Gauhati High Court
6: Shabana Anjum vs On The Death Of Md. Moosa His Legal Heirs ... on 30 August, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/20
GAHC010162382008
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/398/2008
ON THE DEATH OF MONIRUDDIN AHMED
S/O LT. MOINUDDIN AHMED, R/O RANGAGORA ROAD, TINSUKIA TOWN,
PO/PS. TINSUKIA, DIST. TINSUKIA.
1.1: NAZMA AHMED
W/O- LATE MONIRUDDIN AHMED
1.2: SHAKIL AHMED
S/O- LATE MONIRUDDIN AHMED
1.3: JAMIL AHMED
S/O- LATE MONIRUDDIN AHMED
1.4: NASEEM AHMED
S/O- LATE MONIRUDDIN AHMED
1.5: NADIM AHMED
S/O- LATE MONIRUDDIN AHMED
1.6: SHABANA ANJUM
D/O- LATE MONIRUDDIN AHMED
ALL ARE RESIDENT OF RANGAGORAH ROAD
TINSUKIA TOWN
P.O.
P.S. AND DIST.- TINSUKIA
ASSAM
VERSUS
ON THE DEATH OF MD. MOOSA HIS LEGAL HEIRS and ANR.
TINSUKIA
1.1:MD. SAKIL AKHTAR
S/O- LATE MD. MOSSA
Page No.# 2/20
1.2:MD. MOHIT
S/O- LATE MD. MOSSA
1.3:MD. DAUD
S/O- LATE MD. MOSSA
1.4:MD. SAHID
S/O- LATE MD. MOSSA
ALL ARE RESIDENT OF A.T. ROAD
SAHID MARKET
NEAR PRAKASH BAZAR PETROL PUMP
TINSUKIA- 786125.
2:MD. ISA
BOTH SONS OF LT. IBRAHIM
R/O TINSUKIA TOWN
PO/PS. TINSUKIA
DIST. TINSUKI
Advocate for the Petitioner : MR N RAJKHOWA
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (ORAL)
Date : 30-08-2022
1. Heard Mr. P. K. Roy, the learned Senior counsel assisted by Ms. A. Chakraborty appearing on behalf of the Petitioner and Mr. S. Banik, the learned counsel appearing on behalf of the Respondents.
2. This is an application under Section 115 of the Code of Civil Procedure, 1908 (for short "the Code") challenging the judgment and decree dated 22.07.2008 passed in Title Appeal No.8/2004 whereby the appeal was dismissed thereby confirming to the judgment and decree dated 14.09.2004 passed by the Page No.# 3/20 Civil Judge (Junior Division) No.1 Tinsukia in Title Suit No.33/1989.
3. For the sake of convenience, the parties herein are referred to in the same status as they stood before the Trial Court. The case of the plaintiffs is that on 01.04.1965, the defendant came in occupation of the suit premises as a monthly tenant under the plaintiffs agreeing to pay monthly rent of Rs.50/- according to the English Calendar year. It was mentioned that the rent for the month was payable by the end of the month without any fail. It has been further alleged that the defendant failed to pay the monthly rent from the month of May, 1985 onwards and thus became a defaulter. Further to that, it was also alleged that the defendant has breached the tenancy agreement substantially by altering the suit premises by dismantling C.I. sheets and wooden walls of the suit premises and constructing brick walls in place thereof and by converting kacha floor of the suit premises to a pucca floor. It was alleged that the defendant did all these in the month of September, 1988. Further to that, it was mentioned that the plaintiffs have requested the defendant on many occasions to vacate the suit premises and lastly on 15.03.1989 to vacate the suit premises and yield vacant and khas possession thereof to them. It has been alleged that the defendant though assured the plaintiffs but failed to vacate the suit premises and to clear the arrear rent and as such the plaintiffs were compelled to file the suit for eviction of the defendant from the suit premises and for recovery of arrear rent. The said suit was registered and numbered as Title Suit No.33/1989.
