Madras High Court
Thangavelu vs Ramadoss on 19 November, 1996
Equivalent citations: (1997)1MLJ246
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
ORDER AR. Lakshmanan, J.
1. This civil revision petition is directed against the order of the Appellate Authority made in R.C.A. No. 36 of 1989, dated 2.4.1991, confirming the order of the District Munsif, Tiruvarur in R.C.O.P. No. 28 of 1980, dated 4.10.1989. The respondent, Ramadoss was the petitioner in R.C.O.P. No. 28 of 1980 before the Rent Controller, Tiruvarur. The revision petitioner was the respondent in the said R.C.O.P. Ramadoss contended in that petition that the revision petitioner Thangavelu was a tenant of a building being premises, bearing door Nos. 24-A and 25 in Ward II, Block III, Thanjavur Road, Tiruvarur and situate in T.S. No. 593 of an extent of 422 and 1/4 sq.ft. under one Ramanathan Chettiar of Devakottai, on a monthly rent of Rs. 7 and that he, Ramadoss had purchased the same along with some other items from that Ramanathan Chettiar by a sale deed, dated 7.3.1980. The prayer for eviction was founded on Section 10(2)(i) and (vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act.) It was alleged that Ramadoss had a notice issued to the petitioner herein on 12.6.1980 to which a reply dated 24.6.1980 had been caused to be issued by Thangavelu disputing the claim. In his petition for eviction, after tracing the title of his vendor, Ramanathan Chettiar, Ramadoss alleged, among others as follows:
...The respondent's father Kuppuswamy Chettiar took the undermentioned building on a monthly rent of Rs. 7 from Ramanathan Chettiar. The petitioner learns that Kuppuswamy Chettiar has executed a lease deed in favour of Ramanathan Chettiar at the time of taking the building on lease. The lease deed is missing and will be filed after it is traced. The respondent paid rents to Ramanathan Chettiar for some years, i.e., till about 1974 and later defaulted taking advantage of the fact that Ramanathan Chettiar is a permanent resident of Devakottai. After the death of Kuppuswamy Chettiar the respondent (his son) continues as a tenant on the same terms and conditions. The respondent has not paid rent to Ramanathan Chettiar from 1975. The default is wilful and mala fide.
In his counter-statement the petitioner herein contended in the main as follows:
It is false to say that this respondent's father took the property on lease from Ramanathan Chettiar and that this respondent is not a tenant under the petitioner or his vendor or any other Ramanathan Chettiar....
2. At the time of hearing before the Rent Controller, Ramadoss, the petitioner was examined himself as R.W. 1. Masilamani Thevar and Ramanathan Chettiar were examined as P.Ws. 2 and 3 respectively. Masilamani was claimed to have been an employee of P.W. 3, the vendor, Ramanathan. However, the lease deed to which there was a reference made in the eviction petition was not produced before the court. Ramadoss, the petitioner did not depose as to whether he made any attempt to trace the same and with what result. In fact, he admitted candidly that he did not know anything about the old documents and he kept discretly silent on that aspect. In his chief-examination, he stated "Account Books are Exs. A-54 to A-60. Entry reading Thanjavur Salai house rent will refer to rent paid by the respondent's father...." In his cross examination, he said "At the time of purchase door Nos. 23, 24, 24-A, 25-A, 25-A.1 and 25-A.2 were purchased...." In Ex. A-2, door No. 24 is not there. I do not know to which door number 24-A relates...." Proceeding further, he stated "I cannot say to which building No. 24-A was given...." He proceeds to say "It is true to say that the father of the respondent was a tenant under Ramanathan Chettiar...." I know Kuppuswamy Chettiar. He died in or about 1977. Kuppuswamy Chettiar's father's name was Angappa Chettiar. In Account books, Exs. A-54 to A-60, the name of Kuppuswamy Chettiar is not there. Receipt of rent for door Nos. 24-A and 25 are not shown....
3. Immediately, he candidly admitted as follows:
I have not seen the lease deed executed by Kuppuswamy Chettiar. Ramanathan Chettiar (It must be his Vendor) did not give it to me....
