Andhra HC (Pre-Telangana)
Grandhi Padmanabham vs Rajesh Gothi on 12 December, 2001
Equivalent citations: 2002(3)ALT157, 2002 A I H C 1395, (2002) 3 ANDH LT 157
ORDER P.S. Narayana, J.
1. Heard Sri T.S. Anand the learned counsel representing the revision petitioner and Sri Vijay, the learned counsel representing the respondent.
2. The C.R.P. is filed under Section 25 of the Provincial Small Cause Courts Act, in short hereinafter called as "Act", as against the judgment and decree made in S.C. No. 55/98 on the file of Principal Junior Civil Judge at Vizianagaram. The suit filed by the revision petitioner-plaintiff for recovery of a sum of Rs. 3,456/- with subsequent interest was dismissed by an order, dated 10-11-2000, and aggrieved by the same, the present C.R.P. is filed.
3. It is the case of the revision petitioner-plaintiff that the father of the respondent-defendant was inducted as tenant in the plaint schedule shop in the year 1968 on a monthly rent of Rs. 300/- payable on first of every succeeding month and subsequent thereto, the rent was enhanced to Rs. 400/-per month and the father of the respondent-defendant died in the month of April, 1995. While, he was the tenant of the said shop and the respondent-defendant, the son of late Harasmal Ghoti has continued the tenancy of the said shop from the month of May, 1995 and the respondent-defendant had paid rents till the end of June, 1997 and thereafter he had not paid rents inspite of repeated requests and thus, he had committed wilful default in payment of rents from July onwards. It was also pleaded by the revision petitioner-plaintiff that he used to issue receipts for the rents paid by the respondent-defendant and hence, for recovery of the aforesaid arrears of rent, the suit was instituted.
4. The respondent-defendant had filed a written statement admitting the relationship of the landlord and tenant and the monthly rent of Rs. 400/-. It was further pleaded that at the time of giving the shop premises on lease, his father deposited Rs. 1,500/- by way of security with the revision petitioner-plaintiff to be returned with interest at 12% per annum at the time of vacating the premises. It was also further pleaded that the rent, if any, due for the period of two months was taken with interest @ 12% per annum and he has been paying rents regularly till the end of December, 1997 and the revision petitioner-plaintiff had not issued receipts for the amount paid towards rent for (sic. from) the month of July, 1997 and demanded the respondent-defendant to enhance the rent to Rs. 1,500/- per month and also demanded to return the lease agreement of 1968. It was also pleaded that the revision petitioner-plaintiff admitted the receipt of amount of rent till the month of December, 1997 before the elders and refused to issue receipts for the period unless the respondent-defendant executed lease deed @ Rs. 1,500/- per month to get over the provisions of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. It was also stated that thereupon the respondent-defendant issued a registered notice dated 5-2-1998 asking him to name the Bank for deposit of arrears of rent and also remitted the same for the month of January, 1998 and the revision petitioner-plaintiff had evaded to receive the registered notice and also the money order sent to him and hence, he filed R.C.C.No: 5/98 on 12-3-1998 seeking permission to deposit the agreed rent with future interest and subsequent thereto, the revision petitioner-plaintiff also filed R.C.C.No. 9/98 and also the present suit to support his case of wilful default in payment of rent for a period of six months and hence, the respondent-defendant had prayed for dismissal of the suit.
5. The revision petitioner-plaintiff had examined himself as P.W. 1 and Exs. A-1 and A-2 were marked. On behalf of the respondent-defendant, D.Ws.1 and 2 were examined and Exs. B-1 to B-11 were marked. The Court below had framed the following point for consideration:
"Whether the plaintiff is entitled to recover the suit sum from the defendant or not?"
After discussing the oral and documentary evidence at paragraph Nos. 6 to 11, the Court below had arrived at a conclusion that the revision petitioner-plaintiff is not entitled to any relief and ultimately, the suit was dismissed without costs. Aggrieved by the same, the present revision was filed by the revision petitioner-plaintiff.
6. Sri T.S. Anand, the learned Counsel representing the revision petitioner-plaintiff had strenuously contended that the very fact that there are no receipts for the relevant period clearly goes to show that the respondent-defendant had not paid rents during the relevant period. The learned Counsel also had submitted that no credence can be given to Exs. B-4 to B-10 especially Exs. B-7 and B-8. The learned Counsel also had pointed out that the respondent-defendant had not entered into the witness box and D.W. 1, brother of respondent-defendant was examined and another D.W. 2 was examined. The learned Counsel also had pointed out that the Court below had not framed the points for consideration-properly and the judgment made by the Court below also is not in accordance with law. It was also contended that the entries in Ex. B-7 are self-serving entries and there is no independent evidence even in relation to the said entries. The learned Counsel had also commented that even these entries, Ex. B-7, are definitely suspicious in nature since only entries relating to the alleged payment of rents alone had been made and by any stretch of imagination, it cannot be said that these entries are made in regular course of business. The learned Counsel also had commented about the evidence of D.W. 2 who is alleged to be one of the elders before whom the respondent-defendant had raised a dispute.
