Calcutta High Court
Atmaram Kanoria vs R.H. Wright And Ors. on 12 September, 1988
Equivalent citations: (1989)1CALLT285(HC)
JUDGMENT L.M. Ghosh, J.
1. Heard the substance of the matter involved in this suit out of which this award arisen is very short, there has been some complexity and swelling of the record because of the manner in which the case conducted on behalf of the parties and the manner in which the Courts below addressed themselves to the issues involved.
2. Mr. Atmaram Kanoria, the defendant No. 1 in Title Suit No. 73 of 1976, out of which the present appeal arises, had filed Title Suit No. 136 of 1974 for ejectment against the plaintiff in the present Suit. That Suit was decreed ex parte against the present plaintiff, Mr. R. H. Wright. Then on 26.4.76, Mr. R. H. Wright filed Title Suit No. 73 of 1976 before the 2nd Subordinate Judge, Alipore, against Mr. Atmaram Kanoria and two others. Balai Chandra Law and Sugan Chand Saraogi were those two others. The plaintiff, Mr. R. H. Wright, prayed for the following reliefs : for a declaration that the plaintiff was a tenant in respect of the Suit premises, for declaration who was the landlord of the plaintiff, for declaration of the sums were payable by the plaintiff to his landlord in respect of the Suit premises for a certain period, for declaration that the decree passed in Title Suit No. 136 of 1974 to the 2nd Subordinate Judge, Alipore, was vague, invalid, inoperative and not executable and for recovery of possession. The learned Subordinate Judge, who tried the Suit, dismissed the same by a judgment and decree, dated 30.5.83. There was an appeal to the Appellate Court. The learned Additional District Judge, 14th Court, Alipore, who heard the appeal, allowed the appeal and after setting aside the judgment and the decree of the learned Subordinate Judge, decreed the plaintiff's Suit on contest against the defendant No. 1 and ex parte -without costs against the rest. The plaintiff was declared still a tenant in respect of the Suit premises. It was also declared that the defendant No. 3, Sugan Chand Saraogi, was the landlord of the plaintiff appellant in respect of the Suit premises. The decree passed in Title Suit No. 136 of 1974 was also declared inoperative and not executable and the plaintiff was given the relief of recovery of possession. The plaintiff was also given a decree for damages, the actual amount of which was to be ascertained in a subsequent proceeding.
3. Against the judgment and decree of the learned First Appellate Court, the Second Appeal has been preferred.
4. It is not disputed that the present plaintiff was a monthly tenant under the defendant No. 2, Balai Chandra Law in respect of a certain property, either 14, Ballygunge Park or 14, Ballygunge Park Road. The defendant No. 2 intimated sometimes in 1972 that he had granted a lease for 75 years in favour of the defendant No. 3, Sugan Chand. On such intimation, the plaintiff paid rent to the defendant No. 3 and the latter accepted the same on different dates. On the 17th of May, 1974, the plaintiff appellant received a letter, dated 18.2.74 from the defendant No. 2, instructing the plaintiff to pay rent to the defendant No. 1 with effect from 1.10.73. In that letter, it was stated by the defendant! No. 2 that he had granted a lease in respect of ,the?' property for a period of 74 years in favour of the defendant No. 1. As the plaintiff was not sure about the real position, he sought for same clarifications from the defendant No. 2 with regard to the position of the defendant No. 3. Subsequently also, as alleged by the plaintiff, he wrote letter to the defendant No. 2, asking for clarifications. The plaintiff states that he started depositing rents with the Rent Controller from the month of December, 1974. Then on 15th of April, 1976 at about 8.30 A.M., one person claiming to be a Bailiff, of the Court came to the spot. According to the plaintiff, the Bailiff was accompanied by five police personnels and about 100 turbulent anti-social elements. During the absence of the plaintiff, it is alleged, the plaintiff's wife was assaulted and the furniture were thrown away. The plaintiff returned at about 10.30 A.M. and he also manhandled. The plaintiff rushed to the Court and prayed for stay of the execution decree in Title Suit No. 136 of 1974, but the prayer was rejected and the persons took forcible possession on the same date, that is the 15th of April, 1976. Now plaintiff states that on enquiry, he came to learn that the defendant No. 1 filed Title Suit No. 136 of 1974 and obtained an ex parte decree on 6.6.76, without service of summons. But, according to the plaintiff, there was no relationship of land and tenant between him and the defendant No. 1. Their further case of the plaintiff is that he was a tenant in respect of 14, Ballygunge Park Road, and was never a tenant in respect of 14, Ballgunge Park. The main contention of the plaintiff is : it is submitted that the decree for 14, Ballygunge Park could not be executed for evicting him from 14, Ballygunge Park Road. On this allegation, Title Suit No. 73 is founded.
