolong his illegal occupation of the suit premises is misusing the process of law. It will be relevant note the observation of Hon‟ble Supreme Court in this regard.
Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249
47. We have to dispel the common impression that a party by obtaining an injunction based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his legitimate profit. It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh v. State of Punjab [(2000) 5 SCC 668 : 2001 SCC (Cri) 190] this Court was constrained to observe that perjury has become a way of life in our courts.
52. The main question which arises for our consideration is whether the prevailing delay in civil litigation can be curbed? In our considered opinion the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials:
A. **** B. ****.
C. Imposition of actual, realistic or proper costs and/or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings. D. The court must adopt realistic and pragmatic approach in granting 7 mesne profits. The court must carefully keep in view the ground realities while granting mesne profits.
Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705
8. It is well settled that mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the court below. A prayer for the grant of stay of proceedings or on the execution of decree or order appealed against has to be specifically made to the appellate court and the appellate court has discretion to grant an order of stay or to refuse the same. The only guiding factor, indicated in Rule 5 aforesaid, is the existence of sufficient cause in favour of the appellant on the availability of which the appellate court would be inclined to pass an order of stay. Experience shows that the principal consideration which prevails with the appellate court is that in spite of the appeal having been entertained for hearing by the appellate court, the appellant may not be deprived of the fruits of his success in the event of the appeal being allowed. This consideration is pitted and weighed against the other paramount consideration: why should a party having succeeded from the court below be deprived of the fruits of the decree or order in his hands merely because the defeated party has chosen to invoke the jurisdiction of a superior forum. Still the question which the court dealing with a prayer for the grant of stay asks itself is: why the status quo prevailing on the date of the decree and/or the date of making of the application for stay be not allowed to continue by granting stay, and not the question why the stay should be granted.
30. As observed and held by the Apex Court from the date of the decree of eviction, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises.
Learned Executing Court is directed to execute the decree within six months in the light of guide lines laid down by the Apex Court in Rahul S. Shah v. Jinendra Kumar Gandhi, (2021) 6 SCC 418. Finally, for assessing mesne profits an „inquiry‟ shall be held for payment of market rent for the demised property from the date of eviction decree passed by the learned trial Court.
Pending I.A., if any, stands disposed of.
(Gautam Kumar Choudhary, J.) AKT/Satendra Uploaded 8