Gauhati High Court
Kailash Singh vs Hiralal Dey on 30 March, 1993
Author: S.N. Phukan
Bench: S.N. Phukan
ORDER S.N. Phukan, J.
1. This revision petition under S, 115 read with Section 151, CPC is by the tenant against the judgment and decree dated 9-12-86 of the first appellate court viz. Asstt. District Judge, Tezpur in Title Appeal No. 14 of 1983 dismissing the appeal by the present petitioner and up-holding the decree for ejetment passed by the learned Munsiff No. 2 tezpur in Title Suit No. 9 of 1980.
2. There is no dispute that the present petitioner-defendant was a monthly tenant in respect of the suit premises at a monthly rent of Rs. 50/- plus Rs. 5/- per month as electric charge and the tenancy was according to English Calendar month. Plaintiff has alleged that the monthly rent of Rs. 55/- was payable on the 1st day of each following month according to English Calendar month. Plaintiff started a shop in the suit premises. According to plaintiff after April, 1979, the defendant did not pay any rent and became a defaulter. It' has also been pleaded that the suit room is required by the plaintiff for his own use and occupation. Thereafter a notice of ejectment dated 27-12-79 was issued by the plaintiff on the defendant asking him to quit and vacate with effect from 1-2-80. The claim for arrears of rent due till the month of January, 1980 was put forward in the notice and the relationship of the landlord and tenant with effect from 1-2-80 was terminated. As the suit premises was not vacated the present suit was filed praying for a decree for ejectment of the defendant and also for recovery of rents amounting to Rs. 450/- from May, 1979 to January, 1980. Plaintiff has also claimed Rs. 100/- as mesne profits from 1-2-1980 to 20-2-1980 and future mesne profits @ Rs. 5/- per day.
3. The suit was contested' by the defendant by filing a written statement. According to defendant the rent was payable after it became due and/ or being demanded from the 'defendant by the plaintiff or his agent" or representative and accordingly he used to pay rent whenever such a demand was made. In view of this procedure for payment of rent, there used to be accumulation of rent for several months and defendants used to pay whenever demanded was made by the plaintiff or his agent. It has been denied that there was any agreement that the rent was payable per month as alleged by the plaintiff. Accordingly defendant has denied that he was a defaulter. It has also been denied that the suit house was required by the plaintiff for his own use and occupation or by the members of his family and there was no bona fide requirement. In the written statement, it has been stated that there was pressure on the defendant to vacate the suit premises and as a result, the plaintiff illegally and wrongfully disconnected electricity with effect from June, 1977. In para 3 of the written statement a specific plea has been taken that the plaint was not signed and verified according to law and without correct particulars of the suit premises.
4. The learned trial court on pleadings framed the following issues viz:--
1) Whether there is cause of action?
2) Whether the plaint has been signed and verified according to law?
3) Whether the suit is bad for waiver, estoppel and acquiscence?
4) Whether the defendant is defaulter as alleged by the plaintiff?
5) Whether the suit premises is required by the plaintiff?
6) Whether the plaintiff is entitled to a decree as prayed for?
7) Whether the plaintiff's suit is false and vexatious and defendant is entitled to get compensation under Section 35A of C.P.C: as prayed by him?
8) To what other relief or reliefs the parties are entitled?
5. I have heard Mr. Khetri, learned counsel for the petitioner and Mr. Sarma learned counsel for the opposite party.
6. Mr. Khetri has urged before this court four issues viz. issue Nos. 2, 3, 4 and 5.
7. Let me first take up the issue No. 2 i.e. whether the plaint was signed and verified according to law. In this connection learned counsel has drawn my attention to the relevant portion of the judgment of the learned lower appellate Court wherein the court held that the appellant i.e. the petitioner herein did not challenge the signature of the plaintiff to the plaint when he deposed as P.W. 1 before the tiral court and moreover, the signatures of the plaintiff in the plaint as well as in the 'deposition paper' and in the Vakalatnama show that the plaint was signed by him. According to learned counsel, learned lower appellate court erred in law in personally verifying the signatures in these documents.
