Madhya Pradesh High Court
Nawab Saheb vs Firoz Ahmed on 22 April, 2002
Equivalent citations: 2002(3)MPHT414, 2003 A I H C 544, (2002) 3 MPHT 414
Author: Dipak Misra
Bench: Dipak Misra
JUDGMENT Dipak Misra, J.
1. The present second appeal at the instance of the plaintiff/appellant is against the judgment and decree dated 7-11-1996 passed by the learned Additional District Judge, Khandwa Camp at Burhanpur in Civil Appeal No. 8/94 whereby he has confirmed the judgment and decree dated 7-10-1994 passed by the learned IInd Civil Judge, Class-II, Burhanpur in Civil Suit No. 107-A/94 wherein the learned Trial Judge had dismissed the suit for eviction and recovery of rent.
2. The plaintiff instituted the aforesaid suit under Section 23 of the M.P. Accommodation Control Act, 1961 on the grounds of bona fide requirement and non-payment of rent. There was also the prayer for recovery of rent and grant of damages. The plaintiff's case before the learned Trial Court was that he had purchased the suit property from the original title holder, Shyamlal by registered sale-deed dated 8-6-1983 and the defendant was a tenant under said Shyamlal at the time of purchase of the property. Plaintiff after purchase of the suit property intimated the defendant about the acquisition of the title and thereafter served a notice determining the tenancy. He had also raised a demand for the unpaid rent which the defendant was liable to pay under the law. A further stand was taken by the plaintiff that the premises in question was required by him as he wanted to start a business in the premises. Various grounds were urged in the plain to justify the bona fide need of the plaintiff. The amount of claim which was putforth for realisation was Rs. 1237/-. The plaintiff also prayed for damages at the rate of Rs. 90/- per month till the delivery of possession.
3. The defendant filed his written statement controverting the stand of the plaintiff and disputed the ownership. According to the defendant the suit property belonged to Burhanpur Municipality and Shyamlal was only a 'Pattadar' under the Municipality and his possession was founded on limited right and he had no authority to transfer the property in favour of the plaintiff. The defendant also controverted about the notice whereby the plaintiff had intimated him about his right, title and interest over the disputed premises. A reference was made to the condition of the lease to highlight that Shyamlal was not entitled under the law to create any kind of right by way of transfer in favour of any third party. The defendant also refuted to be a tenant in respect of the premises in question. It was the stand of the defendant that he had never paid the rent to the plaintiff. It was his case that he got the possession of the premises in question from one Mayuddin and the ownership still rests with the Municipality in question. The bona fide need of the plaintiff was categorically controverted by the defendant.
4. The learned Trial Judge considering the rival stands of the plaintiff as well as the defendant framed as many as seven issues. On consideration of evidence brought on record the learned Trial Judge came to hold that the Court had the jurisdiction to decide the lis in question; that Burhanpur Municipality was not a necessary party to the litigation; that the plaintiff having not filed the documents relating to transfer of the title in his favour it can not be decided that he was the title holder having purchased the property from Shyamlal; that Shyamlal did not have the power to transfer the property inasmuch as the premises belongs to Municipality; that there is no relationship of landlord and tenant between the parties inasmuch as Shyamlal could not have transferred any interest in favour of the tenant; that the plaintiff is not entitled to realise the amount from the defendant and he is not entitled to any relief. Being of this view the learned Trial Judge dismissed the suit of the plaintiff.
5. Being aggrieved and dissatisfied with the judgment and decree passed by the learned Trial Judge the plaintiff preferred an appeal. Before the Appellate Court it was urged that the learned Trial Judge has not taken into consideration the admission of the defendant that he was tendering rent to Shyamlal who had sold the suit property in favour of the plaintiff and he had not disputed about the intimation that the petitioner had become the owner of the premises in question. It was also urged before the Appellate Court that an application under Order XIII Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as 'the Code') to tender the sale-deed was preferred but the same was rejected by the Original Court and Revisional Court has affirmed the same and as the said document was essential for just adjudication of the lis, it should be taken into consideration. It was also contended that though the matter has been rejected in revision it could be agitated in appeal. The learned Appellate Judge in this factual backdrop addressed itself into three aspects, namely, whether after adjudication in civil revision the Appellate Court could address itself with regard to the validity of non-acceptance of said document in appeal; whether there is relationship of tenant and landlord between the parties; and thirdly whether the judgment and decree passed by the Court below warrant any interference. Upon hearing the learned Counsel for the parties the Appellate Court came to hold that as the registered sale-deed had not been brought in evidence and the prayer was negatived in revision it could safely be concluded that there is no relationship of tenant and landlord between the parties, more so when the tenant had never paid rent to the plaintiff. Being of this view the Appellate Court dismissed the appeal.
