Gauhati High Court
Piramal Kejriwal & Anr vs Radheshyam Paul & 3 Ors on 15 September, 2016
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
CRP 284/2015
1. Sri Piramal Kejriwal, son of late Madanlal Kejriwal,
2. Sri Jagadish Prasad Kejriwal, S/o. late Madanlal Kejriwal.
Both are residents of B.C. Das Road, Shantipara, Dibrugarh
Town, PO, PS and Dist: Dibrugarh, Assam.
...........Petitioners/Defendants
-Versus-
1. Sri Radheshyam Paul, S/o. Late Cjhand Mohal Paul, resident of
Cole Road, Kalibari Ward, PO, PS and Dist. Dibrugarh, Assa.
2. Smt. Rajashree Paul, D/o. Sri Radheshyam Paul.
3. Smt. Jayashree Deb, W/o. Sri Paritosh Deb, D/o. Sri
Radheshyam Paul.
4. Smt. Tanushree Verma, W/o. Late Rabindra Verma,
D/o. Sri Radheshyam Paul.
..........Respondents/Plaintiffs
For the Petitioners : Mr. G.N. Sahewalla, Sr. Adv
Ms. B. Sarma, Adv
For the Respondents : Mr. S. Dutta, Sr. Adv.
Ms. N. Modi, Adv.
BEFORE
THE HON'BLE MR. JUSTICE SUMAN SHYAM
Date of hearing : 23/08/2016
Date of judgement : 15/09/2016
CRP 284/2015- CAV Page 1 of 8
JUDGEMENT AND ORDER (CAV)
1. Heard Mr. G.N. Sahewalla, learned senior counsel assisted by Ms. B. Sarma, learned counsel representing the petitioners. Also heard Mr. S. Dutta, learned senior counsel assisted by Ms. N. Modi, learned counsel appearing for the respondents.
2. This revision petition has been preferred against the concurrent judgement and decree dated 31/03/2015 passed by the Court of Civil Judge, Dibrugarh in Title Appeal No. 40/2010 dismissing the appeal and upholding the judgement and decree dated 25/08/2012 passed by the Munsiff No.1, Dibrugarh in Title Suit No. 03/2003 decreeing the suit filed by the respondents/plaintiffs for ejectment and for recovery of arrear rent with other consequential relief.
3. The brief facts of the case is that the predecessor- in- interest of the defendants, viz. Madal Lal Khejriwal entered as a tenant under the plaintiff, Radheshyam Paul, in respect of a room measuring 30" x 12" on condition of paying rent on month to month basis. The tenancy had commenced on the strength of an agreement executed on 01/04/1973 whereby, the agreed rent was initially fixed at Rs. 250/- per month. However, subsequently, with effect from 01/01/1985, the rent was enhanced to Rs. 400/- per month. After the demise of Madal Lal Khejriwal in the year 1990, the defendants continued as tenants under the plaintiff by paying the same rent by ignoring the repeated demand made by the plaintiff for signing fresh agreement of tenancy. The defendants had even neglected to pay the monthly rent to the plaintiff since the month of January, 1997, as a result of which the plaintiff had to issue a notice on 25/09/1992 calling upon the defendants to quit the tenanted premises but the same was not followed. It was the case of the plaintiff that the defendants had become defaulter in the eye of law due to non-payment of monthly rent in respect of the suit premises since January, 1997. Besides CRP 284/2015- CAV Page 2 of 8 the above, the suit premises was in a dilapidated condition requiring urgent repair and renovation. The plaintiff had also claimed that due to extension of his family, the tenanted premises were also bonafide required by the plaintiff for his own use. On the basis of such pleadings, the plaintiff had instituted the suit for ejectment of the defendants from the suit premises and also for recovery of arrear rent of an amount of Rs. 14,400/-.
