Calcutta High Court (Appellete Side)
Golam Rasul vs Gafooran Bibi on 1 September, 2011
Author: Subhro Kamal Mukherjee
Bench: Subhro Kamal Mukherjee
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Subhro Kamal Mukherjee
And
The Hon'ble Mr. Justice Mrinal Kanti Sinha
F.M.A. 50 of 1992
Golam Rasul
Versus
Gafooran Bibi
For the appellants: Mr. Jiban Ratan Chatterjee,
Mr. Sanjay Bhattacharya.
For the respondents: Mr. Shiba Prasad Bhattacharya.
Judgment on: September 1, 2011.
SUBHRO KAMAL MUKHERJEE, J.
This is an appeal against judgment and order dated August 3, 1991 passed by the learned Judge, Fifth Bench, City Civil Court at Calcutta in Misc. Case No. 484 of 1986.
By the order impugned, the learned judge allowed an application for police help and directed the decree holder to deposit the cost of police help for executing the decree.
The decree holder, who was the respondent no. 1 in this appeal, filed Ejectment Suit No. 698 of 1984 against one Abdul Rahim. In the plaint, Abdul Rahim was described as the tenant in respect of the suit premises.
The learned trial judge decreed the said suit ex parte. The said decree for eviction was put to execution. The execution case was registered as Ejectment Execution Case No. 64 of 1986.
The bailiff of the executing court went to the suit premises to deliver possession in favour of the decree holder. The bailiff was resisted by this appellant.
The decree holder, namely, Gafooran Bibi, filed an application for police help. In the application, it was stated that the resistance was offered by this appellant, who was described as the agent of the judgment debtor. Nevertheless, this appellant was not made a party in the application for police help.
The application for police help was allowed ex parte on September 20, 1986.
This appellant moved an application under Order XXI, rule 106(3) of the Code of Civil Procedure for recalling of the said ex parte order granting police help on the ground that no notice of the application for police help was served on him. It was that this appellant was a tenant in the suit premises and residing there with the members of his family. The decree holder issued one rent receipt at the time of his induction, but, subsequently, refused to issue rent receipts to avoid enhancement of municipal corporation rates and taxes.
The learned judge in the executing court allowed the prayer of this appellant and recalled the order for police help.
Md. Ashfaque Ahmed, the son of the decree holder, deposed as petitioner's witness no. 1. He, candidly, conceded before the learned judge in the executing court that he had issued a rent receipt to this appellant for the month of May 1975, at the instance of the judgment debtor, to enable this appellant to obtain a ration card. Nevertheless, he stated that there was no transaction of money between the decree holder and this appellant nor there was any actual creation of tenancy in favour of this appellant. The rent receipt was issued only for one month for the purpose of helping this appellant to obtain a ration card.
The said witness drew the attention of the learned judge in the executing court to a purported endorsement in Urdu at the back of the counter foil of the rent receipt. He explained that the judgment debtor made an endorsement that he received the disputed rent receipt for getting the ration card of this appellant.
As has been held by the Supreme Court of India in Idandas vs. Anant Ramchandra Phadka (dead) by L.Rs. reported in A.I.R. 1982 S.C. 127 that the entry in the counter foil being an admission in favour of the landlord, it was not admissible against the tenant.
Neither the learned judge in the executing court knew Urdu nor we know Urdu. No official translation of such writing was filed, nor the alleged maker of such endorsement, namely, Abdul Rahim, was produced before the executing court to prove such endorsement.
The learned judge in the executing court, however, allowed the application for police help on the ground that this appellant did not take steps for obtaining the rent receipt from the landlady or initiated any proceeding under Section 25 of the West Bengal Premises Tenancy Act, 1956 on the failure of the landlady to grant rent receipt. The learned judge in the executing court noticed that the appellant could not be able to prove that she had paid rent for subsequent months nor she had tendered rent to the landlady by money order.
The rent receipt was already on record as exhibit "B". The rent receipt has been granted in relation to the suit premises on behalf of the decree holder in favour of this appellant.
We are unable to accept the oral evidence of the decree holder explaining the rent receipt in view of clear bar under Sections 91 and 92 of the Evidence Act, 1872. Under Sections 91 and 92 of the said Act, a written document is the sole repository of the transaction between the parties. The best evidence about the contents of a document is the document itself and it is the production of the document that is required by Section 91 in proof of its contents.
Oral evidence may guide the court in ascertaining the true intention of the parties in tendering of extrinsic evidence to add or contradict in surrounding circumstances. But, when the written document was clear, the intention of the parties is to be gathered from the terms of the said document.
The appellant has produced exhibit "B", being the rent receipt dated June 25, 1975, and proved payment of rent in relation to the property in suit for one month. If he fails to prove subsequent payment of rent, he is liable to be evicted on the ground of default in payment of rent, but cannot be evicted by executing the decree passed against a third party.
The initiation of proceeding under Section 25 of the West Bengal Premises Tenancy Act, 1956 is not mandatory. In any event, non-initiation of a proceeding under Section 25 of the said Act cannot make the bona fide claim of tenancy nugatory, when, admittedly, the tenant possessed at least one rent receipt issued by the owner at the time of induction of the tenant. Moreover, the appellant alleged that he regularly paid rent to the landlady, but she declined to issue receipts to avoid enhancement of municipal rates and taxes.
We, therefore, set aside the order impugned in this appeal and reject the application for police help. In the meantime, the original tenant is dead and the heirs and legal representatives have been substituted in this appeal.
We hold that the appellant and, on his death, his heirs are tenants in relation to the property in suit.
We are informed that, during the pendency of this appeal, the substituted appellants were dispossessed in execution of the decree.
It will be open to the substituted appellants to approach the executing court for getting back their possession and, if approached, the learned judge in the executing court shall consider the prayer of the appellants in accordance with law.
With the aforesaid observations, the appeal stands allowed without any order as to costs.
Xerox certified copy of this order, if applied for, will be made available to the applicant within a week from the date of putting in the requisites.
(Subhro Kamal Mukherjee, J.) Mrinal Kanti Sinha, J.
I agree.
( Mrinal Kanti Sinha, J. )