4. The defendant filed his written statement stating inter alia that there was no cause of action for the suit. It was the specific stand of the defendant that the defendant is not the monthly tenant of the plaintiffs for the suit premises as alleged. It was stated that the defendant never came into occupation of the suit premises as alleged on 01.04.1965 in Paragraph No.1 of the plaint and as such Page No.# 4/20 the question of paying rent to the plaintiffs did not arise. It was stated that the land in which the suit premises was standing bearing Tinsukia Municipal Board Holding No.3191(k) at present was within Ward No.13 of Tinsukia Municipal Board covered by Dag No.1720 and 2202 was taken on lease from Md. Bashir in the year 1953 by the defendant's father Late Moinuddin Ahmed and defendant's uncle Late Hazi Mofizuddin jointly.The agreement was entered upon in the year 1956 with Md. Bashir by the defendant's uncle Late Hazi Mofizuddin. The residential house was constructed by the defendant's father Late Moinuddin Ahmed and defendant's uncle Late Hazi Mofizuddin jointly. Initially, the holding number of the said premises was 1660 from 1953 to 1963-64 comprised in Ward No.6 of Tinsukia Municipal Board and the said holding was in the name of the father of the defendant, Late Moinuddin Ahmed. But, subsequently the Holding numbered was changed and the Holding Number of the premises was recorded as 2367 from 1964 to 1975 and again in the year 1975, it was re- numbered as 3191(k) within Tinsukia Municipal Board Ward No.13 and this Holding No.3191(k) continued till date. It was also mentioned that the said Holding No.3191(k) was in the name of defendant's uncle Late Hazi Mofizuddin. It was further mentioned that after the death of Late Hazi Mofizuddin, Holding No. 3191(k) of Ward No.13 of the said premises still continues in his name. It was further mentioned that the suit premises is a joint property of the defendant alongwith other heirs of Late Moinuddin Ahmed. It is also relevant to mention that in the written statement, it was specifically mentioned that the plaintiffs are not the owners of the suit premises and they have no right, title and interest over the suit premises and the suit so filed to evict the defendant was fraudulent and illegal, thereby to gain wrongfully the possession of the suit premises. Further to that, it was mentioned that the defendant has got right, Page No.# 5/20 title, interest and possession over the suit premises and the defendant alongwith other heirs of Late Moinuddin Ahmed are the joint owners of the suit premises with right, title, interest and possession thereon in the suit premises.
5. On the basis of the said pleadings, as many as 10 issues were framed which were:
(1) Whether there is a cause of action for the plaintiff's suit? (2) Whether the suit is maintainable in law and facts?
(3) Whether the plaintiffs have the right to sue?
(4) Whether the defendant is a monthly tenant under the plaintiff?
(5) Whether the defendant is a defaulter in payment of rent since May, 1985 as
alleged?
(6) Whether the land in which the suit premises are standing bearing present
holding No.13 of Tinsukia Municipality was taken on lease jointly from Md.
Bashir by the defendants father Late Moinuddin Ahmed and Uncle Late Hazi Mofizuddin during their life time?
(7) Whether Late Moinuddin Ahmed and Late Hafizuddin Ahmed were the original owners of the suit premises?
(8) Whether the defendant and whether heirs of Late Moinuddin Ahmed are the joint owners of the suit premises in occupation by virtue of family settlement deed which was given effect to in the year 1967?
(9) Whether the plaintiffs have got any right, title and interest over the suit premises?
(10) To what other relief, the parties are entitled under the law and equity?
6. During the trial, the plaintiffs adduced the evidence of two witnesses and exhibited 7 nos. of documents whereas the defendant examined three witnesses and also exhibited several documents in support of his claim. The Trial Court vide a judgment and decree dated 14.09.2004 decreed the suit in favour of the plaintiffs thereby ordering for ejectment of the defendant, his agents, Page No.# 6/20 dependents from the suit premises by removing all his goods, belongings etc. therefrom and for delivery of khas and vacant possession to the plaintiffs and also decreed for realization of Rs.1800/- on account of arrear rent from the month of March, 1986 to February, 1989 as well as the cost of the suit.
