Kailash Chand Sharma @ Joshi vs Pursottam Lal Sharma

Heard Mr. BK Jain, learned counsel for the petitioner and Mr. RL Yadav, learned counsel appearing for the respondent.

The present petitioner is the defendant in Title Suit No. 183/1984 in the court of the then learned Civil Judge (Jr. Div.) No. 3, Guwahati. In the suit

which is filed by the respondent as the plaintiff sought for the decree of ejectment of the defendant/ petitioner from the tenanted premises on the

grounds of defaulter and bona-fide requirement. The defendant/ petitioner filed his written statement thereby denying the fact of defaulter in paying

the monthly rent for the Month of March, 1981. The bona-fide requirement was also stoutly denied by the defendant/ petitioner. On the basis of the

said pleadings the learned trial court framed the following issues:-

Whether there is any cause of action for the suit?

Whether the defendant is a defaulter?

Whether the suit premises to bonafide required by the plaintiff?

Whether the defendant violated the terms of the tenancy?

Whether the plaintiff is entitled to a decree as prayed for and if so to what relief/reliefs claimed by him?

Whether the suit is barred by waiver and estoppels?

Whether the electricity charges were paid by the defendant & the same has been appropriated by the plaintiff?

Whether the plaintiff has violated the terms of tenancy in any way?

The plaintiff/ respondent adduced evidence himself as PW 1 and on the other hand, the defendant/ petitioner also adduced his only evidence as DW

The learned trial court decided issue no. 2 against the defendant/ petitioner. It considered the various exhibits, more specifically, the rent receipts for

the period commencing from May, 1963 to December, 1975 and examining the said exhibits the learned trial court came to the finding that Exhibits 40

to 64 are the rent receipts showing that the rent were collected on the first day of each succeeding month. It is the finding of the trial court that

Exhibits 2 to 39 are the receipts and there were no fixed date for collecting the rent. The defendant took the plea that as there was no practice by the

landlord collecting the rent on the first day of each succeeding month and he used to collect as per his convenience so there was no accepted mode of

collecting the rent nor the same fell due on the first day of each succeeding month. The said plea was rejected and accordingly the learned trial court

held that as the tenancy was monthly the rent fell due on the first day of each succeeding month. Regarding the tender of rent to the landlord it is the

stand of the defendant/ petitioner that till February, 1981 the landlord collected the rent but for the month of March, 1981, the defendant/ petitioner

deposited the rent in the court as the landlord refused to accept the rent for the month of March, 1981 and since then the defendant/ petitioner has

been depositing the rent in the court on refusal by the landlord to accept the rent. It was also observed that there was no independent witness to

corroborate the oral testimony of DW 1 that he went to the plaintiff/ respondent to offer the rent for the month of March, 1981 in the first week of

April, 1981. The learned trial court observed that though the defendant/ petitioner stated in the written statement and in the evidence that he deposited

the rent in the court but no such NJ case records were called for. The learned trial court took note that as the defendant/ petitioner in his cross

examination stated that he went to the plaintiff to offer the rent for the month of December, 2006 on 06.01.2007 but as the plaintiff refused he

deposited the same in the court. It came to the conclusion that the rent fell due on 01.01.2007 and finally held that the defendant/ petitioner failed to

prove that he actually offered the rent on the date of its falling due and after such refusal by the landlord deposited the same in the court.

During the pendency of the suit the defendant/ petitioner filed an application in order to summon two witnesses which includes the Sheristadar of

the court of learned Munsiff No. 1, Kamrup (M) at Guwahati in order to adduce evidence along with the NJ case records and also the postal officials

in order to prove that money order was sent favouring the plaintiff/ respondent thereby sending the rent for the month of March, 1981. The said

petition was dismissed. The defendant/ petitioner did not prefer any revision in the higher court challenging the said dismissal order.

On the basis of the said findings in issue no. 2 and holding the issue no. 3 of bonafide requirement in favour of plaintiff/ respondent the learned trial

court decreed the suit. The defendant/ petitioner being aggrieved filed Title Appeal No. 40/2007 in the court of learned Civil Judge No. 2, Kamrup (M)

at Guwahati challenging the judgment and decree passed in T.S. No. 183/1984 by the learned Civil Judge (Jr. Div.) No. 3 at Guwahati. Along with the

said appeal the defendant/ petitioner filed an application under Order XLI Rule 27 of the CPC in order to allow the defendant/ petitioner to adduce

additional evidence on the ground that the application for summoning witnesses along with NJ case records and postal records was dismissed by the

learned trial court.

