Allahabad High Court
Mahfooz Hasan vs Harish Chandra Sahai on 27 March, 1987
Equivalent citations: AIR1988ALL69, AIR 1988 ALLAHABAD 69, (1987) 2 ALL RENTCAS 100.2
ORDER K.N. Misra, J.
1. The plaintiff-revisionist filed a suit for ejectment of the defendant-opposite party from House No. D-61, Maha Nagar Extension, Lucknow and for recovery of Rs. 2950.00 as arrears of rent from 9-4-1980 till 24-1-1981 and mesne profits from 25-1-1981 at the rate of Rs. 300/- per month. The contention of the plaintiff is that the accommodation in suit was let out to the defendant on a monthly rent of Rs. 300/- per month. The tenancy started on 9-10-1977 and according to the plaintiff the defendant paid rent up/to the period 8th April 1980 and thereafter stopped payment of rent as he wanted to pay to the plaintiff the rent at the rate of Rs. 150/- per month only which the plaintiff refused to accept being not the monthly rent of premises. Since the defendant fell in arrears of rent, so the plaintiff issued registered notice dated 20th Dec. 1980 under Section 106 of the Transfer of Property Act through his counsel, which was served on the defendant on 26-12-1980 whereby he was called upon to pay the arrears of rent from 9-4-1980 till 8-12-1980 within a period of one month from the date of service of notice and also requiring him to quit and vacate the premises on the expiry of one month from the date of the receipt of notice. The defendant contested the notice and in his reply dated 20th January, 1981 reiterated his stand that the rent of the premises was Rs. 150/- per month and not Rs. 300/- as claimed by the plaintiff. Since the defendant failed to comply with the notice and did not vacate the premises, and, as such, the plaintiff filed the suit for ejectment and arrears of rent and damages on 24-2-1981.
2. The defendant contested the suit with the allegations that he is tenant in the accommodation in question from 9th Oct. 1977 on a monthly rent of Rs. 150/-per month. The premises were not let out on a monthly rent of Rs. 300/- but the agreed rent is Rs. 150/- per month which the defendant asserted to have been paying regularly. The defendant admitted service of notice on him sent by the plaintiff, to which reply was sent by him asserting that the agreed monthly rent was Rs. 150/- and not Rs. 300/- as claimed by the plaintiff. In the additional pleas it has been averred that earlier to it the defendant had made several requests to the plaintiff to carry out annual whitewashing but he did not pay any heed to it and so a notice dated 7th April, 80 was sent to the plaintiff on 12-4-1980, but it was returned as 'refused'. It annoyed the plaintiff and he had, therefore, given registered notice dated 19-4-1980 calling upon the defendant to vacate the premises as he required for his own use. A reply to this notice was also sent to the plaintiff. It has further been averred by the defendant that when the plaintiff refused to accept the rent sent to him for the months of April and May, 1981 the same was deposited in the court of Munsif South, Lucknow under Section 30 of the Act No. 13 of 1972 and thereafter the monthly rent is regularly deposited in that court and the plaintiff is aware of it. In para 11 of the written statement it has further been averred that the plaintiff in his notice for ejectment and arrears of rent dated 20th Dec. 1980, had demanded the monthly rent at the rate of Rs. 300/- per month. Since the rate of rent was disputed and so the defendant moved an application on 28-1-1981 to the Additional District Magistrate (Civil Supplies), Lucknow for settling the dispute and for fixing standard rent as required under the U.P. Act No. 13 of 1972 and in those proceedings plaintiff had put in appearance and had filed his objection. The defendant thus asserted in para 13 of the written statement that he never wanted to withhold the rent due from him. The defendant deposited rent for the period from 9-3-1981 to 30th May, 1981 which alone was due against him at the rate of Rs. 150/- per month together with 9% interest thereon. The defendant also claimed adjustment of the amount deposited by him in the court of Munsif South, Lucknow. It has, thus, been asserted in para 15 that at the time of filing of the present suit there was no rent due as the last rent was deposited for the period 9-1-1981 to 8-2-1981 in Misc. Case No. 229 of 1980 before the Munsif South, Lucknow. Thus with these allegations the defendant has asserted that the suit is liable to be dismissed.
