Orissa High Court
Truptimayee Bastia & Others vs Subhalaxmi Mishra & Others on 6 September, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 179 of 2024
[In the matter of an appeal under Section 100 of the Code of
Civil Procedure, 1908.]
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Truptimayee Bastia & Others ...... Appellants
-Versus-
Subhalaxmi Mishra & others ..... Respondents
Advocate(s) appeared in this case :-
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For Appellants : Mr. D.P.Mohanty, Advocate
For Respondents: Mr. Siva Prasad Kar (R-2 in person)
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CORAM
JUSTICE SASHIKANTA MISHRA
JUDGMENT
6th September, 2024 SASHIKANTA MISHRA, J. The defendants are in appeal against a confirming judgment passed by learned Additional District Judge, Bhubaneswar in RFA No. 10 of 2024 on 14.05.2024 followed by a decree whereby the judgment passed on 20.12.2023 followed by decree by the learned Senior Civil Judge (LR and LTV) Bhubaneswar in CS No. 678 of 2021 was confirmed. Page 1 of 14
2. For convenience, the parties are referred to as per their respective status before the trial Court.
3. The plaintiff-respondent No.1 filed the suit for eviction, realization of arrear rent along with GST and for damages and other incidental reliefs.
4. The case of the plaintiff is that the proforma defendant No. 6, being the husband of the plaintiff, is the rightful owner of the schedule land and the building standing thereon. She claims to have taken the land from her husband to start a hotel in the name and style of "Lavender". She obtained necessary permission from the concerned authorities. She resided on the top floor of the building with her family and also ran a Marriage Mandap in another portion of the building. She claims that defendant Nos. 2 to 5 approached her and her husband to lease out the suit premises on monthly rent which they agreed and accordingly it was let out on a monthly rent of Rs. 4 lakhs and a tenancy agreement was executed on 01.10.2019. The defendants agreed to pay 18 per cent GST over and above the monthly rent. Thereafter, they Page 2 of 14 ran the hotel smoothly but did not pay the agreed monthly rent. When the plaintiff demanded the same, the defendants threatened her and her husband with dire consequences. It is the further case of the plaintiff that the defendants were paying monthly rent of Rs. 1 lakh instead of Rs. 4 lakhs. Further, she received summons in CS No. 1938 of 2020 filed by the defendant No.4 on the basis of a manufactured lease agreement dated 02.09.2019 by taking the signatures of the plaintiffs and her husband forcefully by showing the monthly rent at Rs. 1 lakh. As such, the plaintiff issued notice under Section 106 of the Transfer of Property Act to the defendants for vacation of the suit property and to clear up the outstanding arrear rent of Rs. 4,98,4000/- by 30.12.2020. She further claimed damages of Rs. 50,000/- per day till handing over vacant possession of the suit premises.
5. Defendant Nos. 2 and 4 contested the suit by jointly filing a written statement. It was, inter alia, stated that the lease agreement was executed on 02.09.2019 for a period of 5 years. As per the agreement, the defendants Page 3 of 14 paid Rs. 24 lakhs towards an interest free refundable security deposit to the plaintiff and her husband and specifically that the monthly rent was fixed at Rs. 1 lakh. Further, they invested Rs. 80,00,000/- for development of the hotel which started operations from October 2019 and have been paying rent regularly. The business came to halt due to Covid-19 pandemic for which the monthly rent could not be paid from April 2020 to August 2020. The plaintiff however, asked them to vacate the suit premises on the threat of dire consequences for which the defendants filed a complaint case being 1CC Case No. 3049 of 2020.
6. Basing on the rival pleadings, the trial Court framed the following issues for determination:
(i) Whether the suit is maintainable?
(ii) Whether there is cause of action for the plaintiff to file the suit?
(iii) Whether the suit of the plaintiff is barred by limitation?
(iv) Whether the lease agreement submitted by the plaintiff is genuine one?
(v) whether the notice u/s. 106 of the T.P. Act dated 30.12.2020 served on the defendants is valid and proper?Page 4 of 14
(vi) Whether the plaintiff is entitled to a decree for eviction of the defendants from the suit premises ?