8. In this connection, the attention of this court has been drawn to 2 decisions of this court rendered in Bhawrilal Goenka v. Shyampada Das, (1990) 2 Gauhati LR(NOC) 10 and Alauddin v. Sisir Kumar Dutta, (1987) 2 Gauhati LR 299 : (AIR 1989 Gauhati 42).
9. In Bhawrilal Goenka (supra) a single Bench of this court held regarding signature that where the matter rested only or even substantially on such comparison, the courts should not make their own opinion on the basis of finding on the disputed signature, inasmuch as, in that case there was no other evidence on this count.
10. In Alauddin, (AIR 1989 Gauhati 42) (supra) according to learned single Judge there is no legal bar for the Judge to use his own eye to compare the disputed writing with admitted writing under Section 73 of the Evidence Act i.e. the court can apply its own observation by comparing the signature of handwriting for giving a decisive weight or influence but by doing so the court does not become an handwriting expert. According to learned single Judge there is a mode of ascertaining the truth, the Court does not play the role of an expert and the opinion of the court is also not conclusive.
11. There cannot be any dispute about the above law laid down in the above decisions of this court. But on perusal of the impugned judgment of the lower appellate court I find that the main contention on which the court rejected the plea was that the plaintiff himself was present, but he was not cross-examined by the defendant on this point. Of course I must record that according to Mr. Khetri, the onus is on the plaintiff to state that the signature in the plaint was his signature. But I am unable to accept the contention of Mr, Khetri, inasmuch as, after evidence was adduced the point has to be decided on the basis of preponderance of evidence.
12. Plaintiff was present in the witness box. If the signature was not his on the plaint or verification, he would have definitely deposed and prayed for correction of the plaint. That apart, he completely supported the statements made in the plaint. Therefore, I am unable to take a contrary view in this regard.
13. Mr. Sarma relying on Section 99, C.P.C. has urged that even assuming the plaintiff did not put his signature on the plaint and the written statement, it was a curable defect and on this ground the plaint cannot be rejected. In reply Mr. Khetri has submitted that reading Order 4, Rule i with Rules 14 and 15 of Order 6, C.P.C. if the plaint is not properly signed and verified it has to be rejected. To determine this question I have to examine whether Order 6, Rules 14 and 15 are mandatory or directive.
14. Section 99 is very clear that no decree shall be reversed or substantially varied on the ground of non-joinder or mis-joinder of parties or causes of action or any error, defect or irregularity in any proceeding not affecting the merit of the case or jurisdiction of the court. Although according to Mr. Khetri this section does hot include signing and verification of the plaint, I am of the opinion that] the expression "any error, defect or irregularity in any proceeding in the suit" will also include signing and verification of the plaint as laid down in Rules 14 and 15 of Order 6, C.P.C. In this connection attention of this court has been drawn by Mr. Sarma to a decision of the Punjab and Haryana High Court in Smt. Mukhtiar Kaurv. Smt. Ghulab Kaur, AIR 1977 Punj & Har 257. In that case, the plaint and the verification was not signed by the plaintiff, but by his lawyer. But the plaintiff in the witness box supported all the averments made in the plaint. The court observed that the counsel for the plaintiff was presumed to be acquainted with the facts of the case. So the verification of the plaint made by him can be accepted. Moreover, it is a defect which only amount to an irregularity and can be ignored for rejecting the plaint. It was also held that legal position is that want of verification has not the effect of making the plaint void and it merely amounts to an irregularity. Regarding signing of the pleadings although the High Court recorded that decisions are not uniform, the prominent view is that irregularity in signature of a plaint is a mere defect of procedure and does not affect the jurisdiction of the Court.
15. I am in respectful agreement with the above law laid down by the Punjab and Haryana High Court. In my view we have come to a stage in our jurisprudence where we should not be tied down with procedural technicalities. But we should try to do substantial justice to the parties. In the case in hand it would be unfair and unjust to reject the plaint merely on the ground that the plaint was not properly signed and/or verified as plaintiff himself came to the witness box and made out the case in the plaint.