5. The case- of the defendant No. 1, the only contesting defendant, has been that the plaintiff was duly informed by the defendant No. 2 that the said defendant No. 2 had granted a release in respect of the Suit premises in his favour for 74 years. It has also been the case of the defendant No. 1 that the plaintiff was fully aware of the proceeding of Title Suit No. 136 of 1974, but deliberately remains silent only to prolong the proceeding of the Suit execution. It is claimed that the summons of the Suit and the notice of execution were duly served. Sugan Chand, the defendant No. 3, it is said, surrendered his tenancy in favour of Balai Ch. Law and the latter executed a Deed of lease, dated 1.10.73 in favour of the defendant No. 1 for 74 years. It is strongly urged that before the termination of the tenancy the plaintiff was a tenant in respect of premises No. 14, Ballygunge Park, and not Ballygunge Park Road.
6. As already mentioned, the learnt Trial Court dismissed the Suit but the learned Appellate Court allowed the appeal and decreed the Suit.
7. Mr. Bose, the learned Counsel appearing for the appellant in the Second Appeal, has at the very outset taken a preliminary point that the First Appeal was destined to fail, because the defendant No. 3, Sugan Chand, was dead even when the appeal was preferred. Indeed, it is borne out by the record that Sugan Chand was dead when the First Appeal was filed. On 12.2.88 the appellant in the Second Appeal filed a petition for recording that Sugan Chand Saraogi was dead. In paragraph 9 of the petition, it is stated that the said Sugan Chand died on or about 9th of January, 1978. This is a statement on Affidavit. This Court by its Order, dated 31.3.88 directed that the name of Sugan Chand, who appeared as appellant No. 2 in the Second Appeal, be deleted as he was dead. There cannot be any doubt that Sugan Chand was dead when the First Appeal was preferred. Mr. Bose has contended that on this preliminary point itself, the judgment and the decree of the First Appellate Court should be set aside. Mr. Chakrabarty the learned Counsel for the respondent in this appeal has submitted that the First Appeal could not fail on that ground itself, for if the plaintiff was entitled to get relief against the surviving respondent, Mr. Atmaram Kanoria, that relief could not be defeated because of the death of another respondent in the First Appeal. That indeed is the position. When the First Appeal was filed against Atmaram Kanoria and Sugan Chand Saraogi, there is no doubt that the appeal was still born as against Sugan Chand. But that could hot entail the failure of the appeal or of the suit. If the plaintiff appellant could get any relief against Atmaram, there is no reason why that relief should be disallowed, because another person was dead. No doubt, no relief against Sugan Chand could be granted in law; but .that necessarily could not have any impact upon the relief claimed against another. If the right to sue against one party could survive, the suit or appeal could not fail merely on the ground of the death of another party. As a matter of fact, in this suit, the plaintiff, prayed for relief mainly against Atmaram Kanoria. So the merits of the First Appeal as against Atmaram Kanoria have to be considered, notwithstanding the death of Sugan Chand.
8. With regard to the merits of the case, Mr. Bose, appearing for the appellant in this appeal, has submitted that the learned First Appellate Court made a serious mistake as to the identity of the property. He has further contended that there was no basis for the conclusion of the learned First1 Appellate Court that the plaintiff was a tenant in respect of 14, Ballygunge Park.
9. Mr. Mitra, the learned Advocate appearing along with Mr. Chakraborty, for the plaintiff respondent has, on the other hand, submitted that the judgment and decree of the learned Appellate Court are quite sound,. as there is sufficient materials regarding fraud perpetrated.
10. At the very outset, it may be observed that both the Courts below to a great extent devoted to extraneous matters. There was much discussion as to whether the decree in Title Suit No. 136 of 1974 was vitiated by fraud. In our view, all these are extraneous matters. It is to be noticed that there is no prayer in the present suit for setting aside the decree passed in Title Suit No. 136 of 1974 of the 2nd Court, Subordinate Judge, Alipore. Even if that decree was obtained by fraud, that must stand, as there is no prayer for setting aside the same. If, however, the decree is void, then that decree is to be ignored. There is no prayer for declaration that the decree is fraudulent, instead, there is a prayer for declaration that the decree is vague, invalid, inoperative and not executable against the plaintiff. Therefore, the question as to whether the earlier decree was tainted with, fraud, would be an irrelevant question.
11. The only point for consideration should be whether the decree ire. Title Suit No. 136 of 1974 was passed in respect of the premises in which the plaintiff was a tenant. The plaintiff has come put with a case that he was all along a tenant in respect of 14, Ballygunge Park Road, and not 14, Ballygunge Park, though the decree was passed for 14, Ballygunge Park. If the plaintiff was a tenant in respect of 14, Ballygunge Park Road and if that is something different from 14, Ballygunge Park, there can be some basis for the contention that he could not be evicted from 14, Ballygunge Park Road in execution of a decree for a different property. Thus,, the essence of the matter is whether the plaintiff was a tenant in respect of 14, Ballygunge Park.