7. At this stage, it may be relevant herein to mention that as many as 10 (ten) issues were framed, the Issue No.4 relates as to whether the defendant is a monthly tenant under the plaintiffs. The Trial Court took up the Issue Nos. 2, 3 and 4 together and came to a finding that the defendant has executed Exhibit-1 and he is a tenant under the plaintiffs and have been paying rent vide Exhibit-2 and Exhibit-3 and as such the plaintiffs as landlord have rightly filed the suit. The Issue No.5 was as to whether the defendant is a defaulter in payment of rent which the Trial Court came to a finding that as there was no evidence led to the effect that there was any rent paid after April, 1985, the defendant was a defaulter from the month of May, 1985. In view of the decision in the Issue Nos. 4 and 5, the rest of the issues, more particularly the Issue Nos.6, 7, 8, 9 and 10 became inconsequential and was answered in accordance with the decision in respect to Issue Nos. 4 and 5.
8. Feeling aggrieved and dissatisfied, the defendant preferred an appeal before the Court of the Civil Judge, at Tinsukia which was registered and numbered as Title Appeal No.8/2004. The First Appellate Court after taking note of the grounds of objections so taken in the Memo of Appeal, framed two points of determination. The first point of determination was as to whether the appeal was barred by limitation and the second point of determination was as regards the decision in respect to Issue No.4. The First Appellate Court while deciding the point of determination No.1 which was the point on limitation as to whether the appeal was barred by limitation, came to a finding that there was a delay of Page No.# 7/20 3 days and there being no application filed for condoning the delay, the appeal was barred by limitation. On the second point of determination which was the determination of Issue No.4, the First Appellate Court confirmed the decision of the Trial Court holding inter alia that there was landlord tenant relationship between the plaintiffs and the defendant. On the basis of the decisions made as regards the said points for determination, the First Appellate Court dismissed the appeal by confirming the judgment and decree passed by the Trial Court. Feeling aggrieved and dissatisfied, the instant petition has been filed by invoking revisional jurisdiction of this Court under Section 115 of the Code.
9. Mr. P. K. Roy, the learned Senior counsel appearing on behalf of the Petitioner submitted that the First Appellate Court erred in law in deciding the point of limitation against the Petitioner in as much as the Appeal in question was filed within time. He further submitted that Exhibit-1 could not have been taken into consideration by both the Courts below on the ground that there was no pleadings to the effect about the existence of the said document and he submitted that it is a well established principle of law that there cannot be any evidence led beyond the pleadings. Mr. P. K. Roy, the learned Senior counsel further submitted that though the suit was filed in the year 1989 and the embargo imposed by the Code of Civil Procedure (Amendment) Act, 2002 in respect to Order VII Rule 14(3) was not there but referring to the provisions of Order VII Rule 18 as it stood prior to amendment, he submitted that when a document upon which the plaintiff sues is not brought on record at the time of the filing of the suit, the said document cannot be adduced into evidence without the leave of the Court. He further submitted that in the instant case, it would be apparent that there was no leave sought for and as such both the Courts below ought not to have taken into consideration Exhibit-1. He submitted Page No.# 8/20 that sans Exhibit-1 there was no case of the plaintiffs at all. The learned Senior counsel for the Petitioner further submitted that both the Courts below has exercised jurisdiction illegally with material irregularity by making the comparison of the signatures of Exhibit-1 with Exhibit-11 that too when the signature appearing in Exhibit-1 was seriously disputed by the defendant. He submits that it is well settled principle of law that Court should be slow in exercising jurisdiction under Section 73 of the Indian Evidence Act, 1872. Further to that, the learned Senior counsel also submitted that even without admitting and for arguments sake, if it is assumed that there was a landlord tenant relationship between the plaintiffs and the defendant, then also there is no finding as to when was the due date and as to when the rent would be lawfully due to bring in the provisions of Section 5(1)(e) of the Assam Urban Areas Rent Control Act, 1972 (for short the "Act of 1972") and without such a finding by both the Courts below, the impugned judgment and decree is liable to be set aside and quashed.