16. It may also add here that Mr. Sarma has placed reliance on two decisions, namely, Dahyabhai v. Bobaji Dahyaji Kotwal, AIR 1953 Bom 28 and Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani, AIR 1955 SC 610. In Dahyabhai (supra) Hon'ble Chief Justice Changla of Bombay High Court (as his Lordship then was) held that if a plaint is not signed by a properly authorised person, prayer can be allowed for signing a plaint by the plaintiff even after limitation. In Bhikaji Keshao (supra), the Apex Court while considering Section 83(1) of the Representation of the People Act, 1951 vis-a-vis Order 6, Rule 15, C.P.C. held that even if there was absence of date in the verification of the election petition, it would not be a good ground for dismissing the application and normally the petitioner should be allowed to remove the lacuna by adding a supplementary verification. Though these two decisions are not directly on the point, 1 am only referring to these two decisions to show that provisions of Order 6, Rule 15, C.P.C. are not mandatory, but directory in nature. I, therefore, hold that Order 6, Rule 15, C.P.C. is not mandatory and any defect can be cured at any stage.
17. Now the next question which I want to consider as raised by Mr. Sarma, regarding jurisdiction of this court in a revision petition in view of the concurrent finding of facts by the court below. 1 may note here that learned counsel has placed reliance in a recent decision of the apex court in Masjid Kachatan, Nahan v. Tuffail Mohammed, 1991 Supp (2) SCC 270 : (AIR 1991 SC 455) wherein the apex court reiterated the settled law that under Section 115, C.P.C. the High Court cannot reappreciate the evidence and cannot set aside the concurrent findings of the courts below by taking a different view of the evidence and that the High Court is empowered only to interfere with the findings of fact if the findings are perverse or there has been non-appreciation or non-consideration of the material evidence on record by the courts below.
18. Mr. Sarma has placed reliance in support of the contention regarding revi-sional power of this court in the decision of the Apext Court in Matlula v. Radhe Lal, AIR 1974 SC 1596. From paragraph 131 find that the Apex Court is of the view that error was committed by the District Judge on relying on two circumstances in support of the findings of fact reached by him and it was held that it would not entitle the High Court to interfere with the findings in second appeal and set aside the findings of fact so long as there was some evidence to support it and it could not be branded as arbitrary, unreasonable or perverse. This bar was laid down in respect of the Second Appeal before the High Court.
19. In Smt. Jahejo Dcvi v. Moharam Ali, AIR 1988 SC 411, the Apex Court held in respect of a judgment by the High Court in a Second Appeal that High Court would not be justified in interfering with the concurrent findings of fact since the lower courts had not committed any irregularity. The Apex Court found that both the trial court and the first appellate court had acted on the basis of need and as such it cannot be said that the courts below committed any such irregularity, which could have been interfered witli by the High Court in Second Appeal.
20. From the above ratio, it is clear that normally the finding of facts of the court below is binding on this court both in Second Appeal as well as revision petition unless the finding is perverse unreasonable, irrational and not based on evidence or other similar grounds. But while exercising revisional jurisdiction, this court can definitely interfere if while arriving at the finding the learned courts below committed any jurisdictional error. Now let me examine whether there was any jurisdictional error in the case in hand.
21. Firstw question to be determined is regarding defaulter. Admittedly the rent was not paid by the tenant on the first or second day of the succeeding month. Clause (a) of Sub-section (1) of Section 5 of the Assam Urban Areas Rent Control Act, 1972 provides for one of the ground on which the landlord can get a decree for ejectment and the said ground is non payment of rent by the tenant within a fortnight of its falling due. The question of due date under this clause is definitely can be decided by the revisional court in view of the law laid down by this court as well as the Apex Court. Therefore, let me consider whether in arriving at the question of default the courts below rightly held about due date.
22. It may be stated that the defendant-tenant could not adduce evidence and his prayer for adducing evidence was rejected. His further prayer before the learned lower appellate Court was also rejected and in doing so the court below took into consideration that at the time of trial the defendant took 12 adjournments. Though Mr. M. Khetri has urged that the courts below erred in refusing adjournments I do not find any scope to interfere with this order of rejection inasmuch as the reasoning given by the court below is just and proper.
