Chhitij Kishore Sharma vs Mahesh Chandra Pant

Sharad Kumar Sharma, J

This is a defendant's Second Appeal, arising out of the judgement dated 13.11.2009, as rendered by the learned trial Court in Suit No. 63 of 2006, Shri Mahesh Chandra Pant v. Shri Chhitij Kishore Sharma, whereby the Suit of the plaintiff-respondent for recovery of the rent due to be paid to him by the defendant-appellant to the tune of Rs. 59,500/- (Rupees Fifty Nine Thousand Five Hundred Only) was decreed. Subsequent thereto, the defendant-appellant being aggrieved against the judgement invoked Section 96 of the Code of Civil Procedure and has preferred the First Appeal before the District Judge/Special Judge (EC Act), Nainital, being Civil Appeal No. 38 of 2009, Chhitij Kishore Sharma v. Mahesh Chandra Pant. The said appeal was dismissed by the judgement dated 20.09.2013 thereby had affirmed the decree of the trial Court.

Being aggrieved against the two judgements concurrently rendered by the learned Courts below, holding the defendant liable to pay the defaulted amount of rent of Rs. 59,500/-, the defendant/appellant has preferred the present Second Appeal, the same has been instituted by the appellant on 19.12.2013. The Appeal came up for consideration before the coordinate Bench of this Court for admission and the coordinate Bench of this Court, after considering the argument extended by the learned counsel for the appellant had admitted the Appeal by the order dated 11.08.2014, framing the following substantial question of law to be involved and answered at the final stage of hearing of the Second Appeal:

"Whether both the courts below have erred in disbelieving the payment of rent by the tenant disregard of acceptance of sum by the landlord in the oral testimony wherefor he did never issue the rent receipt to the tenant?"

The plaintiff had instituted the Suit on 14.12.2006, praying for the decree for recovery of the rent due to be paid along with interest @ 12 percent per annum. The grounds narrated in the Suit in question was to the effect that he happens to be an exclusive owner of the property in question i.e. the disputed tenement, which was never denied by defendant/appellant, after the same being declared as freehold in his favour. On 19.09.2002, pursuant to the declaration in favour of the plaintiff, the sale deed has been executed in favour of the defendant/appellant of part of the building called as "Prem Niwas, Bara Pathar, Ayarpata, Mallital, Nainital".

The defendant as per the pleading raised was shown to have been inducted as a tenant in March, 2005, in three rooms, one kitchen and a bathroom and a latrine. The rent settled and due to be paid by the defendant/tenant was @ Rs. 3,500/- per month. It is the case of the plaintiff that despite of due notice and request made by him to defendant for remittance of rent w.e.f. June, 2005, the defendant have defaulted in paying the same, consequently, he was constrained to issue a legal notice to him on 03.10.2006 demanding the rent due to be paid to the plaintiff from June, 2005 to October, 2006. The said notice as sent on 03.10.2006, is pleaded to have been served on defendant on 12.10.2006. It is contended by the plaintiff that despite of service of notice, instead of paying the rent due towards the tenement as demanded by the notice dated 03.10.2006, the defendant had rather vacated the premises on 29.10.2006, and by getting the electric and water connection disconnected. Since the vacation took place on 29.10.2006 but the possession by defendant/appellant was maintained till 31.10.2006, hence he claimed that after service of notice on him on 03.10.2006, he was entitled to be remitted back with a rent of Rs. 59,500/- due to be paid to him for the defaulted period.

In response to the plaint allegations, as submitted by the plaintiff/respondent, the defendant filed his written statement on 03.06.2007 and had denied the averments of plaint primarily on two grounds; one that the defendant had, in fact, remitted the entire rent due to be paid to the plaintiff from time to time, but rather no rent receipt was issued to him by the landlord. Consequently he had contended that no rent as claimed by the landlord till 29.10.2006 fell to be due to be paid to him. Secondly, he submitted in his additional plea that the theory raised by the plaintiff-landlord with regard to remittance of rent cannot be believed, because even thereafter the landlord himself has agreed to sell a certain portion of the property, for which the sale consideration was paid by the defendant/appellant in part from time to time, and if at all any rent was due to be paid quite obviously he would not have executed the sale deed of the property agreed to be sold by him. Consequently, he submitted that in past no default has been committed by him and the Suit is the best example of malicious prosecution and deserves to be dismissed.