7. Sri Vijay, the learned Counsel representing the respondent-defendant had taken me through paragraph Nos. 6 to 11 of the judgment of the Court below and had drawn my attention to the relevant portions of the judgment. The learned Counsel also had contended that there is detailed discussion about the oral and documentary evidence, by which, findings had been recorded and hence, absolutely there is no error committed by the Court below in appreciating the evidence. The learned Counsel also had stated that D W. 1 was examined since he was the person concerned with and looking after the suit transaction and there is nothing unnatural in the evidence of D.W. 1 so as to disbelieve the same. The learned Counsel also had placed reliance on Section 34 of the Indian Evidence Act.
8. Heard both the Counsel and perused the material available on record. On behalf of the revision petitioner-plaintiff, as already stated supra, P.W. 1 was examined and Exs. A-1 and A-2 were marked. On behalf of the respondent-defendant, D.Ws. 1 and 2 were examined and Exs. B-1 to B-11 were marked. On the material available on record, the following points arise for consideration:
(1) Whether the revision petitioner-plaintiff is entitled to recover the amount, as prayed for in the suit?
(2) Whether Exs. B-7 and B-8 are the entries in books of account regularly kept in the course of business and whether the Court below had appreciated the same in accordance with law?
(3) Whether the Court below had framed all the points for consideration involved in the matter and whether non-framing of the points for consideration will vitiate the judgment?
(4) To what relief?
9. Point Nos. 1, 2 and 3: As far as factual matrix involved in the case is concerned, several of the facts are not in dispute at all and the dispute is whether the respondent-defendant had paid the amounts subsequent to June, 1997 also or not and whether the revision petitioner-plaintiff is entitled to recover the amount claimed in the suit. As already referred to supra, except the evidence of P.W. 1, there is no other evidence on behalf of the revision petitioner-plaintiff. Ex. A 1 is the rent receipt book for the period from 1-6-1996 to 1-7-1997 and Ex. A-2 is the copy of rent receipt, dated 1-7-1997, for a sum of Rs. 400/-. In the evidence of P.W. 1, he had deposed about Exs. A-1 and A-2 and had denied about the admission made by him before the elders that he had received rents till December, 1997. P.W. 1, no doubt, admitted in cross-examination that he is an income-tax assessee and he had not filed the ledger books or income-tax returns relating to the said period. P.W. 1 has also admitted about the filing of R.C.C.No. 5/98 and also R.C.C.No. 9/98. On behalf of the respondent-defendant D.W. 1 one of the sons of late Harasmal Ghoti, the brother of the respondent-defendant was examined on the ground that he is looking after the suit transaction and no doubt, he had deposed about his case and also all the facts and Exs. B-1 to B-11. The Court below had placed reliance on Ex. B-7 and on the strength of the entries made therein came to the conclusion that the revision petitioner-plaintiff is not entitled to the relief. The Court below also observed that apart from the oral and documentary evidence of the defendant, the plaintiff himself admitted that he is an income-tax assessee and his ledger contains the payment of rent by the defendant, but he failed to produce those two documents into the Court to show the default committed by the defendant relating to the months of July, 1997 to February, 1998. Evidently, the Court below had drawn adverse inference for non-production and had proceeded that in the absence of any evidence in this regard on behalf of the revision petitioner-plaintiff, it can be taken, that the entries in Ex. B-7 are true. However, it is pertinent to note here that almost all the entries made in Ex. B-7 are only entries relating to the payment of rents and except the evidence of D.W. 1, who is not a party to the litigation, there is no other evidence. Section 34 of the Indian Evidence Act dealing with "entries in books of account when relevant" reads as follow:
"Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability."
The illustration under Section 34 of the Indian Evidence Act reads as follows:
"A sues B for Rs. 1000/- and shows entries in his account books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient, without other evidence, to prove the debt."