The learned first appellate court dismissed the appeal vide judgment and decree dated 19.04.2011. Thereafter the defendant/ petitioner preferred

this revision petition which is taken up for disposal.

Mr. Jain referring to the judgment passed by the first appellate court submits that the first appellate court while deciding issue no. 2 nowhere

discussed the evidence on record and that itself is a ground for setting aside the impugned judgment and decree of the first appellate court as it does

not conform to the requirements under Order XLI Rule 31 of the CPC. Referring to the manner in which the application under Order XLI Rule 27

CPC was disposed of Mr. Jain submits that the finding of the first appellate court while dismissing the said application is totally perverse and against

the settled position of law. On the basis of the said submission Mr. Jain sought for interference by this court in the judgment of the first appellate

court.

Mr. Yadav vehemently countered the submission of Mr. Jain on the ground that the application under Order XLI Rule 27 of the CPC was decided

keeping in view the factual matrix and the conduct of the defendant/ petitioner. The first appellate court while deciding issue no. 2 discussed the

various settled position of law and concurred with the findings of the trial court and as required under Order XLI Rule 31 of the CPC answered each

and every issues framed by the trial court. Accordingly, there is no violation of the statutory provisions as stated by Mr. Jain.

I have considered the submissions of the learned counsel appearing for the parties. The first appellate court while deciding the application under

Order XLI Rule 27 of the CPC took note of the fact that as the application for summoning witnesses along with documents was dismissed by the trial

court and the defendant/ petitioner did not challenge the same in the higher court as such the same has attained finality. The learned court below also

came to the finding that exercise of the jurisdiction for disposal of the application under Order XLI Rule 27 of the CPC and that too at the time of

hearing of the appeal would render the whole exercise of hearing the appeal futile which may be prejudicial to the plaintiff/ respondent. The said

finding in my considered opinion is totally perverse and cannot be accepted under the law. The order of rejection of an application under Order XVI of

the CPC does not provide any appeal under Section 104 of the CPC read with Order XLIII of the CPC. On the other hand, Section 105 CPC read

with Order XLIII Rule 2 of the CPC speaks of the provision that an order which is not appealable rendered by the trial court which ought not to have

been passed can be agitated by the affected party in the appellate court challenging the decree passed by the trial court under section 96 of the CPC.

The court below failed to consider the said aspect and straightway held that the order rejecting the said application under Order XVI of the CPC had

attained finality as because the defendant/ petitioner did not challenge it in the higher court. This is a wrong finding. Order XLI Rule 27 CPC

authorises the appellate court to consider application for production of additional evidence in the appellate court by the parties to an appeal on the

ground that the court against whose decree the appeal is preferred, refused to admit evidence which ought to have been admitted.

From the perusal of the judgment of the first appellate court and the ground for rejection of the said application under Order XLI Rule 27 of the

CPC can be concluded that if the said application was taken up for hearing at the stage of final hearing of the appeal the whole exercise of the

appellate court would become futile. On the other hand, purely on the misconception of the procedural law as stipulated under Section 105 CPC the

learned court below did not consider the ground mentioned in the application under Order XLI Rule 27 of the CPC and made the observation that the

landlord has not yet succeeded in evicting a defaulter tenant who stopped paying the rent to him 30 years ago and the credit goes to the appellant/

tenant who left no stone unturned to make the litigation a never ending process. This should not be the view of a court exercising the jurisdiction under

Section 96 of the CPC. The right of appeal as envisaged under Section 96 of the CPC is a precious right given to the litigants. The first appellate court

has its duty to examine the findings of the trial court by considering the evidence on record and if there is any wrong finding by the trial court it is to be

corrected and if not, the first appellate court must concur with the findings of the trial court. In the present case in hand, there are 76 number of

exhibits and oral evidence adduced by the witness of both sides but the learned first appellate court never even discussed a single piece of evidence

which clearly violates the intent and purpose of Order XLI Rule 31 of the CPC. Without entering into the merit of the issues decided by the first

appellate court I am constrained to set aside the judgment and decree dated 19.04.2011 passed in Title Appeal No. 40/2007 by the learned Civil Judge

No. 2, Kamrup (M) at Guwahati and remand the same for passing the judgment afresh including the application under Order XLI Rule 27 CPC as per

the requirement of law. Accordingly, this revision petition succeeds.

No costs.

Send back the LCRs.

The parties to the suit shall appear before the court of learned Civil Judge, Kamrup (M) at Guwahati on 04.12.2019 whereafter the first appeal

shall be decided within the time frame of 90 days from 04.12.2019.