4. Masilamani Thever, P.W. 2 in his deposition stated in the main the following:
He was 74 years old (in 1989). He was employed as Accountant. He worked from his age of 15 until the year 1970. Accounts which have gone to Income tax Department were there.... Kuppuswamy Chettiar in Exs. A-54 to A-60 is father of one called Thangavelu. That Kuppuswamy Chettiar, has paid rent as tenant. Kuppuswamy Chettiar mentioned in page 3 of Ex. A-60 is the father of Thangavelu. Kuppusamy Naciker came in 1940. Kuppusamy Chettiar came four years later. Kuppusamy Chettiar was paying a monthly rent of Rs. 7 till 1970.
5. He stated in his cross examination, "In Exs. A-54 to A-60, it is not found stated as, A. Kuppuswamy Chettiar or as rent for door Nos. 24-A, 25. Kuppuswamy Chettiar was a tenant. There is a lease deed from Kuppuswamy Chettiar."
6. Ramanathan Chettiar, the vendor was examined as P.W.3. In the main he stated, "Door No. 24-A was given to Kuppuswamy Chettiar. Municipality has sub divided doorNos.24 and 25. Respondents came only for paying rent." In his cross-examination, he stated "Thangavelu did not agree with me directly to take on lease.... We took in auction door Nos. 19 to 25. At the time of auction we took seven houses in auction. The same door numbers subsist till date. Door No. 24-A is not in sale certificate. In Exs. A-54 to A-60 it has not been mentioned either as A. Kuppuswamy Chettiar or as rent for door Nos. 24-A and 25 buildings. But it is mentioned as Thanjavur Road, Kuppuswamy Chettiar. There is a lease deed for Kuppuswamy Chettiar. It has not been filed.... Kuppuswamy Chettiar came in as a tenant only under me.... I would have taken an advance at the time the lease deed came into existence. But that was not entered in the accounts. I do not have with me any Account Books about the details of advance received...."
7. The Rent Controller granted the prayer of Ramadoss and the Rent Control Appellate Authority, Nagapattinam, dismissed the appeal in R.C.A. No. 36 of 1989 filed by Thangavelu, the revision petitioner herein by his judgment, dated 2.4.1991.
8. In this state of record, Mr. S. Gopalaratnam, learned Senior Counsel appearing for the revision petitioner, Thangavelu, submits that in the face of the assertion in the petition for eviction and the evidence of P.Ws. 2 and 3, about the existence of an alleged lease deed and its admitted non-production, the Rent Controller and the Appellate Authority ought to have dismissed the prayer of Ramadoss without a second look.
9. He drew my attention to Section 91 of the Indian Evidence Act and the latest decision of the Supreme Court in Tamil Nadu Electricity Board v. Raju Reddiar . He also invited my attention to the following observation of His Lordship G.B. Pattanaik, J. occurring at page No. 196:
Once a contract is reduced to writing, by operation of Section 91 of the Evidence Act it is not open to any of the parties to seek to prove the terms of the contract with reference to some oral or other documentary evidence to find out the intention of the parties....
He further contended that the suppression of the alleged lease deed, from the evidence let in before the Court, notwithstanding the pleading and the evidence of P.Ws. 2 and 3, is a serious matter to have been taken not of by the Rent Controller and the Appellate Authority, who according to him, have not at all touched upon this aspect of the case, learned Senior Counsel further argues that the suppression must be due to a deliberate decision on behalf of the petitioner, Ramadoss and consequently oversea adverse inference ought to have been drawn against the petitioner seeking eviction. With regard to the Account books on which reliance was sought to be placed on behalf of the petitioner, Ramadoss, Mr. Gopalarathnam, learned Senior Counsel contends that they were entirely inadmissible in evidence, besides not proving in any way the alleged case of letting on lease of the property under consideration. He contends that once evidence as to the terms of the grant or disposition of property is excluded by the terms of Section 91 of the Evidence Act, except the document itself, the entries in Exs. A-56 to A-60 cannot have been at all looked into by the Rent Controller and the Appellate Authority. He further contends that the entries relied on have not all been proved by either examining their writer or at least some one who could identify the writer and prove the writing under consideration and therefore they have to be excluded.... To top of it all, learned Senior Counsel says that it is a matter of admission by all the witnesses that the entries by themselves make no reference either to the property under consideration or the alleged tenant, it is merely stated to be 'Thanjavur Road, Kuppuswamy Chettiar.' His submission is, that in the absence of any particular reference to either the door number of the building or even an accurate mention of the name of the alleged tenant, as it was known to the alleged landlord these entries were inadmissible in evidence. Learned Senior