While the suit was proceeding, the parties to the suit led their respective evidences and in particular, in the given set of case, the evidence, which would have been essential for consideration would be the establishment of the mode and manner in which the rent due to be paid to the plaintiff was remitted by the defendant. In fact, this Court is of the view that the defendant could not have been shifted upon with the burden to prove that the rent was not paid to the plaintiff as that would amount to forcing the plaintiff to lead the negative evidence which is not permissible under law.

The factum that the defendant/appellant had paid the rent in accordance with the provisions contained under Section 103 of the Indian Evidence Act, the burden of proof was to be discharged by the defendant himself that he had paid the rent for the amount as claimed by the plaintiff to have been defaulted in remittance of rent. After filing of the written statement Paper No. 24 Ka, the plaintiff has filed the replication statement Paper No. 28Ka and denied the defendant's allegations.

In support of his contention, the plaintiff had produced the list of documents by way of list 7 Ga, and as many as 5 documents were placed on record. Apart from that he also appeared in the witness box as PW1 and adduced an independent evidence of one Mr. Lalit Singh as PW2 and one Mr. Mohan Singh Rawat as PW3. In response to the evidence, which has been recorded by the learned trial Court that apart from DW1 i.e. defendant himself appearing in the witness box, no other documentary evidence was relied by him to show or to establish the fact of the remittance of rent to the landlord-plaintiff, which was otherwise was to be discharged by the defendant by proving that he had been timely remitting the rent as and when it had fallen due.

On exchange of the pleadings, the following issues were framed by the learned trial Court in the following manner:-

क्या प्रतिवादी की ओर वादपत्र में वर्णित धनराशि रू 59,500/-वाजिब है? यदि हॉं तो प्रभाव।

क्या वादी द्वारा वर्तमान वाद बिना किसी वाद-कारण दायर किया गया है? यदि हॉं तो प्रभाव।

अनुतोष?''

Primarily, looking to the set of controversy, the learned trial Court was concerned with the settlement of controversy as involved in while deciding issue No. 1 as to whether at all the defendant was liable to pay the rent as claimed by the plaintiff and as to whether the defendant/appellant was a defaulter. The second issue was pertaining to as to whether the plaintiff has got the cause of action to institute the Suit in question. Admittedly, the learned trial Court, while deciding issue No. 1 had considered the import of Paper No. 69 Ga/1 to 69 Ga/4, which was the income tax returns of the plaintiff/respondent, which was produced by him in his evidence, wherein it was shown that for the period in question i.e. from June, 2005 to October, 2006, the rent was not remitted by the defendant/appellant and it was due to be paid by him. His contention was that on the basis of the entries of the income tax return filed by the plaintiff/respondent, which were produced by way of income tax return in relation to the period of default, he had been able to establish that the defendant had not remitted the rent for the aforesaid period.

The learned trial Court has recorded the finding to the effect that the defendant had failed to discharge his duties to produce any documentary evidence or any other independent evidence by way of recording of an oral testimony to show that he had remitted the rent. The learned trial Court while considering the implications on issue no. 1 had recorded a finding that in the light of the ratio as propounded in ARC 1993 (2) 39, Sukhanand v. The IVth Additional District Judge, Bulandshahar and others, wherein the ratio, which has been propounded therein was to the effect that in those cases, where the landlord initiates the proceedings on the ground of default committed by the defendant, the burden to prove that the rent was duly paid and there was no default was to be discharged by the defendant, which, in the instant case, the defendant/appellant committed had utterly failed to prove by producing any independent documentary evidence before the trial Court to show the mode of payment or by producing any income tax return for seeking deductions nor any receipt was placed on record to show that rent was paid for the so-called pleaded defaulted period showing having remitted the rent at the rate at which it was agreed to be paid by the defendant to the landlord-plaintiff.