6. At the time of admission of second appeal this Court framed a singular substantial question of law which reads as under :--
"Whether the Courts below are right in dismissing the plaintiff's suit on the ground that he is not the landlord ?"
7. Before I advert to the said issue it is apposite to mention here that an application forming the subject-matter of I. A. No. 178/97 under Order 41 Rule 27 of the Code was filed and this Court by order dated 4-12-1999 had directed that the said application would be considered at the time of final hearing. When at the time of hearing of the appeal the said issue arose Mr. P. Dharmadhikari, learned Counsel for the appellant and Mr. Dharmesh Bhatt, learned Counsel for the respondent addressed this Court at length.
8. Mr. Bhatt raised a preliminary objection that the document which is sought to be brought on record as an additional evidence is the registered sale-deed dated 8-6-1983 executed by Shyamlal which was sought to be filed at a later stage in the suit taking recourse to Order 13 Rules 1 and 2 but the prayer was negatived and the said order was affirmed in Civil Revision No. 18/90 by the Revisional Court and hence, the same can not be taken into consideration under Order 41 Rule 27 of the Code. Mr. Bhatt has submitted that the Revisional Court gave the stamp of approval to the same on 13-1-1994 and the plaintiff had accepted the said order and, therefore, the present petition is not to be taken into consideration and the judgment and decree of the Courts below are to be allowed to stand.
9. Mr. P. Dharmadhikari, learned Counsel for the appellant has submitted that both the Courts below have been influenced by the fact that the document was not brought on record on earlier point of time and in revision it was put to finality and, therefore, the ownership of the plaintiff was not proved. It is put forth by him that under Section 74 of the Evidence Act it is a public document and could have been taken into consideration while disposing the point of ownership but the Courts below have grossly erred in law in not placing reliance and came to the conclusion that in absence of admission of the tenant that he was paying the rent there is no relationship of landlord and the tenant. It is apposite to mention here that on the basis of these grounds the Appellate Court adverted to the legal spectrums which have been indicated hereinabove.
10. Before I advert to the relationship of landlord and tenant it is worthwhile to deal with the application preferred under Order XLI Rule 27 of the Code. It has been averred in the memorandum of appeal that defendant had admitted that when the plaintiff had purchased the premises in question from Shyamlal his former landlord no adducing of any proof for title was essential. In the said application it has been mentioned that the sale-deed was brought at a belated stage and it is the material piece of evidence for just decision of the appeal. Contextually it is necessary to reproduce the provision enshrined under Order XLI Rule 27 :--
"Order XLI Rule 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."
11. On a reading of the aforesaid provision it is quite clear that if a particular document is necessary for the just decision of the case there is no justification not to accept the said document as a piece of evidence. This view of mine gets fortified from the decision rendered in the case of The State of Madhya Pradesh v. Sardarmal, AIR 1987 MP 156. In this context I may also profitably refer to the decision rendered in the case of Syed Abdul Khader v. Rami Reddy and Ors., AIR 1979 SC 553, wherein their Lordships expressed the view that when the Appellate Court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands, it may, admit the additional evidence. I may also profitably refer to the decision rendered in the case of The Municipal Corporation of Greater Bombay v. Lala Pancham and Ors., AIR 1965 SC 1008, wherein their Lordships expressed the view as under:--
"..... No doubt, under Rule 27 the High Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the High Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the Appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the Appellate Court is empowered to admit additional evidence....."
12. In this regard it is worth mentioning here that one of the salient aspect which arises for consideration by the Court is impact and effect of evidence sought to be adduced is likely to have importance in controversy and if it likely to affect the material at any point arisen at the appeal, such evidence should be permitted to be adduced. This view of mine gets support from the Division Bench decision of this Court rendered in the case of Bharat Bhushan Bhargav v. Chandra Mohan, 1982 MPLJ 239.
