Madras High Court
Nizar Zaffar Lilali vs H.A.K. Mohammed Moshin And Ors. on 16 April, 1999
Equivalent citations: AIR1999MAD344, (1999)IIMLJ679, AIR 1999 MADRAS 344, (1999) 2 MAD LJ 679 (1999) 2 MAD LW 577, (1999) 2 MAD LW 577
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER M. Karpagavinayagam, J.
1. Nizar Zaffar Lilani, the tenant having aggrieved over the judgment and decree of the VIII Court of Small Causes, Madras in R.C. A. No. 913 of 1993 dated 2-3-1995 in confirming the fair order and decretal order of the XVI Court of Small Causes, Madras in M.P. No. 266 of 1993 in R.C.O.F. No. 2750 of 1991 dated 18-8-1993, dismissing the application filed by the tenant to set aside the ex parte order of eviction passed by the Rent Controller dated 17-2-1992.
2. The facts leading to the presentation of this revision before this Court could be summarised as follows :--
(a) The petitioner is the tenant under the respondents, in respect of a non-residential portion for a monthly rent of Rs. 2,000/-, M/s. Khazana Arts and Antiques is the name of the business under which the tenant is carrying on business in Handicrafts as sole proprietor. Since the tenant was not regular in payment of rents and neglected to pay the amount for the period from 1-1-1991 to 30-9-1991, despite the notice dated 22-1-1991 and he suddenly closed his business and sub-Set the shop to a third party, who began to carry on the business in the said shop under the name and style of "M/s. Teenagers", without the knowledge and consent of the landlords, the respondents herein, they filed a petition for eviction in R.C.O.P. No. 2750 of 1991. Despite receipt of notice, the tenant did not choose to appear before the Court. Therefore, the tenant was set ex parte and the ex parte order of eviction was passed on 17-2-1992 by the Rent Controller.
(b) The tenant, the petitioner herein, on 30-3-1993 filed a petition to set aside the ex parte order along with an affidavit. There was some delay in re-presentation. Ultimately, the same was condoned and the petition for setting aside the ex parte order was numbered as M.P. No. 266 of 1993. In the said pstition, notice was ordered on 19-4-1993. The counter was filed by the landlords on 15-6-4993 contending that the affidavit filed before the Court was not actually signed by the tenant and that the tenant was not at Madras and he had gone out of station and the signature of the tenant was forged by the sub-tenant. In spite of this counter, no rejoinder has been filed subsequently to controvert the allegation made in the counter-affidavit filed by the landlords. The landlord also was examined as a witness in the enquiry. He reiterated what is stated in his counter-affidavit. He was also cross-examined by the counsel for the petitioner on 30-7-1993. However, the petitioner did not choose to file any documents nor appeared before the Court to establish that the signature in the affidavit filed before the Court was his. Therefore, the Rent Controller dismissed the said petition on 18-8-1993 on the ground that the signature of the tenant in the affidavit has not been proved.
(c) The above order was challenged in the appeal by the petitioner/tenant in R. C. A. No. 913 of 1993, before the appellate authority. After hearing the counsel for the parties, the appellate authority also held that the petitioner has not proved his signature in the affidavit filed before the Rent Controller seeking to set aside the ex parte order of eviction and dismissed the appeal. On being aggrieved over this concurrent judgment, the petitioner has filed this revision.
3. Mr. Raghavachari, the counsel appearing for the petitioner, would submit the following contentions, while attacking the impugned orders :
"By invoking Section 73 of the Evidence Act, in order to find out whether the signature found in the affidavit was put by the tenant, the Rent Controller ought to have compared the signatures to find out the truth or he must have sent the documents for Expert's opinion under Section 45 of the Evidence Act. In the absence of exercising those powers, the Rent Controller cannot have adverse inference to hold that the signature was not put by the tenant in the affidavit.
4. To substantiate this submission, he cited the decision in Govind Laxman Solapurkar v. Dattatraya Damodar Kelkar, , M. Narayanaswami v. V. Yangatanna, and Ramsarup Prasad v. Central Bank of India, . These decisions would show that in spite of direction of the Court to a party in whose possession best evidence is available, if the party fails to produce the same, then only the Court will be permitted to draw adverse inference against that person.