4. On receipt of summons, the defendant nos. 1 and 2 had entered appearance and contested the suit while the defendant No. 3 choose not to appear. The defendant nos. 1 and 2 filed joint written statement denying the allegations made by the plaintiff and on the contrary, gave an account of the manner in which the rent was paid by them to the plaintiff from time to time after adjusting the advance amount which was earlier taken by the plaintiff by executing a Promissory Note. It is the pleaded case of the defendants that in the month of December, 1984, the defendant no.2 and his father enhanced the rent to Rs. 400/- per month on being requested by the plaintiff and thereafter, continued to pay the rent without any default until the month of August, 1998. However, when the defendants offered the rent for the month of September, 1998 to the plaintiff, he had refused to accept the same, as a result of which the rent for the month of September, 1998 was sent by Money Order No. 239 dated 07/10/1998. When the same was also refused by the plaintiff, the defendants had no other option but to deposit the rent before the Court by filing Misc. N.J. cases with effect from the month of September, 1998. Thereafter, the rents for the months of October, 1998 was also tendered to the plaintiff but on being refused, the same was deposited before the Court and in this manner, the rent up to the month of March, 2006 have been deposited in the court by filing N.J. cases. The defendants have also denied the plea taken by the plaintiffs as regards his bonafide requirement of the tenanted premises.
5. Based on the pleadings of the parties, the learned Court below had framed the following issues :-
CRP 284/2015- CAV Page 3 of 8
"1) Whether there is cause of action for the suit?
2) Whether the suit is maintainable in law and facts ?
3) Whether the suit is bad for non-joinder of necessary parties?
4) Whether the defendants are defaulters to pay the rent of the suit premises
to the plaintiff ?
5) Whether the suit premise is bona-fide required by the plaintiff?
6) Whether the plaintiff is entitled to decree as prayed for?
7) Whether the parties are entitled to any relief or reliefs?
6. Both the parties led evidence during the trial. On conclusion of the trial, the trial Court had decreed the suit filed by the plaintiff by granting a decree of ejectment and for recovery of arrear rent. The Title Appeal filed by the defendants/tenants also came to be dismissed by the lower Appellate Court which had led to the filing of the instant revision petition invoking the jurisdiction of this court under section 115 of the CPC.
7. Mr. Sahewalla, learned senior counsel appearing for the petitioner submits that in order to establish the fact that the defendants/tenants had been depositing the rent in the Court with effect from the month of September, 1998, records of N.J. cases were duly called for. As regards the payment of rent with effect from January, 1997 till August, 1998, the Books of Account maintained by the defendants in their ordinary course of business had been exhibited before the Trial Court. However, on an erroneous interpretation of the provision of section 34 of the Evidence Act, 1872, the Court below had refused to consider the said evidence on the ground that the same was not admissible in the eye of law. While admitting that the entries in the Books of Account would not alone be sufficient to establish that the rent had been duly paid for the said period, Mr Sahewalla submits that there was sufficient independent evidence available on record to prove that the rent had been duly paid by the defendants but the same had been completely ignored by the court below. Mr. Sahewalla submits that in the present CRP 284/2015- CAV Page 4 of 8 case the evidence adduced by the defendants in support of the aforesaid plea in the form of DWs 1, 2, 3 and 4 has not at all been considered by the Court below while deciding the issue No. 4 holding the defendants as defaulters. In such view of the matter, according to Mr. Sahewalla, this is a case for remand as there has not been proper appreciation of the evidence available on record.
8. Mr. Sahewalla has further submitted that during the pendency of the proceeding before the Court below, the plaintiff has transferred the suit property in favour of his daughters. As such, in the absence of fresh grounds brought on record, the plea of bona-fide requirement also did not survive for consideration by the lower Appellate Court.
9. Opposing the aforesaid submissions made on behalf of the petitioners, Mr. Dutta, learned senior counsel for the respondents has argued that the entries made in the Books of Account are of no value in view of the mandate of Section 34 of the Evidence Act,1872 and therefore, the same has been rightly rejected by the Court below while recording findings as regards issue number 4. Mr. Dutta has placed reliance upon the decisions of this Court in the case of Chadiram Deka Vs. Jamini Kant Deka reported in AIR 1952 Assam 92 (1) as well as another decision in the case of Ajit Chandra Bagchi and ors vs M/s Harishpur Tea Company (P) Ltd reported in AIR 1991 Gauhati, 92 to contend that mere entries in the books of account not sufficient to prove that rent had been duly paid to the plaintiff.