12. Even on the basis of the materials as were available, I do not see how the learned Lower Appellate Court could come to the conclusion that the plaintiff was a tenant in respect of 14, Ballygunge Park Road, and not 14, Ballygunge Park. Ext. A is a letter, dated 18.2.74 from Balai Chandra Law, the original defendant No. 2 in this suit, addressed to the plaintiff. Ext. A bears the address, 14, Ballygunge Park, Calcutta. The receipt of this letter is admitted by the plaintiff in paragraph 8 of the plaint. Ext. C is the acknowledgement in respect of a registered letter, addressed to the plaintiff. The same address, that is 14, Ballygunge Park is noted.. The acknowledgement was signed by one Ansuddin. There is much controversy as whether Ansuddin was the agent of the plaintiff or not. At any rate, it discloses that the letter was addressed to 14, Ballygunge Park.. Ext. E is the writ of summons, with the report of the process server, duly certified by the Nazir of the Court. Again, 14, Ballygunge Park is the address noted in the writ of summons. The process server's report is. that he went to 14, Ballygunge Park at about 7.30 A.M. on 10.10.74. The identifier was one Mr. Choralia. The report further discloses that the; defendant (the plaintiff in the present suit) was found present but he refused to accept the same on granting receipt; so the process server served it by hanging the same on the outer door. The process server has been examined in this case and he is D.W.I. He has proved that he served the summons in due course. It is true that the process server has got no independent recollection. That is quite normal. But there is no reason to support that the process server is deposing falsely. It can well be presumed that the process server discharged his duty in regular course of business, after ascertaining the whereabouts of the plaintiff.
13. These documents clearly indicate that the plaintiff was a tenant in respect of 14, Ballygunge Park. The decree of Title Suit No. 136 of 1974 was also in respect of 14, Ballygunge Park. Not1 only that, even the execution case was started in respect of 14, Ballygunge Park. It would be very unusual thing for the plaintiff in that suit to have a decree for a wrong premises. That would be to the prejudice of the plaintiff himself. If the present plaintiff was a tenant in respect of different premises, supposed to be 14, Ballygunge Park Road, it would be such suicidal for the plaintiff in the earlier suit to obtain a decree against him for another premises. When the decree was in respect of 14, Ballygunge Park, there cannot be any doubt that the plaintiff was a tenant in respect of that property, and not in respect of any other property. And, there could not be any confusion in the mind of the present plaintiff (the defendant! in the earlier suit) as to for which property he was a tenant. Apart from the conduct, of the plaintiff in Title Suit No. 136 of 1974, there are independent pieces of evidence, Exts. A, C and E, already referred to, indicating that the present plaintiff was a tenant in respect of 14, Ballygunge Park. The learned First Appellate Court has been greatly carried by the ejectment notice, which was marked Ext. 1 in the earlier suit, with the address 14, Ballygunge Park Road. But it is not for direct consideration whether the notice in the earlier suit was properly addressed or not. That notice might have described the property incorrectly, but that alone cannot overweigh the evidence and circumstances placed in the present suit.
14. There was sufficient material before the Courts below for coming to the conclusion that the plaintiff was a tenant in respect of 14, Ballygunge Park, for which the ejectment decree was passed and delivery of possession was taken in execution thereof. But to make the point clearer, some additional evidences were led in this Court on behalf of the present appellant, Atmaram Kanoria. First, the lease of deed, dated 1st October, 1973, between Sugan Chand Saraogi and Balai Chandra Law has been proved. It has been marked High Court Ext. 1. That lease deed clearly refers to the premises 14, Ballygunge Park. Nowhere it is mentioned that 14, Ballygunge Park Road is the property leased out. This lease between Sugan Chand Saraogi and Balai Chandra Law is clearly admitted by the present plaintiff, Mr. R. H. Wright. The document would clearly belie the contention on behalf of Mr. Wright that he was a tenant in respect of 14, Ballygunge Park Road. High Court Ext. 2 is a rate bill from the Calcutta Corporation. The name of Mr. R. H. Wright is there and the property concerned is described as 14, Ballygunge Park. High Court Exts. 3 and 4 series are also the rate bills. All described the property as 14, Ballygunge Park. High Court Ext. 5 is an application for deposit of rent by Mr. R. H. Wright of 14, Ballygunge Park. Rent was sought, to be deposited in respect of the same property, that is, 14, Ballygunge Park. Ext. 6 is the writ of possession in respect of 14, Ballygunge Park. The process server's report about the delivery of possession is also there. Thus, possession in respect of 14, Ballygunge Park was delivered. The position now becomes very clear. The present plaintiff was all along a tenant in respect of 14, Bally gunge Park. The submission now made on his behalf that he was a tenant in respect of 14, Ballygunge Park Road is contrivance. This dubious attempt of the present plaintiff has been clearly frustrated by the materials on record.
