Bombay High Court
Pushpalata Parshuram Borukar And Ors. vs Madhavlal N. Pittie Esquire And Anr. on 13 September, 2004
Equivalent citations: 2005(3)BOMCR458, 2005 A I H C 1084, 2006 (1) AKAR (NOC) 158 (BOM), (2005) 2 ALLMR 43 (BOM), (2005) 3 BOM CR 458
Author: R.M.S Khandeparkar
Bench: R.M.S Khandeparkar
JUDGMENT Khandeparkar R.M.S., J.
1. Heard. Perused the records. No case for proceeding against the respondent No. 2. The petition as regards the respondent No. 2 is concerned, the same is rejected in limine. Rule. By consent, the Rule is made returnable forthwith.
2. The petitioners challenge the order passed by the Appellate Bench of the Small Cause Court, Mumbai, on 8th July, 2004 in Appeal No. 156 of 2004 whereby the Appellate Court has dismissed the appeal filed by the petitioner against the judgment and decree dated 27th August, 2003 passed in R.A.E. Suit No. 271/807 of 1981. The eviction suit was filed on three grounds viz. (1) commission of waste and damage to the suit premises, (ii) carrying out additions and alterations of permanent nature and (iii) unlawful subletting of the premises. Both the courts below, on detail analysis of the materials on record, have arrived at the concurrent findings on the said issues and, therefore, undoubtedly in the absence of finding being either perverse or contrary to the materials on record, there can be no case for interference in the impugned judgment in writ jurisdiction.
3. The learned Advocate for the petitioners had strenuously argued the point regarding absence of authority to the person, who had verified the pleadings in the plaint filed in the suit. However, perusal of the impugned judgments discloses that the courts below were satisfied about the due compliance of the provisions of law relating to the rules of verification. Attention was sought to the drawn to the decision in the matter of Raj Kumar Dhar and Ors. v. Colonel A. Staurat Lewis, reported in A.I.R. 1958 Cal. 104 and in the matter of Central Bank of India v. Shashi Kala Sharma and Ors., reported in 1989(1) Current Civil Cases 367.
4. Once the courts below, on detail analysis of the materials on record, have arrived at the finding about due compliance of the rules regarding verification, unless the petitioners are able to point out in what respect the finding is either perverse or contrary to the materials on record, mere reliance in the said decisions can be of no help to the petitioners to warrant interference in the impugned judgments. Besides, in Raj Kumar Dhar's case (supra) the Calcutta High Court was dealing with a matter regarding necessity of verification by the plaintiff himself in view of peculiar nature of allegations in the plaint. That was a case where the plaint contained serious allegations of fraud, falsification of account, culpable negligence etc. and therefore, the same needed verification by the plaintiff himself in order to hold him accountable for those allegations. In fact, the pleadings were verified only by the attorney of the plaintiffs. In Central Bank's case (supra), the plaint was verified on behalf of the bank by a person not authorised to verify the same. Both the decisions are therefore clearly distinguishable on facts.
5. It was also sought to be argued that the parties are not entitled to lead evidence in variance to the pleadings. It was contended that though the plaint was verified by one person, the evidence was led by a different person. The same does not amount to variance between the pleadings and the evidence. The decision of the Apex Court in the matter of Vinod Kumar Arora v. Smt. Surjit Kaur, reported in A.I.R. 1987 S.C. 2179 which lays down the law that the pleadings of the plaintiff form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case, is of no help in the case in hand. Examination of witnesses to the exclusion of the plaintiff himself does not amount to variance between the pleadings and the evidence. It is for the party to the suit to decide about the nature of evidence that he desires to bring on record in support of his pleadings. It is not necessary for the plaintiff to examine himself as the witness in each and every case. It would depend upon the facts of each case. Sufficiency of evidence is different from the issue relating to the variance between the pleadings and the proof.
6. It was also sought to be argued that the Court below erred in giving undue importance to the weakness in the defence case rather than considering the plaintiffs' case. It is well established principles of law that the plaintiff has to stand on his own legs and mere weakness in defence case cannot enure to the benefit of the plaintiff. Reliance is sought to be relied in the decision of Patna, High Court in Ramadhin Singh v. Siaram Singh and Anr., reported in A.I.R. 1957 Patna 64.
7. Apart from canvassing the above argument, the petitioners have not been able to point out as to how the findings which have been arrived at by the courts below can be said to be merely on the basis of the weakness in the defence case and not on the basis of the analysis of the evidence led by the respondents. Perusal of the analysis of evidence by the Court below discloses that the evidence led by the respondent was fully corroborated by the documentary evidence, and the same has gone on record unchallenged. Being so, that is no substance in the said ground of challenge. In Ramadhin Singh's case (supra), it was a matter where a suit on a handnote, the defendant has admitted only that he had put his thumb mark on a blank piece of paper which he alleged, possibly had been utilised for the handnote and sued upon, but he did not admit the execution of the handnote in suit and therefore the onus of proving that the particular handnote, which was the basis of the suit, was duly executed by the defendant was upon the shoulders of the plaintiff. The decision was in the facts of the case before the said Court and has no application to the case in hand.