23. It may be stated that according to written statement rent was payable only when it was demanded by the landlord. The learned lower appellate Court after taking into consideration the rent receipts, Exhibits 1(1) and (2) and Ka and Kha came to the conclusion that the rent used to be paid after 23 months on demand. Thereafter, the learned court also took into consideration the Treasury Challan by which the rent was paid subsequent to the month of December. However, subsequently rent was paid in court only after an order was passed by this Court while considering the stay petition filed along with the present revision petition.
24. It is settled law that the court can also take note of subsequent events. From the above facts, it is absolutely clear that from December, 1979 arrear rent was not paid till order was passed by this court. This fact itself will show that the defendant was a defaulter even if it is accepted that due date was from the date of demand by the plaintiff. I say so in view of the fact that notice demanding arrear rent vide Exhibit-2 was received by the defendant on 7-1-1980, but no rent was paid. This notice Exhibit 2, can be treated as demand and even if it is accepted that due date was the date of demand, rent was not paid by the tenant within 15 days from the date of receipt of this notice. Therefore, on this ground, it cannot be held that the finding of the courts below on the point of defaulter was neither erroneous nor perverse.
24-A. Mr. Khetri has placed reliance on the 2 decisions of this court, in Upendra Nath Paul v. P. Sen & Company, (1990) 1 Gauhati LR 418. Single Bench of this court after considering the earlier decision held that a tenant cannot be treated as defaulter if rent is paid by the tenant as per his convenience and accepted by the landlord as it was the agreement due to past practice. Similar opinion was also expressed in Tilokchand Bajaj v. Madanlal Kabra, (1991) 2 GL.T 185.1n both the cases the tenant used to pay rent according to his convenience. But in the case in hand the specific plea of the defendant was that rent was paid by him only when demanded. I have already stated that even in spite of demand, the rent was not paid.
25. Now we come to the question of bona fide requirement. In the plaint only a statement has been made that the suit premises was urgently required by the plaintiff for his use and occupation. In this case except the plaint no other oral or documentary evidence was adduced. Mr. Khetri has placed reliance in the above decision of the Apex Court in Mattulal, (AIR 1974 SC 1596) (supra) wherein it was held, with reference to M.P. Accommodation Control Act (41 of 1961), that mere desire of the landlord that he requires the suit premises is not sufficient and there should be an element of need and the landlord must show that he genuinely requires the accommodation for his own use and occupation. I may state here that a lot of stress has been given by Mr. Khetri regarding the word 'bona fide' by drawing my attention to Clause (c) of Subsection (1) of Section 5, According to Mr. Khetri this word has not been stated cither in the plaint or in the evidence.
26. I am of the opinion that merely because the word 'bona fide' has not stated in the plaint, it cannot be a ground to reject the case of the plaintiff. Whether on the evidence on record, bona fide requirement was made out or not, it is the court to decide. I may add here that as laid down by the Apex Court mere statement that the suit premises is required for his own use may not be sufficient and in addition the landlord has to prove something to prove his bona fide requirement.
27. According to Mr. Sarma this being a question of fact, the concurrent finding of both the courts below is binding of this court. I am unable to accept the contention of Mr. Sarma inasmuch as bona fide requirement is a basic requirement for obtaining a decree by landlord under the present rent law and as such if the finding is not according to law laid down, it will amount to jurisdictional error and this court can definitely interfere.
28. As stated above except the oral statement of the plaintiff there is nothing to show that the suit premises is required by the plaintiff for his bona fide use. It has also come out from the evidence on record that plaintiff wants to start his business in the suit room and he has got other tenants, but no action has been taken to evict them. Therefore, I do not find that the learned courts below correctly held that there was bona fide requirement for the plaintiff-landlord, thereby committed a jurisdictional error, I say so as the finding is also perverse inasmuch as the learned lower appellate Court also misinterpreted the evidence of plaintiff, P.W. 1 by holding that he requires the suit premises for his umbrella business. Such a statement was not made in examination-in-chief, but only in cross-examination, such a suggestion was given on behalf of the tenant. That apart, the fact that the plaintiff has other houses rented out, was not given due importance.
29. For the reasons stated above, 1 am unable to accept the finding of the courts below regarding bona fide requirements.
30. As I have found that the tenant-petitioner was a defaulter, the present petition is liable to be rejected.
31. In the result, the petition is dismissed and the impugned judgment and decree are upheld. No costs.