10. I have bestowed my anxious consideration to the submissions made by and on behalf of the parties and have also meticulously scrutinised the records.
11. Since the tenanted premises had been admittedly, transferred by the original plaintiff in favour of his daughters during the pendency of the Title Appeal, hence, Mr. Dutta, has fairly submitted that the said issue has to be now decided afresh by considering the bonafide requirement of the daughters of the plaintiffs. Such being the CRP 284/2015- CAV Page 5 of 8 position, it is apparent that the core question that would govern the outcome of the revision petition would the answer to the question regarding validity of the findings recorded by the Court below as regards issue no.4.
12. From a scrutiny of the record it can be seen that over and above producing the Books of Account, the defendants had also examined Shri Om Prakash Saharia (DW-3) as a witness so as to prove that the entries made in the Books of Account. That apart, DW-1 and 2 have also been examined by the defendants in support of their case that the rent has been paid to the landlord/ plaintiff for the period of January 1997 to August 1998.
13. In view of the provision of section 34 of the Evidence Act,1872 the entries made in the Books of Account alone would not be sufficient evidence so as to permit the court to record a finding of fact that the rent had been paid for the said period. But the entires made in books of account would be admissible evidence and would have corroborative value. The entries in the books of account ,if regularly kept in the course of business, would be relevant if they refer to a matter into which the court has to inquire. Therefore, there was no valid reason for the court below the altogether discards the books of account from the purview of consideration. However, it must also be borne in mind that the entries made in the books of account would be admissible in evidence only if it is proved that such account had been kept regularly in course of business.
14. Once the plaintiff has succeeded in leading evidence to prima facie establish the plea that the defendants were defaulters, burden would shift upon the defendants to prove that rent had been duly paid to the landlord. As has been noted above, in the present case, over and above, producing the books of account, the defendants had examined witnesses DW-1, 2, 3 and 4 in support of their case that rent had been paid for the period from January 1997 to August 1998. However, from a reading of the impugned judgment and order passed by the first appellate court it is seen that the learned Court below, on one hand had declined to admit in evidence, the "Books of Account" by the CRP 284/2015- CAV Page 6 of 8 citing the provisions of Section 34 of the Evidence Act and on the other hand the testimony of remaining witnesses, more particularly, DW-3 had been discarded on the ground that the "Books of Accounts itself are kept out of legal consideration". In the result, the evidence adduced by the defendants in support of their contention that the rent in respect of the tenanted premises had been regularly paid by them since the month of January, 1997 till August, 1998, did not receive due appreciation from the Court below while recording the findings in respect of issue no. 4.What probative value such evidence would carry in the ultimate analysis is a different matter altogether, but since the first appellate court is the final court of fact that can also decide issues of law, it was incumbent upon the court below to consider the evidence adduced by the defendants while recording findings in respect of issue number 4. The same not having been done, I am of the opinion that the findings recorded by the Court below as regards issue no. 4 is vitiated by perversity.
15. Since the suit of the plaintiff has been decreed primarily on the ground that the defendants have become defaulters, hence, for the reasons stated above, the impugned judgement and decree cannot be sustained in the eye of law and the same is accordingly set aside. However, having regard to the facts and circumstances of the case, the matter is hereby remanded for a fresh decision of the appeal by the First Appellate Court on a proper appreciation of the evidence available on record, in the light of observations made above.
16. Send back the LCR expeditiously. Both parties are directed to appear before the first appellate Court on 05/10/2016.
17. Considering the fact that the suit is of the year 2003, the lower Appellate Court is requested to make an attempt to decide the appeal afresh, as expeditiously as possible, preferably within a period of 3 (three) months from the date of receipt of the records, if necessary, by holding day to day hearing in the matter.
CRP 284/2015- CAV Page 7 of 8
Having regard to the facts and circumstances of the case, parties to bear their own cost.
JUDGE Sukhamay CRP 284/2015- CAV Page 8 of 8