13. The Gujarat High Court in the case of Savitaben Ishverlal v. Surat Municipal Corporation, AIR 1985 Gujarat 174, expressed the view that the power to allow the additional evidence may be exercised when any point is required to be cleared in the interest of justice. In the case of Chandra Shekhar Pal v. Musmat Tapoi and Anr., AIR 1986 Orissa 130, the emphasis was laid on the concept that the new evidence should have a direct and important bearing on a main issue in the case.
14. In the case of Billa Jagan Mohan Reddy and Anr. v. Billa Sanjeeva Reddy and Ors., (1994) 4 SCC 659, the Apex Court expressed the view that if the document is found to be relevant to decide the real issue in the controversy and when the Court felt that interest of justice requires the documents may be received exercising the power under Order XLI Rule 27 of the Code and the Appellate Court would receive the documents and consider the effect thereof.
15. In the case of N. Kamlan and Anr. v. Ayyasamy and Anr., (2001) 7 SCC 503, a two Judge Bench of the Apex Court has expressed the view that the Appellate Court can permit allowing such additional evidence which would enable it to pronounce the judgment.
16. In the case at hand the registered sale-deed which is admissible in evidence and is a public document under Section 74 of the Evidence Act would have been accepted as an additional piece of evidence. I may note here that in the case of Vasudeo v. Tikaram, 1994 (1) MPWN SN 198, this Court held that a registered sale-deed is a public document under Section 74 of the Evidence Act. But, a pregnant one, whether this Court should accept the prayer to take the same into consideration as an additional evidence when the revision as Court had rejected the same to be taken on record and when the revision was preferred from an order negativing the prayer of the plaintiff to take the documents on record under Order XIII Rules 1 and 2 of the Code. Mr. Bhatt, learned Counsel for the defendant has seriously opposed the prayer by the plaintiff/appellant and placed reliance on a Division Bench decision rendered in the case of Babulal Verma v. Bhawtinand Guru, 1983 MPWN SN 229, wherein the Division Bench came to hold as under :--
"In the written statement a dispute about the rent was raised. The Trial Court had directed the defendant vide its order dated 16-4-1966 to deposit the rent at the rate of Rs. 1,401/- per month and arrears also by 5-5-1966, the question came up before this Court in Civil Revision Nos. 532 and 642 of 1966. These revisions at the instance of the defendant were filed challenging the interlocutory order passed by the Trial Court rejecting his prayer for fixation of reasonable provisional rent and striking out the defence under Section 13(6) of the Accommodation Control Act on account of tenant's failure to deposit arrears of rent in pursuance of the direction of the Trial Court dated 16-4-1966. This Court while disposing of the revisions held that the defendant had impliedly agreed to pay rent and arrears as ordered by the Court and he first sought time and then came out with a false case that he had already paid the arrears as well as the future rent up to the year 1969. This Court, therefore, dismissed the revision and upheld the order of the Trial Court regarding striking of the defence for non-payment of rent and arrears at the rate of Rs. 1,401/- per month.
17. Submission of Mr. Bhalt is that when the controversy is put to rest this Court in appeal can not look into the said aspect and, therefore, the application filed under Order XLI Rule 27 deserves to be dismissed. It is proponed by him that the earlier order passed at an earlier point of time would operate as res judicata. The aforesaid submission of Mr. Bhatt requires a careful consideration. It is not disputed at the Bar that an application was filed under Order XIII Rules 1 and 2 of the Code before the Trial Court and the said application was rejected and the said order of negation was affirmed in civil revision and the order passed by the learned District Judge as at the relevant time the civil revision was heard by the learned District Judge. The salient issue that falls for determination is whether this Court in second appeal is debarred to consider the application for additional evidence because of the order passed in civil revision. The submission of Mr. Bhatt is that once it has been decided in revision the same can not be agitated in an appeal. He has drawn the inspiration from the decision rendered by this Court in the case of Babulal Verma (supra). The learned Counsel would have been absolutely correct if the civil revision would have been dismissed by this Court but as has been admitted at the Bar and is manifest from the Lower Court record the civil revision was dismissed by the learned District Judge. The said facet makes a world of difference. In this context, Mr. Piyush Dharmadhikari has placed reliance on the decision rendered in the case of Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr., AIR 1960 SC 941, wherein their Lordships in Paragraph 16 held as under:--
"16. It is clear therefore that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order. A special provision was made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not later be challenged in an appeal from the final decision. If however an appeal did not lie from the order of remand the correctness thereof could be challenged by an appeal from the final decision as in the cases of other interlocutory orders. The second sub-section did not apply to the Privy Council and can have no application to appeals to the Supreme Court, one reason being that no appeal lay to the Privy Council or lies to the Supreme Court against an order of remand."