(vi) Whether the plaintiff is entitled to a decree for eviction of the defendants from the suit premises?
(vii) Whether the plaintiff is entitled to a decree for realization of outstanding arrear rent? (Viii) Whether the plaintiff is entitled to a decree for damages for unauthorized occupation of the suit premises by the defendants @ Rs. 50,000/- per day w.e.f. 05.02.2021?
(ix) Whether the plaintiff is entitled to a decree for damages of Rs. 20,50,000/- towards the cost of damage to the hotel property?
(X) Whether the plaintiff is entitled to a decree to forfeit the security money deposited by the defendants?
(Xi) To what other relief(s) the plaintiff is entitled?"
7. After considering the oral evidence adduced by the parties, the trial Court decreed the suit by directing the defendants to hand over possession of the suit premises and to further pay a sum of Rs. 53,75,000/- towards arrear rent along with GST and electricity charges for the period from April 2020 to February 2021 along with the interest at the rate of 12 per cent. The defendants were further directed to pay damages at Rs. 80,10,000/- per month from March, 2021 till vacation of the suit premises with interest @ 12 per Page 5 of 14 cent from 1st of March 2021. The trial Court also held that the security amount of Rs. 16,00,000/- paid by the defendants shall be adjusted against the above pleadings.
8. The defendants carried the matter in appeal. In course of hearing of the appeal, a petition was filed by them on 15.03.2024 for adducing additional evidence under the provisions of Order 41 Rule 27 of CPC. The First Appellate Court, after taking note of the grounds raised held that the lease agreement dated 02.09.2019 (Ext.1) mentioned the monthly rent at Rs. 4,00,000/- per month. On such basis, it was held that the defendants did not pay the rent and other charges as per the lease agreement for which the plaintiff had issued notice for vacation of the suit premises. Since the lease agreement was violated, the defendants are liable to be evicted and to hand over possession of the suit premises along with payment of arrear rent, GST and electricity charges etc as directed by the trial Court. The appeal was thus dismissed.
Page 6 of 14
9. Being further aggrieved, the defendants Nos. 1 to 4 have filed the present second appeal which was admitted on the following substantial question of law:
"(I) whether the lower appellate Court was correct in not considering the additional evidence sought to be adduced by the appellant despite referring to it in the judgment"
10. Heard Mr. D.P.Mohanty, learned counsel for defendant-appellants and Mr. S.P.Kar, the defendant Nos.6/Respondent No.2 in person for himself and as power of attorney holder for the plaintiff-respondent No.1.
11. Mr. Mohanty, learned counsel for the defendant- appellant would argue that the crux of the dispute between the parties lies in interpretation of the lease agreement dated 02.09.2019. The plaintiff produced a fake lease agreement withholding its original but the trial Court believed the same to be genuine. On the other hand, it is the consistent case of the defendant that the lease agreement dated 02.09.2019 mentions the monthly rent as Rs. 1,00,000/- and not Rs. 4,00,000/- as claimed by the plaintiff. In order to prove Page 7 of 14 their contentions, the defendants applied before the GST authorities for supplying the copy of the lease agreement dated 02.09.2019 submitted at the relevant time. The documents were made available to the defendants during pendency of the first appeal for which a petition to admit the same as additional evidence was filed. The First Appellate Court did not pass any order on such petition and disposed of the appeal basing on the evidence already on record which included the copy of the lease agreement filed by the plaintiff. As such, the defendants have been seriously prejudiced and the appeal must be treated as being wrongly decided.
12. Per contra, Mr. Kar would submit that the defendants are guilty of dishonoring the lease agreement dated 02.09.2019 causing thereby serious financial loss to him and his wife. Moreover, they employed anti-socials to threaten them with dire consequences when a legitimate claim for payment of arrear rent was raised. Mr. Kar further submits that both the Courts below having accepted the lease Page 8 of 14 agreement proved by the plaintiffs as genuine, no further evidence can be permitted to be adduced.
13. Having regard to the substantial question of law framed for hearing of this appeal, it would be apposite to first refer to the provision under Order 41 Rule 27 of CPC at the outset.