10. On the other hand Mr. S. Banik, the learned counsel appearing on behalf of the plaintiffs/Respondents submitted that the exercise of jurisdiction under Section 115 of the Code is very limited. He submits that even errors of law or fact unless it does not touch upon the exercise of jurisdiction, cannot be entertained in the proceedings under Section 115 of the Code. He submitted that there is a concurrent finding of fact on the basis of evidence on record that there is a landlord tenant relationship on the basis of Exhibit-1, Exhibit-2(2) and Exhibit-3 and these findings of fact arrived at cannot be interfered in a proceedings under Section 115 of the Code unless perversity can be shown which would have occasioned the failure of justice. The learned counsel for the Respondents further submitted that the submissions made by the learned Senior Page No.# 9/20 counsel for the Petitioner as regards Exhibit-1, being taken into consideration by the Trial Court, as well as the First Appellate Court does not require any interference inasmuch as not seeking the leave amounts to the manner of proving a document, which without therebeing an objection being put at the time of adducing the said document into evidence cannot be raised in appellate stage or even in the revisional stage. He further submitted that both the Courts below had the option either to exercise the jurisdiction under Section 45 or under Section 73 of the Indian Evidence Act, 1872 and both the Courts had exercised the jurisdiction under Section 73 and such exercise of jurisdiction under no circumstances can be said to be an exercise of jurisdiction in excess or illegally or with material irregularity. He further submitted that a perusal of the Trial Court judgment and more particularly Issue No.5 would clearly show that the Court below had come to a finding that till April, 1985, rent was duly paid and the default has occurred from the month of May, 1985 on account of the fact that there was no rebuttal evidence being produced. The learned counsel for the Respondents submitted that it is a well settled principle of law that it is the burden of the tenant to prove that he is not the defaulter and in the instant case the moment when the Court had arrived at the finding that there was a landlord tenant relationship and therebeing no evidence produced to the effect that there was a rent paid, the Trial Court rightly had come to a finding that from the month of May, 1985, there was a default in payment of rent. He further submits that the moment the tenant refutes the landlord tenant relationship and admittedly states that the question of making payment of rent does not arise and the Court came to a finding that there is a landlord tenant relationship, it would amount to an automatic and implied default in respect to payment of rent.
Page No.# 10/20
11. I have heard the learned counsels for both the parties and perused the materials on record including the judgments passed by both the Trial Court and the First Appellate Court.
12. Before entering into the facts of the case, it would be relevant to note that the petitioners have invoked the revisional jurisdiction under Section 115 of the Code of Civil Procedure. It is no longer res-integra that the revisional jurisdiction is limited in scope inasmuch as, the said jurisdiction cannot be exercised to correct errors of facts however gross or even errors of law, unless the said error have relation to the jurisdiction of the Court to try the dispute itself. A plain reading of Clauses (a) and (b) of Section 115 is in reference to exercise of jurisdiction by the Court not vested in the Court by law or has failed to exercise jurisdiction so vested in the Court. Clause (c) is in relation to exercise of jurisdiction illegally or with material irregularity. Therefore, under Section 115 of the Code of Civil Procedure, a jurisdictional question may arise not only when a Court acts wholly without jurisdiction but also in a case where jurisdictional errors are committed while exercising jurisdiction. There may be various facets of jurisdictional errors; for example, the finding arrived at is perverse, based on no evidence or misreading of the evidence or such finding has been arrived at by ignoring or overlooking the material evidence or such finding so grossly erroneous that if allowed to stand will occasion in miscarriage of justice. This limited scope is so permitted in view of the fact that the finding of fact recorded by the Court below, if perverse or has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. As held by the Constitution Bench of the Supreme Court in the Page No.# 11/20 case of Hindustan Petroleum Corporation Limited vs. Dilbahar Singh reported in (2014) 9 SCC 78, this Court in order to satisfy itself as regards the regularity, correctness, legality or propriety of the impugned decision or the order cannot exercise its power as an Appellate Court to re-appreciate or re-assess the evidence to a different finding of fact. This Court in exercise of its revisional jurisdiction is not and cannot be equated with the power of reconsideration of all questions of fact as a Court of First Appeal. In the backdrop of the above proposition the facts material for the adjudication of the disputes involved in the instant proceedings are taken up for consideration.