15. If the plaintiff, R. JH. Wright, was all along a tenant in respect of 14, Ballygunge Park, he cannot get any relief claimed in the suit. Whether the decree in Title Suit No. 136 of 1974 or 73 of 1976 was obtained by fraud or not, that has become final and is not a nullity. And if the decree is for the specific property in respect of which Mr. Wright is a tenant, then there cannot be any reason why the same should be invalid, improper or not acceptable. The decree was valid and acceptable, and in execution of that decree possession was delivered to the plaintiff of the earlier suit. The learned First Appellate Court was completely under a delusion as to the property for which Mr. Wright was a tenant. He imagined that the decree was obtained in respect of a different property. The materials on record have revealed clearly that there cannot be any foundation for such imagination. Then the learned Lower Appellate Court considered extraneous matter and to a great extent was influenced by them. He went into the question of relationship of landlord and tenant between Mr. Wright and Mr. Atmaram Kanoria. He sought to make thorough investigation as to the claim of the plaintiff in the previous suit and made adverse finding against him. But unfortunately, he had trodden on grounds not within his jurisdiction. He had not to decide the merits of the earlier case. The learned Trial Court also addressed to him the question of fraud, etc., to some extent, but his ultimate finding about the merits of the case is correct. It has been noted by the learned Trial Court that there is no prayer in the plaint for setting aside the ex parte decree. And in an indirect way, he has found that the present plaintiff was a tenant in respect of 14, Ballygunge Park, it is noted that the decree was lawfully executed through Court with police help. But patently, the judgment and decree of the learned First Appellate Court are based on wrong assumption. Though it appears to be a finding of fact, actually a substantial question of law is involved, when the finding of fact itself has no basis. In the case of Budhwanti and Anr. v. Golap Ch, Prasad, , the Supreme Court has held that where the Trial Court on the basis of evidence before it found that the landlord was in bona fide requirement of the tenanted shop for the business requirement of the members of the joint family but the Appellate Court reverse that finding on baseless assumption and wrong principles of law, the High Court in Second Appeal is justified in setting aside the finding of the Appellate Court, even though the finding be factual in character. Here also, the learned First Appellate Court reversed the finding of the Trial Court on baseless assumptions and wrong principles of law. The case here is stronger ; not only the lower appellate Court based his findings on assumptions, but, as has already been observed, those baseless assumptions were the result of a delusion. In the Supreme Court decision cited above, it is also observed that where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumptions, the High Court will be within its right in setting aside in Second Appeal a patently essence finding in order to render justice. In this case, it has been found that the learned Appellate Court applied wrong tests. He went to consider the merits of the earlier case and was a very much influenced by such extraneous considerations. It has resulted a failure of justice and to render justice this Court must set aside the judgment.
16. The result is that the appeal must be allowed. The judgment and decree of the learned Additional District Judge, 14th Court, Alipore, dated 20.8.87 are hereby set aside. The judgment and the decree of the learned Trial Court in Title Suit No. 73 of 1976, dismissing the suit is to be restored subject to certain modifications. The learned Trial Court dismissed the suit on contest with costs against the defendant No. 1 and ex parte without costs against the other defendants. The name of the defendant No. 2 in Title Suit No. 73 of 1976 was expugned. So there remained two other defendants, Atmaram Kanaria (defendant No. 1) and Sugan Chand Saraogi (defendant No. 3). It appears that the said Sugan Chand Saraogi had died even before the passing of the decree of the learned Trial Court. A petition was filed in this Court on 12.2.88, stating that Sugan Chand Saraogi had died on or about the 9th of January, 1978. On that basis, by order, dated 31.3.88 of this Court, the name of Sugan Chand Saraogi, figuring as appellant No. 2 in the appeal, was directed to be deleted. Therefore, it is on the record that Sugan Chand Saraogi, who was the defendant No. 3 in the suit, had died long before the passing of the decree by the learned Trial Court. Although the suit was dismissed as a whole, technically there cannot be any decree of dismissal even against a dead person. So the judgment and the decree of the learned Trial Court dismissing the suit on contest with costs against the defendant No. 1 is restored and the decree dismissing the suit against the rest without costs is vacated, the suit having abated against the said defendant No. 3, we make no order for costs.
17. The verbal prayer on behalf of the respondent for stay of operation of the decree is disallowed on the ground that possession in respect of the suit property was obtained many years back and there cannot be any question of dispossession or imminent danger.
Padma Khastgir, J.
18. I agree.