3. After taking evidence of parties the suit was decreed by the learned III Additional District Judge, Lucknow, vide judgment and decree dated 15-1-1982 by recording a finding that the agreed rent of the premises in dispute was Rs. 300/- per month. It had, thus, been held that since the defendant had not deposited the full arrears of rent at the said rate of rent within the statutory period and thus clear default has been committed by the defendant. And with these findings the plaintiffs suit was decreed for the ejectment of the defendant and for the arrears of rent together with pendente lite and future damages at the rate of Rs. 300/- per month,
4. Aggrieved by said judgment and decree the defendant had preferred Civil Revision No. 21 of 1982 in this Court which was heard and allowed, vide judgment and order dated 4-4-1983 and the case was remanded to the trial court for decision afresh on the basis of evidence already on record. It was, however, left open to the parties to lead such evidence as they may consider proper and relevant for the purposes of establishing or explaining the admission said to be contained in the affidavit of the plaintiff about the monthly rent paid by the previous tenant, a certified copy of which was filed by the defendant in trial court, (Paper No. Ga/18). On other pleas, it was observed that the parties would not be permitted to lead any further evidence.
5. After remand of the case this suit was heard and dismissed by the VI Additional District Judge, Lucknow by recording a finding that the agreed monthly rent of the disputed premises was Rs. 150/- and not Rs. 300/-. Thus on this finding it was held that the defendant had not committed any default in payment of rent. Aggrieved by it plaintiff has now preferred this revision.
6. The main question involved for consideration in the present case is whether the rent of the premises in question is Rs. 300/-or Rs. 150/-. Learned counsel for the revisionist urged that the decision in the case rendered after remand is unsustainable as the findings recorded by learned lower court stand vitiated being based on misstatement of fact apparent on the face of the record. Learned counsel contended that after remand of the case the trial court was to record a finding afresh on the aforesaid crucial question about the agreed monthly rate of rent of the premises in suit by taking into consideration on merits the entire evidence on the record. Learned counsel pointed out that the court below observed that there was no direct documentary evidence to give support to the version of either of the parties on their assertion about rate of rent and it thus proceeded to consider the oral evidence led by the parties on the point. Learned counsel pointed out that the plaintiff besides examining himself had produced two other witnesses, namely, Dr. M. C. Zafa (P.W. 2) and Jagat Narain Baijal (P.W. 3), who had, deposed that the monthly rent of Rs. 300/-was settled in their presence and the defendant had paid Rs. 300/- on 6-10-1977 as advance rent to the plaintiff in respect of the premises in suit. Referring to the evidence learned counsel pointed out that the defendant Harish Chandra Sahai was introduced to the plaintiff by Sri Jagat Narain Baijal (P.W. 3) and the talk regarding letting out premises on the monthly rent of Rs. 300/- had taken place between the plaintiff and the defendant at the dispensary of Dr. M. C. Zafa, who was also examined as P.W. 2 and he corroborated the testimony of the plaintiff and Jagat Narain Baijal (P.W. 3). Learned counsel urged that nothing could be made out in the cross-examination of the plaintiff and his witnesses to discredit their testimony on the said question regarding settlement of monthly rent Rs. 300/- in respect of the premises in* suit.
However, the testimony of the plaintiffs aforesaid witnesses has not been accepted by the Court below on the sole ground that they have instead of corroborating the version of tenancy given in the plaint, have given inconsistent versions. The observation in the judgment reads as under : --
"The other witnesses namely, P.W. 2, Dr. M. C. Zafa and Sri Jagat Narain Baijal, P.W. 3 have stated that the tenancy commenced from 6th October, 1977 and advance rent was paid the same day. In the plaint tenancy is said to have commenced on 9th April, 1980. Thus all witnesses of the plaintiff instead of corroborating the version of tenancy given in the plaint have given inconsistent version."