13. The first contention is in regard to the decision of the First Appellate Court in holding that the Appeal was barred by limitation by 3 days. The First Appellate Court held that as there was no application for condonation of delay, the Appeal was barred by limitation. This Court vide an order dated 04.08.2022 directed the Registry to produce the calendar of the Civil Court of Assam of the year 2004. Upon perusal of the said calendar and the holiday list produced as well as records of the Appellate Court, it transpired that the Appeal was filed on 16.11.2004. The judgment of the Trial Court was delivered on 14.09.2004. The certified copy was applied on 15.09.2004 and the certified copy was delivered on 13.10.2004. The calendar and the holiday list of 2004 of the Civil Courts upon being perused showed that the Civil Courts reopened on 16.11.2004 after the vacations. As the Appeal was filed on the date of reopening, the Appeal was filed within limitation. Under such circumstances, the finding of the Appeal being barred by limitation is erroneous and accordingly, the said decision of the First Appellate Court is interfered with.
14. The First Appellate Court, however went to decide the merits of the Appeal and upheld the judgment and decree of the Trial Court. In the backdrop Page No.# 12/20 of the above, let this Court take into consideration the contentions raised by the parties.
The contention so raised as to whether the Courts below were justified in taking Exhibit-1 into consideration on the basis that there was nothing specifically mentioned in the plaint as regards the Ekranama which is exhibited as Exhibit-1. A perusal of the plaint would show that in Paragraph Nos.1 and 2, there was specific mention to the effect that the defendant came into occupation of the suit premises on 01.04.1965 as a monthly tenant under the plaintiffs thereby agreeing to pay monthly rent of Rs.50/-. In Paragraph No.2, there is a reference made to some sort of an agreement between the plaintiffs and the defendant. In Paragraph No.3, there is a mention of tenancy agreement.
15. In the backdrop of the said statements made in the plaint, it can be said that there are pleadings enough to adduce the Exhibit-1 as evidence. In this regard, it would be relevant to take note of the provisions of Order VI Rule 2 of the Code which is quoted hereinbelow.
"Pleading to state material facts and not evidence.
2.(1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.
(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words."
A reading of Order VI Rule 2(1) stipulates that every pleadings shall contain only a statement in concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the Page No.# 13/20 evidence by which they are to be proved. In other words, it is not necessary to bring evidence on record or the details of the evidence on record in the pleadings. A further perusal of Order VI Rule 4 and 5 of the Code would clearly go to show that the Legislature has specifically mentioned the circumstances wherein particulars or better particulars are to be mentioned in the pleadings. A reading of Order VI Rule 4 would show that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence and in all other cases in which particulars may be necessary beyond such are exemplified in the forms in Appendix-A, the particulars (with dates and items if necessary) shall be stated in the pleadings. Rule 5 of Order VI stipulates that further and better statement of the nature of the claim or defence or further and better particulars of any matter stated in any pleadings, may in all cases be ordered, upon such terms as to cost and otherwise as may be just. It is also relevant to take note of that Appendix-A to the Code wherein various forms of pleadings are given, a conjoint reading of Appendix-A with Rule 2, 3, 4 and 5 of Order VI of the Code, in the opinion of this Court would not necessitate the requirement of stating the details of Exhibit-1 i.e. the Ekranama dated 01.04.1965 inasmuch as the plaintiffs have not filed the suit upon the said document but the plaintiffs' cause of action for filing the suit is on the basis that the defendant has defaulted in payment of rent, made certain constructions in violation to Section 108(p) of the Transfer of Property Act, 1882 read with Section 5(1)(a) of the Act of 1972. It would have been a different case if it was a suit so filed stating inter alia that the defendant had denied the tenancy. But the present suit was filed with a presumption that there was a landlord tenant relationship between the plaintiffs and the defendant. Consequently, it cannot be said that exhibiting Exhibit-1 was beyond the pleadings. In this regard, this Page No.# 14/20 Court finds it relevant to refer to the judgment of the Supreme Court in the case of Virender Nath Gautam Vs. Satpal Singh and Others reported in (2007) 3 SCC 617. Paragraph 50 of the said judgment is quoted hereinbelow.