5. The learned counsel for the respondents would submit that the finding given by the Rent Controller as well as the appellate authority, in the absence of any infirmity, may not be easily interfered with under Section 25 of the Act, the scope of which is so limited. He would also point out that the respondents by filing counter and examining themselves as witness would specifically state that the petitioner/tenant did not sign in the affidavit in question and he sub-let out the premises without any authorisation to the party who put his signature, in order to play fraud on the Court and that this specific allegation had not been controverted on the side of the petitioner either by examining himself or through some other evidence.
6. I have carefully considered the submissions made by the counsel for the parties.
7. It cannot be disputed that this Court under Section 25 of the Act, would certainly interfere with the impugned orders, if those orders suffer from the infirmity. If there is no such infirmity, which would affect the entire proceedings, then this Court may not interfere with the orders passed by the authorities below, especially by invoking revisional powers.
8. The chronological events would show that as early as 22-1-1991 the landlords issued a notice to the tenant intimating that he had defaulted in payment of rents from 1-1-1991 to 30-9-1991. On the ground of wilful default and subletting the portion to a third party, the landlords filed an application for eviction. Even after service of notice, the tenant did not choose to appear before the Court. Therefore, on 17-2-1992 ex parte order of eviction was passed.
9. As indicated earlier, the petitioner only on 30-3-1993, nearly after one year, filed an application to set aside the ex parte order. No doubt, it is true that he mentioned in the affidavit that he came to know about the ex parte order only on 3-3-1993. But, it shall be noticed that the affidavit is stated to have been sworn to by the petitioner/ tenant, attested by a Bombay Lawyer. This shows that the petitioner being a tenant, as stated by the landlords in their eviction petition is not running the business now at Madras and he had gone out of station. When the above application was resisted by the landlords through the counter filed on 15-6-1993, there is no reason as to why the petitioner did not choose to deny the allegation made by the landlords that the signature was forged, by filing an additional affidavit.
10. Furthermore, one of the landlords examined himself as a witness, who would state specifically in the box that he had acquaintance with the signatures of the petitioner/tenant and that the signature found in the affidavit is not of his and that the same was forged only by the sub-tenant. Despite this deposition by the landlord, no steps have been taken by the petitioner to examine himself as a witness in the enquiry to controvert the said allegation. Ultimately, on 18-8-1993 the petition was dismissed. Even before the appellate authority, there was no effort taken by the tenant to prove that he only filed the said affidavit.
11. It is observed by the appellate authority in its order that even while the appeal was pending before the Court, the petitioner did not appear before the Court and stated that he had filed the petition and that no documents were filed or evidence adduced to prove the same. Therefore, both the authorities below have considered this aspect and come to the conclusion that the petitioner has not proved that he only filed the affidavit requesting for setting aside the ex parte order.
12. The contention by the counsel for the petitioner that the learned Rent Controller ought to have invoked Sections 73 and 45 of the Evidence Act, does not appeal to me, since there were no other documents filed on behalf of the petitioner to prove the admitted signature, especially when the landlord would state in the box that he was acquainted with the signatures of the petitioner/tenant and that he did not sign in the affidavit.
13. Moreover, as correctly pointed out by the Rent Controlleras well as the appellate authority, when the specific allegation was made by the landlords that the tenant has not signed in the affidavit, it is for the tenant to prove that he only approached the Court to set aside the ex parte order of eviction. That apart, the sequence of events, even assuming that the petitioner only signed in the affidavit filed before the Court even though there are no acceptable materials to establish the same, would reveal that the petitioner did not have interest to pursue the matter.
14. The petition for eviction was filed in 1991. The ex parte order was passed on 17-2- 1992. The petitioner filed an application to set aside the ex parte order only in 1993. Now, nearly eight years have elapsed. In the affidavit also, I do not find any valid reasons to conclude that his petition for setting aside the ex parte order of eviction is not a belated one. Under these circumstances, 1 do not incline to interfere with, the orders passed by the authorities below.
15. In the result, the revision is dismissed. No costs.