18. Mr. P. Dharmadhikari has also placed reliance on the Division Bench decision rendered in the case of Shyamacharan Raghubar Prasad v. Sheojee Bhai Jairam Chhatri, 1964 MPLJ 502, wherein the Division Bench placed reliance on number of decision including the decision rendered in the case of Sathyadhyan (supra) and came to hold as under :--
"13. The judgment of the Supreme Court in Sathyadhyan's case (supra) makes it clear that an interlocutory order is final as regards the Court making that order. But its correctness can be challenged in an appeal from the final decree or order even though no appeal had been filed against the interlocutory order either because none lay or because even though an appeal lay none was filed. On the principles laid down by the Supreme Court in Sathyadhyan's case there can be no doubt that the order of Bhargava, J., dated the 26th October, 1962 made in C.R. No. 385 of 1962, was final as regards this Court. Its correctness could not be challenged in this Court. It could be challenged only before the Supreme Court in an appeal from the decree....."
19. Mr. Dharmadhikari has also commended me to the decision rendered in the case of M.P. Bhaya v. Ram Prakash Sharma, 1997 (2) MPLJ 436, wherein the suit was instituted for eviction on certain grounds and the Trial Court struck off the defence of tenant for not depositing the rent. The said order was assailed in the revision and the learned District Judge directed the tenant to file an application before the Trial Court on the ground that since he had deposited the rent penalty the striking out defence may be withdrawn, The Trial Court rejected the application filed by the tenant. The second revision was preferred which was also dismissed on merits, Eventually the suit was decreed. The learned Trial Court dismissed the appeal on the ground it was bound by the order of Revisional Court in second revision as the principles of res judicata applied. In this back drop the learned Single Judge came to hold that once the learned District Judge had decided the application on merits the Appellate Court which is a Court of co-ordinate jurisdiction could not set aside the finding in exercise of appellate jurisdiction. The learned Single Judge had referred to the Division Bench decision rendered in the case of Shyamacharan Raghubar Prasad (supra) and opined that the Division Bench has clearly ruled that in interlocutory matter would not be binding on the Higher Court. While so saying the learned Single Judge in Paragraph 11 held as under :--
"11. Although no question of law was specifically framed by this Court and nor did the Counsel for parties address on this question, it is clear from the aforesaid discussion of the Division Bench that judgment of the learned District Judge would not be binding on this Court in this second appeal, if the law in the meanwhile has not changed. By Amendment of 1976 in the Code of Civil Procedure new provisions have been added. Section 11 of the Code of Civil Procedure is also amended. It is open to a party to argue that the decision of a Court of limited jurisdiction in view of Explanation VIII to Section 11 of the Code of Civil Procedure, would be binding even on Superior Court. This would be a moot point. However, no attempt was made by the Counsel for the appellant to get a new substantial question of law framed or even address the Court on this point at the time of final argument. This Court is unable to express any considered opinion on this point."
20. I have referred to the aforesaid paragraph to show that the learned Single Judge has expressed the view that the judgment of the District Judge in revision would not be binding on this Court in second appeal. While so saying the learned Single Judge has also stated that in view of certain amendment in the Code one may contain that the decision of the Court of limited jurisdiction would be binding even on Superior Courts. To have a sense of completeness it is apposite to refer to Explanation VIII to Section 11 of the Code. It reads as under :--
"Explanation VIII.-- An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised."