The issue No. 2, pertaining to the cause of action was also decided in favour of the plaintiff, because when despite of due notices issued on 03.10.2006, the defendant/appellant had chosen to vacate the premises and had not remitted the rent, he was ultimately held to be a defaulter and the rent was also held out to be paid to the tune of Rs. 59,500/- and the Suit was decreed by the judgement dated 13.11.2009.

Being aggrieved against he said judgement, the defendant-appellant has preferred an Appeal under Section 96 of the Code of Civil Procedure on various grounds which was almost a reiteration of the facts, which was pleaded by him in the suit itself. Precisely, the ground taken in the First Appeal too was based on the fact of there being a lack of cause of action for the plaintiff to institute the suit, hence that itself was barred by the provisions of Order 7 Rule 11 and further that the plaintiff/respondent has failed to prove that when was last rent, was paid to him by the defendant. After considering the contentions raised by the rival parties, the learned appellate Court too vide its impugned judgment dated 02.09.2013 as rendered in Civil Appeal No. 38 of 2009, Chhitij Kishore Sharma v. Mahesh Chandra Pant had dismissed the Appeal and affirm the judgement of the learned trial Court.

The learned Appellate Court too, while considering the impact of issue No. 1 which related to the remittance of rent had concurrently recorded the finding that looking to the quantum of evidence which has been led by the plaintiff/ respondent to show that there happens to be a default in the payment of rent and defendant/appellant was liable to pay the defaulted amount of Rs. 59,500/-. Even before the learned Appellate Court too, the defendant-appellant had also reiterated his stand taken in the written statement as filed before the learned trial Court. The learned Appellate Court had also reiterated the same issue as framed by the learned trial Court. Apparently, as per the evidence led by the respective parties, the defendant/appellant had not produced any document on record to show the mode and manner in which the rent was remitted by him to the landlord-plaintiff, nor he had proved by any documents being brought on record nor had made efforts to show that the rent which was claimed by defendant/appellant to have been remitted for the residential accommodation in question, he has ever sought an exemption for payment of income tax by seeking necessary deductions.

The learned Appellate Court too vide its judgment dated 20.09.2013 had accepted the propriety and the reasoning assigned by the learned Appellate Court and had dismissed the appeal in question, consequently affirming the judgement of learned trial Court and making the defendant liable to pay the defaulted rent as determined by the judgement dated 13.11.2009.

It would not be out of place to mention that on considering the records it was found by this Court that at this stage itself that when the defendant/appellant was issued with the notice of demand, contended to be under Section 106 of the Transfer of Property Act, the plaintiff-respondent had specifically narrated his demand and had also explained the default which has been caused by the defendant/appellant. At this stage, it would also be relevant to consider that the notice dated 03.10.2006 and the reply which was given to it by the defendant on 29.10.2006 numbered as Paper No. 9C. In the reply thus submitted as Paper No. 9C by the plaintiff on 20.10.2006, after having gone through its contents this Court is of the view that the argument extended by the learned counsel for the appellant that the entire rent stood paid to the plaintiff was a fact which was neither proved nor established by the defendant nor formed part of reply to notice issued under Section 106 of the Transfer of Property Act in the light of the provisions contained under Section 103 of the Indian Evidence Act. The reason being that apart from the pleadings to the effect that no rent receipt was issued by the landlord, the defendant/ appellant tried to shy away to extend the appropriate reply with regards to as to how and by which the mode and manner the rent was remitted. Rather at the first opportunity of response on 20.10.2006 to the notice, the learned counsel for the defendant-appellant had only submitted that the appellant used to pay the rent in advance and nothing was due to be paid by the defendant/appellant.