7. Learned counsel urged that the above observation on which the evidence of plaintiffs witnesses has been rejected is based on altogether a misstatement of fact. Referring to the pleadings in the plaint learned counsel pointed out that nowhere in the plaint it has been averred that the tenancy commenced on 9th April, 1980 and thus by misreading the pleadings in the plaint the learned court below has committed a manifest error of fact apparent on the face of the record in rejecting the testimony of plaintiffs witnesses. It was thus Urged that the findings based on misstatement of fact stand vitiated in law and cannot be sustained.
8. In reply, learned counsel for the defendant-opposite party urged that it is no doubt correct to say that in the plaint tenancy has not been said to have commenced on 9th April, 1980 and it had in fact commenced on 9th Oct. 1977, the day on which the defendant had occupied the premises in suit, but the findings recorded by the trial court cannot be said to have vitiated merely on the said ground. According to learned counsel it appears to be merely a typing error in the judgment wherein instead of 9th Oct. 1977 it has been inadvertently typed as 9th April, 1980. Learned counsel further contended that the plaintiff as well as his witnesses deposed that the talk relating to letting out of the premises in suit had taken place on 6th October, 1977 and according to them the advance rent of Rs. 300/- was also paid on that date, then how the tenancy can be said to have commenced on 9th Oct. 1977. He thus contended that the plaintiffs case has been rightly rejected by the learned court below. In reply learned counsel for the plaintiff pointed out that although the talk about the letting out of the premises had taken place on 6th Oct. 1977 and the advance rent was also paid on that day, but since the defendant had occupied the premises on 9th Oct. 1977, and, as such, the monthly tenancy began on the said date. Learned counsel further pointed out that it was not disputed by the defendant that the monthly tenancy started from 9th October, 1977. He also referred to the testimony of the witnesses examined on behalf of the plaintiff and pointed out that nowhere in their depositions the plaintiffs witnesses stated that the tenancy commenced from 6th Oct. 1977; nor anywhere in the plaint it is mentioned that the tenancy commenced from 9th April, 1980. Learned counsel thus urged that the findings recorded by the learned court below on the said crucial question about the agreed rate of rent of, the premises in suit is based on misreading of evidence and pleadings contained in the plaint. Learned counsel also pointed out that the court below had mainly rejected the testimony of the plaintiff's witnesses expressly on the said ground and it, therefore, could not be said to be a clerical or typing error.
9. I have carefully persued the findings recorded by the learned court below and 1 have also gone through the testimony of witnesses examined by the parties and also the pleadings contained in the plaint and the written statement. Nowhere in the plaint the tenancy is said to have commenced from 9th April, 1980. The plaintiffs witness Dr. M. C. Zafa (P.W, 2) and Jagat Narain Baijal (P. W. 3) have stated in their depositions that the said talk between the parties regarding settlement of monthly rent of Rs. 300/- in respect of accommodation in question had taken place in their presence on 6th Oct. 1977 and one month's advance rent was paid by the defendant to the plaintiff at that time. It is not disputed by the defendant that the tenancy of then premises in suit commenced on 9th Oct. 1977 the date on which the defendant occupied the premises. In para 1 of the written statement it has been averred in reply to para 1 of the plaint that the defendant is tenant since 9th Oct. 1977. It has, however, been denied that the agreed rate of rent is Rs. 300/-per month. According to defendant the agreed rent is Rs. 150/- per month. Thus the crucial question for consideration in the case is as to what is the agreed monthly rent of the premises in suit.
10. Learned court below in the impugned order observed that there is no direct documentary evidence to give support to the version of either of the parties on the assertion of rate of rent. He, however, rejected the testimony of plaintiffs witnesses by misreading pleadings in the plaint which is apparent from the observations in the judgment already quoted above.
