The second argument centered around the finding on issue No. 1. The defence of the appellant had been struck out by an order of the court the court, which became final. If the defence is struck out, the remedy left to a tenant is the following, as held in Modula India v. Kamakshya Singh Deo, AIR 1989 SC 162 Para 12:--
"Even in a case where the defence against delivery of possession of a tenant is struck off underSection 17(3) the defendant tenant, subject to the exercise of appropriate discretion by the court on the facts of a particular case, would generally be entitled (a) to cross-examine the plaintiffs witnesses; and (b) to address argument on the basis of the plaintiff's case. However, when the defendant is afforded the aforesaid right, he would not be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weakness of the plaintiff's case. In no circumstances should the cross-examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses."
In view of the aforesaid decision of Hon'ble Supreme Court, though the defence had been struck off, the appellant was not precluded from demonstrating to the court that the plaintiffs' witnesses were not speaking the truth and the evidence put forward by him was insufficient to establish that the appellant was a defaulter.
Rajasthan High Court
Pit Ram Singh vs Vimla Devi on 14 November, 1991
Equivalent citations: AIR 1992 Raj 149, 1992 (3) WLC 636
Bench: K Agrawal
1. This First Appeal under Section 96 of the Code of Civil Procedure has been preferred by the tenant against the judgment and decree of the trial court decreeing the suit for eviction, arrears of rent and directing the appellant to hand over the possession of the shop in question to the plaintiff-respondent.
2. The appellant -- Pit Ram Singh was the tenant of the shop in dispute belonging to Smt. Vimla Devi -- respondent. She filed a suit on the following three grounds :--
1. that the tenant was in default of rent for a period of more than six months;
2. that he had sub-let the tenament to Jai Narain chaudhary and
3. that the shop in question lay unused for more than 10 months when the suit was filed.
On the aforesaid three grounds, trial court framed three issues. Issue No. 1, on which the suit was decreed, was whether the defendant had not paid rent for the period from 11-9-1982 to July, 1985. The second and third issues were to the effect as to whether the defendant had stopped business by subletting the shop. Second and third issues were decided against the plaintiff whereas issue No. 1 was decided in her favour.
3. On filing the suit, an application under Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the 'Act') was filed by the plaintiff-respondent for payment of rent for the period involved in the suit together with interest. The rent was determined at the rate of Rs. 150 per month by the trial court for the period from Sept. 11, 1982 to Sept. 10, 1985 amounting to Rs. 9,000/-along with interest at the rate of 6 per cent, per annum. Under Section 13(4), the appellant could deposit in court the amount determined by the court under Section 13(3) within 15 days from the date of such determination. The tenant, however, did not comply with the said requirement. Upon the tenant's failing to deposit the rent referred to in Sub-section (4) of Section 13, the consequence mentioned in Section 13(5) is as under:--
"If a tenant fails to deposit or pay any amount referred to in Sub-section (4) on the date or within the time specified therein, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit."
Section 13(1)(a) reads as under:--
"(1) Notwithstanding anything contained in any law or contract, no court shall pass any decree, or make any order, in favour of a landlord whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied --
(a) that the tenant has neither paid nor tendered the amount of rent due from him for six months;"
4. Learned counsel for the appellant opened his submission by contending that even if the appellant was held to be a defaulter, but as he was ready and willing to pay the rent of the shop let out to him, he would not be liable to be evicted. Readiness or willingness, however, has to be demonstrated by showing that the tenant was prepared to comply with the provisions of Section 13 of the Act and willing to pay the rent. In the instant case, the order under Section 13(4) was made long time back but the tenant, at no point of time, deposited the rent in the trial court and it is on account of his failure to do so that a decree of Rs. 9000/- towards arrears of rent for the period from 11-9-1982 to 10-9-1985 was passed.
5. This position was not disputed by the learned counsel for the appellant. He, however, urged that as the rent had been paid during the pendency of the present appeal in this court, he should be deemed to have complied with the requirement of demonstrating and establishing his readiness and willingness. This submission of the learned counsel is not correct. In order to stall the execution of the decree, he deposited some rent in terms of the stay order and, therefore, he cannot plead that he was ready and willing. Willingness and readiness have to be seen in the context of Section 13(1) of the Act. Consequently, merely because the appellant deposited rent, which was a condition of the stay order, he cannot take the plea that no decree for eviction could be passed by the trial court under Section 13(6).
6. The second argument centered around the finding on issue No. 1. The defence of the appellant had been struck out by an order of the court the court, which became final. If the defence is struck out, the remedy left to a tenant is the following, as held in Modula India v. Kamakshya Singh Deo, AIR 1989 SC 162 Para 12:--
"Even in a case where the defence against delivery of possession of a tenant is struck off underSection 17(3) the defendant tenant, subject to the exercise of appropriate discretion by the court on the facts of a particular case, would generally be entitled (a) to cross-examine the plaintiffs witnesses; and (b) to address argument on the basis of the plaintiff's case. However, when the defendant is afforded the aforesaid right, he would not be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weakness of the plaintiff's case. In no circumstances should the cross-examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses."