"50. There is distinction between facta probanda (the facts required to be proved i.e. material facts) and facta probantia (the facts by means of which they are proved i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue."
16. The next contention is as regards the non-compliance to Order VII Rule 14 and 18 of the Code as it stood prior to the Code of Civil Procedure (Amendment) Act, 2002 on the ground that the Court below took into evidence Exhibit-1 without there being any leave sought for by the plaintiffs from the Trial Court prior to adducing the said document into evidence. For the purpose of deciding the said contention, this Court finds it relevant to quote the provisions of Order VII Rule 14 and 18 as it stood prior to the 2002 Amendment of the Code.
"Production of document on which plaintiff sues.
14. (1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.
List of other documents -
(2) Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint.
Inadmissibility of document not produced when plaint filed.
18. (1) A document which ought to be produced in Court by the plaintiff Page No.# 15/20 when the plaint is presented, or to be entered in the list to be added or annexed to the plaint, and which is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(2) Nothing in this rule applies to documents produced for cross- examination of the defendant's witnesses, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory."
A perusal of the provisions of Order VII Rule 14 of the Code as quoted above would show that in terms of Sub-Rule (1) of Rule 14, it is only when the plaintiff sues upon a document in his possession or power, the plaintiff shall produce it in Court when the plaint is presented and shall at the same time deliver the document or a copy thereof to be filed with the plaint. So what is the meaning to be ascribed to the words "the plaintiff sues upon a document" ? The meaning which can be ascribed in the opinion of this Court is/are those documents which are the basis of the suit. It however shall not include to those documents which are sought to be adduced as corroborative evidence in support of the claim made in the plaint. Sub-Rule (2) lays down that where the plaintiff relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, the plaintiff shall enter such documents in a list to be added or annexed to the plaint. Therefore, it would be seen that there is a marked difference in Sub-Rule (1) and Sub-Rule (2) in as much as only those document(s) upon which the plaintiff sues has to be produced whereas corroborative evidence to prove the claim by way of documents are to be entered in the list to be added or annexed to the plaint. In the instant case, this Court has already held that Exhibit-1 is not a document upon which the plaintiffs sued but was a document to be used as a corroborative evidence to prove the claim of the plaintiffs. Admittedly, the said Exhibit-1 was not entered in the list of the documents.
Page No.# 16/20 In the backdrop of the above, it is relevant to take note of Order VII Rule 18 of the Code as it stood prior to the 2002 Amendment as quoted hereinabove. A perusal of above quoted provision would show that the document which ought to have been produced in the Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint which was not produced or entered accordingly, shall not without the leave of the Court be received in evidence on behalf of the plaintiff at the hearing of the suit. It is on the basis of this particular provision i.e. Order VII Rule 18(1), the learned Senior counsel for the Petitioner submitted that as no leave was sought for in respect to Exhibit-1 which is the Ekranama, the same could not have been adduced as evidence and taken into consideration by both the Courts below. The answer to the said contention can be found in the judgment of Supreme Court in the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and Another reported in (2003) 8 SCC 752 wherein the Supreme Court at Paragraph No.20 observed that an objection to admissibility of an evidence should be taken when it is tendered and not subsequently. It was observed that an objection to the admissibility of documents in evidence may be classified into two classes, (i) An objection that the document which is sought to be proved is itself inadmissible in evidence; (ii) Where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. Paragraph 20 of the said judgment being relevant is quoted hereinbelow:
"20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras1 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct Page No.# 17/20 position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court."