The aforesaid amendment was brought into existence by Act No. 104 of 1976. It is apposite to mention here that before the aforesaid explanation was inserted different High Courts have been taking different view. The position of law as understood in praesenti is that even if a Court of limited jurisdiction is competent to decide the issue it operates as res judicata. To give certain examples, if a land Tribunal has jurisdiction to decide certain issues the finding on that score would operates as res judicata in civil suit. Similarly a finding recorded by the House Rent Controller which is a Court of limited jurisdiction in regard to the existence or non-existence of relationship of landlord and tenant would operate as res judicata in a subsequent suit in Civil Court. This is the view which has been taken by the High Court of Orissa in the case of Maneka Devi v. Dhadi Madgni, AIR 1987 Orissa 74. For the purpose of attracting the doctrine of resjudicata in these kind of cases what has to be seen is the existence of jurisdiction of the Court of limited jurisdiction. A House Rent Controller who has no jurisdiction to decide title but records a finding with regard to title, the said finding would not operate as res judicata in a suit filed for declaration of right, title and interest. From the aforesaid it is plain as noon day that the decision rendered by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit. The said explanation would not be attracted when a particular prayer has been negatived by a Court and an appeal is filed against the decree. As far as the said Court is concerned the said finding operates as res judicata at subsequent stages but the concept of subsequent stage would not engulf a stage in appeal which is heard by a Superior Court. Indubitably if a finding is recorded by a Co-ordinate Court in a proceeding, a different finding can not be given while exercising appellate jurisdiction but Explanation VIII to Section 11 of the Code would have no role to play and in my considered view in spite of the amendment by addition of Explanation VIII the Division Bench's decision of this Court rendered in the case of Shyamacharan Raghubar Prasad (supra) still holds good. At this juncture I may profitably refer to an unreported decision rendered in case of Anand Gadre v. Smt. Gotnti Bai (since deceased) others (L.P.A. No. 13/1992) wherein the Division Bench of this Court followed the decision rendered in the case of Shyamacharan (supra). In the ca.sc of Anand Garde (supra) an order allowing the amendment received the stamp of approval in civil revision by this Court and hence, it was held that the same was binding on this Court as it was the decision by the Co-ordinate Court. In view of the aforesaid pronouncement of law, I experience no difficulty to arrive at the conclusion that the order passed in civil revision by the learned District Judge refusing to entertain the application under Order XIII Rules 1 and 2 of the Code docs not create any impediment or remora to entertain an application under Order XLI Rule 27 of the Code. 21. I have already dealt with the concept of Order XLI Rule 27 of the Code. The suit of the plaintiff was dismissed solely on the ground that title had not been proved and hence, there was no relationship. The registered sale-deed was sought to be brought on record as an additional evidence. Undoubtedly it is a certified copy of the sale-deed and, therefore, it is a public document. Hence, it can be accepted as evidence. As the factual matrix shows this is an essential document to put the controversy to rest. Thus it is accepted in evidence and marked as Exhibit 6.
22. The next question that falls for consideration is whether by acceptance of this document, judgment and decree passed by the Courts below become susceptible. The learned Counsel for the appellant has submitted that the plaintiff has purchased the property from Shyamlal, Whether Shyamlal had limited right or not is not the issue. He had transferred the same in favour of the appellant. The Courts below have recorded a finding that there is no relationship of tenant and landlord between the parties. This finding is based as no title was shown by the plaintiff and defendant did not admit the tenancy. On a perusal of the sale-deed it is clear that the plaintiff had purchased the right from Shyamlal. Thus, the title is established. As far as the defendant's version is concerned, he himself has admitted that he had paid the rent to Shyamlal up to the year 1984 but thereafter he had not paid. He had admitted in his evidence that Shyamlal inducted him as a tenant which is quite categorically and unequivocally clear from his examination-in-chief. Once he has admitted that he was the tenant of Shyamlal and the present plaintiff had purchased the rights from Shyamlal and issued a notice to the tenant, the finding of the Courts below that there is no relationship of landlord and the tenant is vulnerable and can not be given the stamp of approval more so in view of the aforesaid evidence has been kept on record. As far as the bona fide requirement is concerned, the finding has been recorded in favour of the plaintiff. Thus the plaintiffs suit for eviction is bound to succeed and accordingly the judgment and decree of the Court below on that score are set aside and the plaintiff's suit is decreed.
23. As far as the grant of recovery of rent is concerned the Trial Court has not given much emphasis on that as the tenant had disputed the relationship. But there is no dispute with regard to rate of rent. As the controversy pertaining to title is put to rest the plaintiff is entitled to the arrears of rent as well as damages as prayed for.
24. Consequently, the second appeal is allowed and the judgment and decree of the Courts below are set aside and the suit of the plaintiff is decreed. However keeping in view the totality of circumstances of the case it is directed that the parties shall bear their respective costs through out.