11. The testimony of the plaintiffs witnesses has not been accepted merely on the ground that it is inconsistent with the pleadings in the plaint, which according to the learned court below has been stated in the plaint to have commenced from 9th April 1980. This is an error quite apparent on the face of record because nowhere in the plaint it is stated that the tenancy commenced from 9th April 1980. This error cannot be said to have occurred due to any typing mistake because the learned court below has specifically referred to said date, while rejecting the testimony of the plaintiffs witnesses. The evidence of plaintiff's witnesses has been rejected on the ground of being materially inconsistent with the pleadings in the plaint on the point of commencement of tenancy, which in my opinion is a clear misstatement of fact. Learned court below has thus acted illegally and with material irregularity in exercise of jurisdiction in rejecting the plaintiffs evidence on misreading of pleadings. The impugned judgment and order thus stands vitiated by the said error apparent on the face of the record and deserves to be set aside.
11 A. Learned counsel for the defendant, however, urged that this court in exercise of revisional jurisdiction under Section 25 of the Provincial Small Cause Courts Act cannot interfere with the findings recorded by the court below even if the findings recorded are erroneous and bad in law. In support of his contention learned counsel referred to the decision in Hari Shanker v. Rao Girdhari Lal Chaudhari AIR 1963 SC 698 wherein Hon'ble Supreme Court observed : --
"The distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way, as has been done in second appeals arising under the Code of Civil Procedure. The power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case has been decided according to law. Under S. 115 of the Civil P.C. the High Court's powers are limited to see whether in a case decided, there has been an assumption of jurisdiction where none existed, or a refusal to exercise jurisdiction where it did possess, or there has been material irregularity or illegality in the exercise of that jurisdiction. The right there is confined to jurisdiction and jurisdiction alone. In other Acts, the power is not so limited, and the High Court is enabled to call for the record of a case to satisfy itself that the decision therein is according to law and to pass such orders in relation to the case, as it thinks fit." (Para?).
The phrase "according to law" in Section 35. of the Delhi and Ajmer Rent Control Act refers to the decision as a whole, and is not to be equated to errors of law or of fact simpliciter. It refers to the overall decision which must be according to law which it would not be, if there is a miscarriage of justice due to a mistake of law."
12. Applying the guideline provided in the above decision I find that the impugned judgment and order cannot be sustained as the learned court below quite apparently acted illegally in exercise of jurisdiction in basing its finding by misreading the pleadings contained in the plaint. The evidence examined on behalf of the plaintiff on the aforesaid crucial question regarding agreed rate of rent of the premises in dispute has been rejected by the court below merely on a misstatement of fact that in the plaint it has been stated that the tenancy commenced from 9th April, 1980. 1 13. It cannot be disputed that if a finding is based on misreading of pleadings of the parties or misreading of the evidence on record, the same would stand vitiated in law. The court having jurisdiction to decide a case has to record findings by accurately reading the pleadings and evidence Jed by the parties and not to base his findings on misstatement of facts by making a wrong reading of the pleadings or misreading of evidence led by the panics.
14. It is no doubt correct to say that under Section 25 of the Small Cause Courts Act, High Court cannot interfere with the plain finding of fact arrived at by the court below. It also cannot reassess the value of evidence and substitute its own conclusion of fact in place of those reached by the Court below. But if the court below has recorded a finding on misstatement of facts by misreading the pleadings of parties or misreading evidence on record, then the findings recorded by the court below would stand vitiated in the eye of law and would call for interference by this court in exercise of revisional jurisdiction under Section 25 of the Small Cause Courts Act.
15. I have referred above the evidence led by the plaintiff not with a view to reassess the value of the evidence and to record finding on reassessment of the evidence led by the parties, but it has been referred in order to indicate that the court below has committed manifest error apparent on the face of record in rejecting the evidence of the plaintiffs witnesses by misstating the fact that it is inconsistent with the pleadings contained in the plaint regarding the commencement of tenancy.
16. Thus, in view of the above the impugned judgment and decree passed by court below stands vitiated and cannot be sustained and deserve to be set aside.