Counsel, Mr. Gopalaratnam, also drew my attention to Exs. B-18 to B-21, whereunder the Thyagaraswamy Devastanam, has asserted title to the property under consideration as early as in 1975, long before the purchase by Ramadoss in 1980 and contended that the orders were made by the Rent Controller, Tiruvarur in the said R.C.O.P. as also by the Rent Control Appellate Authority, Nagapattinam in the said R.C.A. are liable to be reversed by this Court under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.... Mr. Gopalaratnam, learned senior counsel for the petitioner also cited the decision of the Privy Council reported in Judah v. Isolyne Bose A.I.R. 1945 P.C. 174, for the proposition 'proof of a document is not proof of its contents." He also drew my attention to a decision rendered by me while sitting with my learned brother Abdul Hadi, J. reported in K. Sengodan v. Dharmalingam , wherein we have referred to the decision of the Privy Council and another decision of the Honourable Supreme Court of India. He also took me through the following passage from the judgment of a Division Bench of this Court reported in Mathildasice v. Fritzgaebele A.I.R. 1926 Mad. 955, occurring at page 957 column No. 1:
There is no doubt that merely putting forward accounts is of no use whatever. They must be supported by some other evidence which the Court believes. All that the plaintiff says as P.W. 1 is that Ex. M. is the cash account from 1908 to 1915 kept by his agent Bosen. Ex. N. is the crop account from 1908 to 1917 kept by Bosen and continued by Ramdhoni. Ex. O. is the continuation of Exs. M. and N. Exs. P and Q are at the accounts maintained in his (Plaintiff's) office at Pondicherry, under the control of his accountant, That statement to my mind is totally insufficient to afford the slightest corroboration of the accounts which the plaintiff liberally threw at the head of the court....
As said in Kundanmal v. Kashibai I.L.R. 26 Bom. 363, it is for the party who puts forward the accounts to explain them and support them in such a way as to convince the Judge that there is such a probability of their accuracy as to make it reasonable for a prudent man to accept them. It has been laid down over and over again that a mere account book without more moes not prove anything else. Learned Senior Counsel also drew my attention to the decision rendered by my learned brother Srinivasan, J. (as he then was) in Deluxe Road Lines v. S.K. Palanichetti (1992) 1 L.W. 262.
10. Mr. R. Alagar, learned senior counsel appearing for the respondent Ramadoss, contended that the bar of Section 91 of the Indian Evidence Act, notwithstanding his client was entitled to let in evidence to prove the existence of relationship of landlord and the tenant the existence of relationship of landlord and the tenant between the parties. He cited a Division Bench decision of this Court reported in Chavali Subbamma alias Subbarayadu and Ors. v. Tulluru Venkatarayudu and Ors. 28 M.L.J. 361, for the said purpose. The said decision was cited before me for the proposition that oral evidence is admissible to prove that the relationship of landlord and tenant exists between the parties though there is a rental agreement in writing which is inadmissible in evidence but the terms of the tenancy cannot be so proved. When it is shown that the person in possession, before the defendant was a tenant of the plaintiffs at one time, it for him to show when that tenancy ceased and possession became adverse. His further contention was that the account books Exs. A-54 to A-60 have been proved by the witnesses and since their evidence has been accepted by the Rent Controller and the Appellate Authority, there was no case made out for interference by me. Learned Senior Counsel contended also that questions have been put to the witnesses in the cross examination concerning the account books and that therefore it is not open to the petitioner to seek to have the Account books excluded. He also cited the decision of the Supreme Court in Ram Janki Devi v. Juggilal Kamlapat and referred to the following passage occurring at page 2555.
First the account books were shown in cross-examination of Padampat Singhania and questions were asked on the same. It is not open to the appellant to complain of lack of proof of account books, when documents are shown to witness in cross-examination....
Mr. R. Alagar, learned senior Counsel appearing for the respondent after referring to Section 34 of the Evidence Act further contended that what is necessary to be produced is that the Account Books are regularly kept and in the instant case not only the Accountant was examined but also the Principal/Owner Packriswamy was examined. He also cited the decision reported in Ram Janki Devi v. Juggilal Kamlapat , wherein it has been held as follows:
(B) Evidence Act, (1872), Section 34: Book of Account must be held to have been proved even in the absence of its writer on proof of its proper, maintaining and keeping and of impossibility of arranging presence of its writer....