This plea as taken in the reply cannot be sustained and argument extended is not acceptable for the two reasons; one - invariably, whether in the rent control proceeding either by way of proceedings drawn under the Rent Control Act or in any proceedings by way of a regular suit, the burden to prove the payment of rent has had to be discharged by the defendant/appellant who admittedly was the tenant, by producing the receipts issued by the landlord accepting the factum of remittance of rent. On scrutiny of the reply submitted by the defendant/appellant, though he submits that he has remitted the rent but no rent receipt was issued to him, but he has not pleaded in the reply to notice in any manner whatsoever as what was the mode of payment of rent to the landlord/respondent. Even if it was a payment in cash, then too the appellant must have accounted for it to avail the benefit of deduction in income tax; but as far as the evidence led by the plaintiff/respondent pertaining to the non-remittance of rent and the fact, which ought to have been discharged by the defendant/appellant that the rent stood remitted by him was not proved before the learned trial Court. Thus, the learned Appellate Court too held that once the defendant had been unable to prove the mode and manner in which the rent was remitted, a presumption will be drawn that the rent was not paid by the defendant/appellant and he had committed a default in the remittance of the same.

Even if the reply submitted by the defendant is scrutinized, he had simply in the reply had submitted that there is no default but has not produced any documentary evidence, which he ought to have produced showing its remittance, because the presumption, which is being drawn is that if the appellant had deposited the rent, it must have been accounted for in his income tax returns; but the same has not been the foundation of his defence before the Courts below.

The other argument, as extended by the learned counsel for the defendant to the effect that since there happened to be a civil dispute as against the plaintiff, the present proceedings happens to be a malicious proceedings and barred by Order 7 Rule 11, this contention is not accepted by this Court because if the defendant-appellant in his written statement has taken a stand that there was no cause of action for the plaintiff to institute the suit or the suit suffered from the vices of provisions contained under Order 7 Rule 11, then too it was a burden which was to be discharged by the defendant/appellant himself, which he had failed to discharged. Even so much so, at the time when the learned trial Court was framing the issues and if according to him this was one of the bone of contention arising out of the interse dispute with regard to sale of part of the property by the plaintiff to the defendant in that eventuality, to get findings returned and evidence considered by the Court an appropriate issue ought to have been sought to be framed by invoking the provisions contained under Order 14 Rules 3 and 4. The records of both the Courts below do not reveal that ever at any stage or point of time, the defendant had made any efforts to get the issue decided pertaining to the implications under Order 7 Rule 11 nor he had ever attempted to get an issue framed in that regard. Even the evidence which was adduced by the defendant in support of his contention pertaining to remittance of rent and non issuance of receipt by the landlord, it was only an oral testimony of the defendant, who had appeared before the trial Court as DW1 which was the foundation. In fact, there was no other oral independent evidence, which was adduced by the defendant/appellant to establish the factum of remittance of rent in cash.

Even, let us presume for the time being that the defendant had remitted the rent in cash, then it goes without saying that he ought to have accounted for it while submitting his income tax returns to get the necessary deductions. No such evidence either receipt of rent or income tax returns was ever led by the defendant-appellant to prove the same and consequently, the learned Appellate Court too affirmed the judgement of learned trial Court by dismissing the Appeal, holding thereof that the defendant had defaulted in remitting the rent.

After having said so for the reasons given above, this Court is now bound to answer the substantial questions of law, on which this Appeal was admitted. The substantial questions pertaining to belief or disbelief of payment of rent, which was exclusively based upon the oral testimony of the defendant only and the philosophy of non issuance of rent receipt by the landlord, as a matter of fact, is a mix question of facts and law. For the purposes of giving it a legal shape, there ought to have been the burden to be discharged by the defendant under Section 103 to show the mode and manner in which the payment has been made. Since that was not even the ground pleaded in the reply submitted by the defendant on 29.10.2006, this Court is of the opinion that no such substantiation question of law on which the Appeal has been admitted, is required to be answered by this Court, since the Appeal is concluded by concurrent finding of facts recorded by both the Courts below, this Court does not find any merit in the Second Appeal and the same is accordingly dismissed.