17. Before parting with the case, the other submission of learned counsel for the plaintiff-revisionist may also be dealt with. He had contended that the question whether agreed monthly rent of the premises was Rs. 300/- as asserted by the plaintiff or Rs. 150/- as asserted by the defendant has got to be determined only on the consideration of the evidence led by the parties in support of their claim and not on the basis of rent paid by the previous tenant. Thus, according to learned counsel the question as to what rent was paid by the previous tenant Sri Bhattacharya is of no relevance. It was urged by learned counsel and in my opinion quite correctly, that neither the plaintiffs evidence nor the defendant's evidence led in support of respective claims as regards to the agreed rate of monthly rent can be either accepted or rejected merely on the ground that the previous tenant Sri Bhattacharya was paying less than Rs. 240/-as monthly rent, as was mentioned in the plaintiffs affidavit filed in the house-tax assessment proceedings. The question of rent paid by the previous tenant may be relevant, if at all, only in proceedings for the determination of standard rent of the premises in respect of which there has been no negotiated settled agreed rent between the parties. It would not be of much relevance in the case when the question involved for determination is as to what is actually the agreed monthly rent settled between the parties at the time of letting out the premises. It would go without saying that such question must be determined on the consideration of the evidence led by the panics on the point.
18. Learned counsel for the opposite party had, however, urged that if previous tenant was paying Rs. 70/- plus Rs. 20/- for the amenities as monthly rent, then how the landlord could let out the premises on a monthly rent of Rs. 200/-. This contention though attractive cannot be accepted because the learned counsel could not point out any statutory prohibition in this behalf. As provided even under Section 4(2) of the U.P. Act XIII of 1972 the rent payable by the tenant for any building subsequently covered by said Act shall be such as may be agreed upon between the landlord and the tenant and it is in the absence of any agreement the rent payable by the tenant would be the standard rent which may be got determined under Section 9 of the Act.
19. Learned counsel, however, contended that if the previous tenant was paying only Rs. 90/- per month as rent etc. then how it can be expected that the defendant-tenant would have agreed to pay Rs. 300/- as monthly rent and so this would be a material circumstance for weighing the evidence led by the parties on the crucial question as to what was the agreed monthly rent. That may or may not be so, because, on account of acute dearth of residential accommodation in urban agglomerations, it is generally noticed that there is high hike in the rent of tenanted accommodations which rarely fall vacant and so whenever any accommodation falls vacant the prospective tenants offer rent which is sometimes twice or thrice or even more than what was paid by the previous tenant. Thus, the quantum of rent paid by outgoing tenant cannot be treated to be conclusive substantive evidence on the point for determining question as to what was the agreed rate of rent settled between the panics in respect of the premises in question, which has got to be determined on the consideration of evidence led by the parties on the point and keeping in mind all the material facts and circumstances relevant to said crucial issue involved for determination in the case.
20. As regards probative value of self-serving statements of a party it has been observed by the Hon'ble Supreme Court in Smt. Krishawati v. Hansraj, AIR 1974 SC 280 that:
"Previous self-serving statements by a party in other proceedings cannot be used as substantive evidence in subsequent proceedings against the party."
21. Thus a party would not be estopped from showing under what circumstances he had made the statement in earlier proceedings and to prove it to be erroneous and untrue. An admission contained in self-serving statement, especially when it was not to be taken to be conclusive so as, to estop the party pleading and showing otherwise. Learned court below will, therefore, look to the probative value of the said self-serving statement of the plaintiff in earlier house-tax assessment proceedings about the rent paid by previous tenant in respect of premises in question keeping in mind its worth and relevance, if any.
22. In the result, this revision is allowed and the impugned judgment and decree dated 20-12-1983 passed by the VIth Additional District Judge, Lucknovv is hereby set aside and he is directed to restore the case to its original number and decide it afresh on merits in accordance with the law and in the light of the observations made above and taking into consideration all facts and circumstances and the evidence on record. Parties to bear cost of this revision.
23. Parties are directed to appear before the VIth Additional District Judge, Lucknow on 20th April, 1987.