K. Gopal Pillai v. Gopala Pillai A.I.R. 1957 T & C. 184, in which it has been held as follows:
The effect of Section 34 is that a mere entry in an account book by itself is not evidence of any liability. It cannot be held that under Section 34 plaintiff alone is not competent to prove the accounts when the account on the face of it, does not create any suspicion and is seen to be regularly kept. In such a case merely because the writer of the account is not examined the plaintiff cannot be non-suited. When most of the items claimed by the plaintiff are shown to be real by other independent evidence there is no meaning in saying that each entry should be further corroborated apart from the evidence of the plaintiff himself T.N.S. Firm v. Muhammad Hussain A.I.R. 1933 Mad. 756.
Narain Das v. Firm Ghasi Ram A.I.R. 1938 All. 353, in which it has been held as follows:
Wherein in a suit the plaintiff produces books of account and a witness on his behalf gives evidence in support of the entries and the defendant does not consider it necessary to cross-examine the witness as regards his personal knowledge of the facts he is stating the evidence given by the witness should be interpreted in the manner most favourable to the plaintiff and is therefore sufficient corroboration of the entries. and Halmukand v. Jagan Nath , wherein it was held as follows:
Section 34 of the Evidence Act does not require any particular form of corroborative evidence, and where in a suit the plaintiff produces books of accounts and a witness on his behalf gives evidence in support of the entries and there is no cross examination of the witness with respect to his personal knowledge of the facts stated that is sufficient corroboration....
11. I have given my anxious consideration to the submissions made by learned senior counsel appearing on either side and I have also perused the records. I am fully satisfied that the decisions rendered by the authorities below cannot be allowed to stand. For a petitioner seeking to evict a person, who is in occupation of a premises, the petitioner will have to establish his rights to the relief. He must show that the occupant is a tenant and he, the petitioner is his landlord. He must also establish that the occupant is a tenant and he, the petitioner is receiving monthly rent from him. In the instant case, the petitioner came forward with the assertion that there was a lease deed which would be produced later. That this assertion was not true is borne out by his admission that 'he had not seen the lease deed executed by Kuppusamy Chettiar. Ramanathan Chettiar did not give it to me. I have already extracted the said passage. If the petitioner had not even seen the alleged lease deed, the promise made by him in his petition for eviction that he will file it after it is traded, must be a deliberate untrue statement. I am at present, no concerning myself with the falsity of the pleading What I am looking at is, whether the petitioner has made out his claim to be a landlord of the tenant, the respondent. In my considered view, he has not.
12. I have already extracted the decision of His Lordship Nanawatti, J. in Tamil Nadu Electricity Board v. Raju Chettiar , more particularly the passage in page 196., to which my attention was drawn by learned Senior Counsel. However, even in the view that I can still apply the decision reported in Chavali Subbamma alias Subbarayudu v. Tulluru Venkatarayudu 28 M.L.J. 361 : A.I.R. 1916 Mad. 623, I find that I cannot hold that the respondent has proved the existence of the relationship of landlord and the tenant in the instant case. It is not necessary to refer once again to the evidence in this case, details of which I have extracted above. It has to be admitted by the respondent that the account books, Exs. A-54 to A-60 do not anywhere state that it was the father of the petitioner that remitted the monthly rent in respect of the property involved in this petition. The witnesses examined on the side of the petitioner, viz., P.Ws. 2 and 3 candidly admit the said fact. In fact P.W. 3, the vendor has stated 'In Exs. A-54 to A-60 it has not been recorded as rent received for door Nos. 24-A and 25 or from Kuppuswamy Chettiar. The entry reads only as Thanjavur Road, Kuppuswamy Chettiar.
13. I am clearly of the opinion that the authorities below have entirely ignored the vital aspects of the matters in issue in arriving at their conclusions in favour of the respondent. When I ask myself the question, why was the lease deed, if it existed suppressed? I am led to think that the alleged lease deed is perhaps only a myth invented for the case.
14. I therefore, allow this civil revision petition and dismiss the petition for eviction made in R.C.O.P. No. 20 of 1980, dated 4.10.1989. However, there will be no orders as to costs.