From the aforesaid provisions, it is clear that though the entries are relevant, they are not sufficient without other evidence. As already referred to above, except the evidence of D.W. 1, there is no other evidence relating to Ex. B-7. D.W. 2 is said to be only a mediator. In Karri Appalamma and Ors. v. Bendalam Seetarama Murthy, 2001 (2) An.W.R. 453 (A.P.), 2001 (3) LS 299 I had an occasion to deal with the aspect of framing of necessary issues and necessary points for consideration before proceeding to record evidence in the suit under Provincial Small Causes Courts Act, 1887. No doubt, I had observed that it is mandatory to frame all necessary issues or all necessary points for consideration before proceeding to record evidence. Order XX Rule 4(1) of the Code of Civil Procedure says that the judgments of a Court of Small Causes need not contain more than the points for determination and the decision thereon. Order 50 of the Code of Civil Procedure deals with Provincial Small Cause Courts and Order 50 Rule 1 of the Code of Civil Procedure reads as follows:
"The provisions hereinafter specified shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887), or under the Berar Small Cause Courts Law, 1905 or to Courts exercising the jurisdiction of a Court of Small Causes under the said Act or Law, or to Courts in any part of India to which the said Act does not extend exercising a corresponding jurisdiction that is to say--
(a) so much of this schedule as relates to--
(i) suits excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits;
(ii) the execution of decrees against immoveable property or the interest of a partner in partnership property;
(iii) the settlement of issues; and
(b) the following rules and orders:--
Order II, Rule 1 (frame of suit);
Order X, Rule 3 (record of examination of parties);
Order XV, except so much of Rule 4 as provides for the pronouncement at once of judgment;
Order XVIII, Rules 5 to 12 (evidence) Orders XLI to XLV (appeals) Order XLVII, Rules 2, 3, 5, 6, 7, (review) Order LI.
It is, no doubt, true that the provisions relating to settlement of issues shall not extend to the Courts constituted under Provincial Small Cause Courts Act, 1887. However, this aspect had not been brought to my notice when the aforesaid judgment was delivered by me. Be that as it may, since the following systematic and methodical procedure will always result in doing substantial justice, it is always essential and desirable to frame the relevant points for consideration while deciding even a small cause suit. In Tribhovandas v. Contractor's Co., AIR 1943 Bom. 416 while dealing with the contents of Judgment in a small cause suit, it was held thus:
"Order 20 Rule 4(1) must be read along with Section 25, Provincial Small Cause Courts Act, which impliedly requires the Judge deciding a Small Cause suit to make his judgment sufficiently intelligible to enable the High Court to be satisfied that his decision is according to law. In a Small Cause Court's judgment all that is really required is that the points for determination and the decisions thereon should be so worded as to covey some indication that the Judge has applied his mind to every question of law and fact arising in the case and come to a definite conclusion on each of them. But even in Small Cause suits complicated question of law and fact are likely to arise and a mere monosyllabic answer to such a question would not be enough to enable the revising Court to surmise the reasons behind that answer. In such a case, a brief discussion of the question would be not only appropriate, but necessary. Though, no hard and fast rule can be laid down, on a reasonable interpretation of Order 20 Rule 4(1) read with Section 25, Provincial Small Cause Courts Act, it may be stated that in a Small Cause suit, on a question of fact, the Judge need not give more than a clear statement of the points which he has to decide and his decisions thereon, and if he thinks them to be sufficiently intelligible he is not bound to give his reasons for those decisions. But on a question of law, if a bare finding is not likely to indicate the reasoning by which it is arrived at, the Judge, in order to enable the High Court to see if his decision is according to law, is bound to set out so much of his reason as will make clear the road by which he reached his conclusion."
It is pertinent to note that Section 17 of the Provincial Small Cause Courts Act, 1887 deals with "application of the Code of Civil Procedure" to the Courts of Small Causes. In Mariyayee v. Ponnuswamy, AIR 1932 Madras 336 while dealing with the nature of judgment made by a Small Cause Court, it was held thus:
""If with the aid of the record, the judgment, however brief, shows that the Judge has grasped the questions for decision and has answered them, not arbitrarily but for reasons which can be readily understood, then he has complied with the provisions which regulate his procedure. As regards points raising questions of law in a small cause suit, the judgment recording simply in "the affirmative" or in "the negative" the finding on such a point, is not ordinarily a property judgment within the meaning of the Small Causes Courts Act. The actual extent of the discussion or of the reasoning, which led to the finding would depend upon the circumstances of each case."
In Dayalal Magji v. Repaka Venkayya, 1963 (1) ALT 218 it was held as follows:
"Reading Section 2(9) along with Order 20 Rule 4 C.P.C. it is clear that judgment of a Court of Small Causes shall be intelligible and shall ex facie convey that the judge had applied his mind thereto. His judgment shall be such as to enable the superior Court exercising revisional powers to be satisfied that it was in accordance with law. Further Section 3 of the Evidence Act brings out lucidly that a finding shall be based on a consideration of oral and documentary evidence and the probabilities."
In the light of the discussion of both oral and documentary evidence, the evidence adduced on both sides to prove their respective contentions appear to be insufficient and even the framing of point for consideration by the Court below is not in accordance with law.
10. Point No. 4: In the light of the foregoing discussion, I am of the considered opinion that the impugned judgment and decree made in S.C.No. 55/98 on the file of the Principal Junior Civil Judge at Vizianagaram are liable to be set aside and the matter to be remitted back to the Court below so as to enable the parties to further establish their respective contentions in this regard. Accordingly, the C.R.P. is allowed to the extent indicated above. No order as to costs.