Jagan Nath vs Shri Arjan Singh Kalsi and Others

Dua, J.—These (Civil Revisions No. 521 of 1963 and No. 522 of 1963) are two connected revisions u/s 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (Act No. 3 of 1949), and arise out of eviction proceedings by the landlords against the tenant (Petitioner in this Court).

It is unnecessary to state full facts giving rise to the controversy. Suffice it to say that the learned Rent Controller passed the order of eviction on the 29th of March 1963 against the tenant on the basis of his failure to pay or tender the rent due by him.

On appeal the appellate authority disposed of the appeals with the following observations which appear to be the real basis of its decision:-

As already stated Smt. Gopal Kaur has denied that she had received the payments or executed or signed the receipts in dispute. One of the three disputed receipts (Exhibit R. 2) has been attested by two persons who were examined by the Appellant before the learned Rent Controller, but she did not feel impressed by their evidence. She had the advantage of seeing the demeanour of these witnesses while under examination and her assessment of their testimony should not be lightly ignored. Both these witnesses had social or business dealings with the Appellant as would be natural in a case where a party has to fabricate a document in collusion with some others. He would naturally select persons who could be depended upon to support him in Court and if it is shown that all the attesting witnesses stand in a position of confidence with respect to one party while the other party enjoys no such advantage then the Courts would be rather careful in accepting the testimony of the witnesses having dealings with only one of the parties.

It then proceeded to deal with the Appellant''s argument that the landlords would not have allowed arrears of rent to accumulate for so many months, but this submission was considered to be fallacious because Exhibit R. 2 itself purported to be in respect of eight months'' rent and on previous occasions also rent for long periods remained unpaid.

On revision before me it has been contended that the appellate authority should have itself discussed the evidence and come to an independent conclusion and not disposed of the appeal virtually on the basis of the conclusion of the Rent Controller. The learned Counsel for the Respondents has, on the other hand, submitted that it is wholly unnecessary to discuss the other evidence on the record and that if the receipt (Exhibit R. 2) is not held to be a genuine document, then default in payment of rent would be conclusively established and this default would amply1 justify the order of eviction. As regards the decision in respect of Exhibit R. 2 the learned Counsel has submitted that the appellate authority was justified in adopting the conclusion of the Rent Controler on the question of fact, since no special feature was pointed out to it for taking a different view.

After devoting my earnest attention and thought to the arguments addressed, in my view the appellate authority should have itself considered the evidence led in the case and come to its own conclusions I am not for a moment doubting the view expressed by the Judicial Committee of the Privy Council and by the Supreme Court that the appellate tribunal has to bear in mind that it does not enjoy the opportunity of seeing and hearing the witnesses and that the view of the original tribunal in case of conflicting testimony as to where credibility lies is as a matter of practice entitled to great weight. I am merely pointing out that the tribunal of first instance should not be treated as infallible in determining which side is telling the truth or is refraining from exaggeration ; like other tribunals it may also go wrong on a question of fact. It is indisputably a cogent circumstance that a tribunal of first instance when estimating the value of verbal testimony has the advantage of having the witnesses before it and discerning the manner in which their evidence is given. There is also some authority for the view that it is not incumbent on the original tribunal in order to attract the rule of practice mentioned above to expressly base its conclusion upon the impression gathered by it from the demeanour of witnesses. The duty of the appellate authority, as I understand, is that in such cases it should see whether the evidence taken as a whole can reasonably justify the conclusion arrived at by the original tribunal or whether there is an element of improbability arising from proved circumstances which in its opinion out weigh the finding of the tribunal below, for it must never be ignored that the appellate jurisdiction is statutory ; and the statute before Us does not in terms lay down any limitation on the scope of appeal.

At this stage I consider it appropriate to refer to a decision of a Bench of three Judges of the Supreme Court in Radha Prasad Singh Vs. Gajadhar Singh and Others, in which, after referring to several decided cases, including Privy Council decisions, and the Supreme Court decision by Fazil Ali, Mahajan and B.K. Mukherji JJ. in Sarju Pershad Vs. Raja Jwaleshwari Pratap Narain Singh and Others, , K.C. Das Gupta J., speaking for the Court, put the legal position thus ;-

The position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the Appeal Court to consider what its decision on the question of facts should be ; but in coining to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the trial Judge''s conclusion that the evidence of a parti-ocular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanour of the witness in Court. But this, does not mean that merely because an Appeal court has not heard or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record, when it appears to the Appeal Court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial Judge is wrong, the Appeal Court should have no hesitation in reversing the findings of the trial Judge on such questions. Where the question is not of credibility based entirely on the demeanour of witnesses observed in Court but a question of inference of one fact from proved primary facts the Court of Appeal is in as good a position as the trial Judge and is free to reverse the findings if it thinks that the inference made by the trial Judge is not justified.

The learned appellate authority in the instant case appears to have ignored the legal position as enunciated above.

I further consider it necessary to point out that the orders of the appellate authority in cases under the Punjab Rent Act are for all practical purposes final so far as conclusions of fact go, because this Court on revision would not lightly upset those conclusions. The revision provided by the Act is also, generally speaking, discretionary however wider its scope than of a revision u/s 115, CPC Code, may be. It is, therefore, incumbent on the appellate authority to deal with every case which comes before it on appeal with a full sense of responsibility attaching to a final Court of fact.

For the foregoing reasons I am constrained to allow these revisions and setting aside the order of the learned appellate authority remit the cases back to it for fresh decision in accordance with law and in the light of the observations made above. There will be no order as to costs of these revisions.

The parties have been directed to appear before the appellate authority on the 28th of October, 1963, when a short date will be given for further proceedings.