8. It was also sought to be contended that the plea regarding defect in the verification goes to the root of the case and can be raised at any stage of the proceedings, and in that regard, reliance is sought to be placed in the decision of the Apex Court in The State of Rajasthan v. Rao Raja Kalyan Singh, by his legal representatives, reported in A.I.R. 1971 S.C. 2018. In the said case before the Apex Court, plea which was sought to be raised was regarding non-maintainability of the suit on account of absence of right to claim the cess amount by the plaintiff District Board from the defendant Thikanedar and not in relation to any procedural defect, which could be allowed to be cured at the discretion of the Court, It is well settled that in case of any defect in the verification, if brought to the notice of the Court at the earliest stage, certainly the Court can take appropriate decision in that regard at that stage itself. However, mere defect in the pleadings cannot be a justification to non suit the plaintiff at the stage when not only the proceedings before the trial Court have been concluded after recording of the evidence but the proceedings at the appellate stage have also been concluded. The decision of the Apex Court, which is sought to be relied upon by the learned Advocate for the petitioners, was in respect of non maintainability of the suit for the reasons which have been disclosed in paragraph 8 of the said decision, which reads thus:
"From a perusal of these provisions, it is clear that in the matter of collection of ceases by the Thikanedar from his sub-grantees and tenants in the Non-Khalsa area, he has to pay the same along with his contribution to the Government and the Government thereafter makes it over to the District Board. He has no liability to make over the collection of ceases to the District Board nor is there any right conferred on the District Board to demand and collect the same from the Thinknedar. Mr. Chagla appearing for the State of Rajasthan conceded that the claim made by the District Board in respect of the contribution due from the respondent is not sustainable as the same had to be collected by the Government but he tried to make a distinction between the claim in respect of the contribution due and that in respect of the cess collected by the respondent from his sub-grantees and tenants. No provisions of the Act has been brought to our notice which either requires that Thikanedars to pay the cess collected by them from their sub-grantees and tenants to the District Board or which confers any right on the District Board to demand the payment of the same. In fact a perusal of the provisions quoted above clearly shows that the liability of the Thikanedar is to pay the cess collected by him to the Government."
9. This apparently discloses that the point which was sought to be raised before the Apex Court was in relation to the non-maintainability of the suit on account of absence of right to sue in favour of the plaintiff and not in relation to any defect in the pleadings or verification of the pleadings, and for the same reason, the decisions is of no help to the petitioner for the contention sought to be raised on behalf of the petitioners in the case in hand.
10. It was also sought to be contended that the judgment passed by the Appellate Court is not in consonance with the provisions of Order XLI, Rule 31 of the Code of Civil Procedure, and in that regard, the decision of the learned Single Judge of this Court in Smt. Anita M. Harretto v. Abdul Wahid Sanaullah, reported in A.I.R. 1985 Bombay 98 is sought to be relied upon. It cannot be disputed that the Appellate Court has to formulate the points for determination which can be considered while dealing with the appeal arising out of a judgment passed by the trial Court. In the case in hand though the impugned judgment does not disclose framing of the points for consideration in accordance with the Order XLI, Rule 31 of the Code of Civil Procedure, nevertheless the impugned judgment discloses the recording of the points which were sought to be raised by the petitioner before the Appellate Court as well as the discussion in relation to those points which were raised by the petitioner in the appeal. Being so, though the points which have been considered are not formulated in the form of questions, certainly the judgment discloses the consideration of all the relevant points which arose for consideration in the judgment. Being so, there is substantial compliance of requirement of the provisions of Order XLI, Rule 31 of the Code of Civil Procedure, and therefore, merely on the technicalities there cannot be any justification for interference in the well reasoned judgment passed by the Court below. Certainly no such interference is called for in writ jurisdiction.
11. It is also to be noted that there are concurrent findings arrived at on the factual aspects of the matter and the petitioners having not been able to establish those findings to be either perverse or contrary to the materials on record, the decision in Vinod Kumar Arora's case (supra) rather than helping the petitioners to seek interference of this Court in the impugned judgments, justifies dismissal of the petition in limine.
12. For the reasons stated above, there is no case for interference in the impugned judgments and orders and the petition is liable to be dismissed and is accordingly dismissed. Rule stands discharged with no order as to costs.
13. At this stage, the learned Advocate for the petitioners requests for stay of the order granted by the lower Appellate Court staying the execution of the eviction decree. Request granted. The same shall remain in force for a period of eight weeks from today.