7. In view of the aforesaid decision of Hon'ble Supreme Court, though the defence had been struck off, the appellant was not precluded from demonstrating to the court that the plaintiffs' witnesses were not speaking the truth and the evidence put forward by him was insufficient to establish that the appellant was a defaulter. In the instant case, the respondent produced her husband as a witness as he was the holder of power of attorney. Although, not appearing of the plaintiff-respondent herself as witness was also urged before me as a ground to defeat the decree of the trial court, but I am not prepared to accept the submission that mere absence of plaintiff-respondent to appear in the witness box, could be of any consequence. A court would like a party to appear in the witness box if a certain fact is in his personal knowledge. In the instant case, that does not appear to be so. From the facts and circumstances of the present case, it appears that Smt. Vimla Devi must not have been transacting with the tenant and her husband could safely be relied upon for stating the facts about the default in payment of rent by the appellant. The statement of the husband of Smt. Vimla Devi was accepted by the trial Court by finding that the appellant was in default and had not paid the arrears of rent despite service of notice of demand and the order made under Section 13(4) of the Act. I have also gone through the statement of Satya Narain, the husband of the plaintiff-respondent and find the same on scrutiny that it was truthful, consistent and was thus, reliable. I fully agree with the conclusion of the court below that the non-payment of arrears of rent, for which the suit had been filed, was fully established.
8. Criticism of the learned counsel for the appellant, however, was that as Bahikhatas had been filed by the appellant, the same should have been relied upon and not discarded on flimsy and scanty grounds, as was done by the trial Court. I have already pointed out above that the defence of the appellant had been struck off and result of striking out the defence would be that the appellant could not refer to his evidence for establishing his claim in respect of payment of rent. In this regard, following paragraph from the 'Halsbury's Laws of England-Fourth Ed. at page 57' is relevant :--
"The power so to order is complementary to the jurisdiction to stay or strike out any action under the inherent jurisdiction of the court. Although no evidence is admissible on an application invoking the rule, if the summons additionally invokes the court's inherent jurisdiction evidence may be filed, and all the relevant facts considered. The practice is not to consider this evidence until the question whether or not on the face of the pleading some reasonable cause of action or defence, as the case may be, is disclosed has been determined.
.....
If the court concludes that the pleading or any part of it should be struck out, the court will consider whether there is sufficient justiciable issue remaining; if there is not, the court will direct the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be."
9. The influence and importance of pleadings is pervasive throughout all the stages of an action, and thus pleadings play a central, if not predominating part in civil litigation. The very nature and character of pleadings demonstrates their significant and overwhelming importance, for the attention of the parties as well as the court, is naturally focused on and rivetted to the pleadings as being the nucleus around which the whole case revolves throughout all its stages. But, in the present case, as the defence was struck off, the case of the defendant-appellant that rent had been paid, had vanished and it could not determine the range of admissible evidence which could be led by the appellant and they had lost the efficacy of providing a guide to proper mode of trial. Alternatively, the court below examined threadbare oral and documentary evidence adduced by the defendant-appellant and came to the conclusion that the Bhaikhatas produced by him for proving the payment of rent, were unreliable and suspicious. An entry in Bahikhata is an admission by the maker thereof in his own favour and it is accepted as evidence only if it strictly complies with the requirements of being kept regularly and in the ordinary course of business. The words 'regularly kept' mean account kept in accordance with certain fixed method or form referring to system. Section 34 of the Evidence Act although dispenses with the formal proof that the accounts were kept in the regular course of business, it is a matter of intrinsic evidence as to whether the books in question were books of account and regularly kept in the course of business. In the instant case, the court below has examined the books of account and found them to be unreliable having not been regularly maintained. The reasons for not relying has been elaborated in the judgment and I am since in agreement with the same, do not consider it necessary to write it in this decision. The rule in Section 34 of the Evidence Act is subject to the salient proviso that such entries shall not alone be sufficient evidence to charge any person with liability. It is further incumbent upon the person relying upon those entries to prove that they were made in accordance with facts. In Chandradhar Goswami v. Gauhati Bank Ltd., AIR 1967 SC 1058, it was held that mere entries from Bank's books of account or mere copies thereof are not sufficient to charge person with liability except where person concerned accepts correctness of entries. In the instant case, there are inherent flaws in the books of account. They were not maintained in the regular course of business and that the defendant-appellant came in the witness box, but could not establish the payment entered into the same. This is clear from the inconsistency in his deposition. He admits "SATYA NARAIN KO JO KAPDA DIYA USKA PURA BIBRAN BILON MEIN HAI. VO BILL MAINE PESH NAHIN KIYA....."
10. Briefly the case of the defendant-appellant was that the cloth had been supplied to Satya Narain, husband of the plaintiff-respondent for the amount of rent and that the amount was mentioned in the bills but these bills were not produced. This statement establishes that the bills which could have some evidentiary value to establish the case of the defendant-appellant, were not coming forth and were withheld. The Court below, therefore, rightly concluded that the defendant-appellant miserably failed to prove the theory of payment, taken up in the written statement.
11. Another important fact, which is established by the own showing of the defendant-appellant is that he admitted that Satya Narain, the husband of the plaintiff-respondent was dealing with the transaction and in view of this admission, the grievance of the learned counsel for the appellant that respondent did not enter into witness box is meaningless.
12. After striking out the defence, the Court below was not called upon to deal with the case of defendant-appellant on merits by looking into and considering the evidence, as law did not require it, as held in the case of Madula (Supra). But if the Court below had done so, even then the judgment cannot be set aside. Learned counsel for the appellant urged that the Court below had wrongly thrown the entire burden of proof of nonpayment of rent on the defendant. The submission is not correct. It had considered the case on merits and by examining the evidence, found that plaintiff proved that the defendant was in arrears of rent for more than six months and that it failed to comply with the order passed under Section 13(4) of the Act. In that view of the matter, decree of ejectment had to be passed.
13. In the result, the appeal fails and is dismissed with costs. The appellant is given six months time from today to vacate the shop and hand over the possession of the same to the plaintiff-respondent with the condition that the appellant would regularly pay the rent to the plaintiff-respondent at the agreed rate.
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