17. Admittedly, Exhibit-1 was not put under objection for want of being adduced without seeking leave. The objection raised herein is as regards the mode of proof. Had the said objection being raised then and there, the plaintiffs would have had the opportunity of seeking the leave of the Court. Under such circumstances, the said objection to the admissibility of the Exhibit-1 cannot be Page No.# 18/20 taken into consideration either at a later stage once the said document in Exhibit-1 have been admitted into evidence in the trial or in the appellate stage or even before this Court in revisional stage. In view of the above, the submissions made by the learned Senior counsel for the Petitioner as regards the admissibility of Exhibit-1 in the opinion of this Court does not call for any interference.
18. The next contention so raised is as regards Section 73 of the Act of 1872 inasmuch as the Court ought not to have exercised the said jurisdiction but ought to have exercised the jurisdiction under Section 45 and referred it to handwriting expert. For the purpose of convenience, Section 73 is quoted hereinbelow:
"73. Comparison of signature, writing or seal with others admitted or proved.- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person."
19. A perusal of Section 73 of the Act of 1872 would show that the Court has the power to compare the words or figures so written with any words or figures alleged to have been written by such person. No doubt, it is well settled that the Court should be slow in exercising the powers under Section 73 of the Act of 1872 by itself but that does not divest the Court of the power to make comparison. In the instant case, not only the Trial Court had exercised the powers under Section 73 of the Act of 1872 but also by the First Appellate Court. The comparison of the signatures appearing in Exhibit-1 was made with Exhibit-11 (the written statement of the defendant) which were the admitted Page No.# 19/20 signatures of the defendant. The Petitioner surprisingly also did not seek for any scientific opinion through the Court for comparing the signatures of Exhibit-1 with Exhibit-11 either before the Trial Court or even at the First Appellate Court. Under such circumstances, the exercise of jurisdiction by the Trial Court as well as by the First Appellate Court under Section 73 cannot be said to be an exercise of jurisdiction in excess or illegally or with material irregularity.
20. Further, the contention so made by the learned Senior counsel for the Petitioner is to the effect that there being no finding of due date, the question of default in payment of rent under Section 5(1)(e) of the Act of 1972 does not arise. In the instant case, as it would be seen from a perusal of the pleadings of the defendant that he has specifically denied the right, title and interest of the plaintiffs over the suit property. It has been further stated in his pleadings that as the defendant was the joint owners of the suit land alongwith the heirs of Late Moinuddin Ahmed, the question of tendering rent to the plaintiffs did not arise. Both the Courts below have concurrently came to a finding that there is a landlord tenant relationship between the plaintiffs and the defendant. The denial of tenancy or the title of the landlord may not ipso facto, be a ground of ejectment under the Act of 1972 but the moment when the landlord tenant relationship is proved, burden automatically shifts upon the tenant to prove that there was no default in payment of rent.
21. In the instant case, it would also be relevant to take note of the discussion as regards Issue No.5 by the Trial Court wherein the Trial Court has come to a finding that the plaintiffs have alleged that after April, 1985, there was no tendering of rent and the Trial Court came to a finding that the defendant having failed to tender any evidence to the effect that after May, 1985, had tendered rent, the defendant was a defaulter in payment of rent. This Court is Page No.# 20/20 of the opinion that once the Court comes to a conclusion that there is a landlord tenant relationship, the burden automatically falls upon the tenant to prove that he is not a defaulter in payment of rent. The findings of both the Courts below as regards landlord tenant relationship, in the instant case are findings of fact and sans any perversity being shown, this Court confirms the said finding. As admittedly, there was no evidence led to the effect that the defendant tendered or paid rent after May, 1985, the defendant had been rightly held to be a defaulter in payment of rent.
22. In view of the above observations, this Court is of the opinion that this case is not a fit case for exercise of jurisdiction under Section 115 of the Code for which the petition deserves to be dismissed.
23. Consequently, the instant revision petition stands dismissed.
24. Return the LCR to the Court below.
JUDGE Comparing Assistant