"27. Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if --
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission"
It is trite law that additional evidence can be permitted to be adduced even at the stage of appeal upon satisfaction of the conditions mentioned in the provision. It is well settled that additional evidence can Page 9 of 14 be permitted to be adduced in appeal if it is required by the Court to enable it to pronounce the judgment or in other words, to do justice. Further, if the evidence proposed to be adduced is expected to throw light on the germane issue and necessary to be considered for pronouncement of the judgment then, additional evidence is to be admitted. The above view was taken by the Supreme Court in the case of Union of India v K.V. Lakshman1. Even otherwise, if the new evidence has direct and important bearing on the main issue, additional evidence can be allowed. The above view was taken by this Court in the case of Chandra Sekhar Pal and others vrs. Musmat Tapoi and another2. It is further well settled that when a petition for additional evidence is filed before the appeal is taken up for hearing, the Appellate Court is to postpone the consideration of the petition till hearing of the appeal and to take up the same at the time of hearing of the appeal on merits to find out about the relevancy and admissibility of additional evidence. The above view 1 AIR 2016 SC 3139 2 1985 (I) OLR 76 Page 10 of 14 was taken by this Court in the case of Sukru Bibhar v Tileswar Naik & Ors3
14. The facts of the case may now be considered in light of the above referred propositions of law. The order sheet of the First Appellate Court reveals that the petitioner under Order 41 Rule 27 was filed by the appellant-defendants on 15.03.2024 and a copy thereof was served upon the plaintiff on 20.03.2024. On 23.03.2024, the plaintiff-respondent filed objection to the petition dated 15.03.2024. The appeal was thereafter taken up for hearing on 03.04.2024, 04.04.2024, 06.04.2024, 18.04.2024, 24.04.2024 and 29.04.2024. The judgment was pronounced on 14.05.2024. There is no mention whatsoever in the order sheet as to if any order was passed on the petitioner dated 15.03.2024. Since the Appellate Court could also have dealt with the petition in the judgment itself, this Court has carefully scanned the impugned judgment but finds that there is no whisper as to what was the result of the petition for additional evidence. 3 1998 (II)OLR 129 Page 11 of 14 Thus, this is a case where, despite the petition for additional evidence being on record, the same was not considered at all by the First Appellate Court. This, by itself renders the impugned judgment vulnerable and unsustainable.
15. Even otherwise, a reading of the petition under Order 41 Rule 27 available in the LCR reveals that the defendant-appellants wanted to admit the information supplied by the GST authorities on 29.02.2024 including a copy of the rent agreement dated 02.09.2019 submitted by them for obtaining GST certificate. According to the defendant-appellants, the agreement, being submitted before the GST authority at an undisputed point of time carries great value. Moreover, there is mention of monthly rent being Rs. 1,00,000/- therein as compared to Rs. 4,00,000/- as mentioned in the copy of the same agreement exhibited by the plaintiff. Without expressing any opinion either way in this regard, this Court is persuaded to hold that the First Appellate Court should have allowed the petition by admitting the documents as additional Page 12 of 14 evidence in the case so that a comprehensive view of the dispute could have been taken and proper judgment could have been pronounced. This Court also holds that the central point of dispute between the parties being the amount of monthly rent fixed, the additional evidence sought to be adduced certainly is germane to the said issue.
16. For the foregoing reasons therefore, this Court is of the considered view that the First Appellate Court committed manifest error in not considering the petition for additional evidence filed by the defendant- appellants. Since the matter involves factual issues, it would be proper for the First Appellate Court to consider the same by making a comparative analysis of the evidence adduced by both sides.
17. In the result, the appeal succeeds and is therefore, allowed. The impugned judgment passed by the First Appellate Court is hereby set aside. The matter is remitted to the First Appellate Court to consider the appeal afresh after allowing the petition dated 15.03.2024 filed by the defendant-appellants for Page 13 of 14 adducing additional evidence giving due opportunity to the plaintiff-respondent to adduce rebuttal evidence if any. The appeal shall be disposed of within three months from today.
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Sashikanta Mishra, Judge Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 13-Sep-2024 11:31:44 Page 14 of 14