Madan Lal vs Jagdish Chander

Arun Kumar Goel, J.—This appeal is directed against the judgment and decree passed by District Judge, Udhampur, on 12-5-1981 there

by upholding the decree of the trial Court dated 16-6-1979, where by the suit of the appellant (hereinafter referred to as 'the plaintiff"") had been

dismissed.

This case has a chequered history and the facts relevant for determination of the present appeal need to be briefly referred to.

Plaintiff filed a suit against the respondent (hereinafter referred to as 'the defendant') for ejectment from the premises in question which consists

of one shop, verandah and an adjacent room. So far description of the tenanted premises and/or relationship of landlord and tenant between the

parties is concerned, it is not in dispute. Similarly, rate of rent being Rs. 92/-per month is also not in dispute. Premises in question having been let

out by means of a written document is also not in dispute between the parties, as would be seen from the pleadings filed by both of them during the

course of trial in the Court below. Ejectment was claimed by the plaintiff on the plea that after partition of properties having taken place between

himself and his father Dina Nath, tenanted premises fell to his share which were let out to the defendant vide lease deed dated 1-8-1966 for a fixed

term of eleven months. Since plaintiff had a large family to look after depend ent on him and his income was very meagre from his employment at

his father's shop where he was drawing Rs. 150/- per month as wages, as such the premises in question were required by him for his requirement.

Such requirement was also aimed at augmenting his income where he wants to run some business after the ejectment of the defendant. It was also

the case of the plaintiff that tenancy of the defendant stood terminated and on his failure to hand over possession (sic) necessity of filing the suit.

Claim made by the plaintiff was contested and resisted by the defendant, who while admitting the execution of the rent note and creation of tenancy

disputed that the premises were reasonably required by the plaintiff for own use and occupation, factum of family partition as claimed by the

plaintiff, as also the receipt of alleged notice, both facts were denied.

On the aforesaid pleadings parties joined issue and case was put to trial. Issues to the following effect were framed by the Court below :

(1) Whether the shop, verandah and room under dispute are reasonably required by the plaintiff for his own use and occupation? OPP

(2), In case of the ejectment which of the parties of this case will comparatively suffer more? OPP

(3) Whether the notice of ejectment is in accordance with law? OPP

(4) To what relief the plaintiff is entitled? OPP.

All these issues were decided against the plaintiff, the decision of the trial Court when questioned in appeal, it met the same fate vide impugned

decree.

Plaintiff again feeling dissatisfied with the judgment of the first appellate Court below preferred the present appeal in this Court. Vide judgment

dated 11-2-1988 a learned Judge of this Court while setting aside the judgment and decree of the first appellate Court upholding dismissal of

plaintiff's suit, held that plaintiff has reasonable requirement of the suit premises for his own use and occupation and by evicting the tenant no

hardship will be caused to him from the suit shop. After framing two issues, the High Court further directed the Court below to decide those issues

after having allowed the parties to adduce evidence on such issues and pass a decree afresh either in respect of the entire premises or portion

thereof, as the case may be, depending on the decision of those two issues.

It appears that defendant was not satisfied with the judgment of the learned single Judge of this Court dated 11-2-1988 as such he took up the

case to the Hon'ble Supreme Court vide Civil Appeal No. 1510 of 1988 in SLP (Civil) No. 4518 of 1988, wherein following order was passed

on April 18, 1988 :

Special leave granted.

Having considered the facts and circumstances of the case, the judgment and order of the High Court dated 11-2-1988, are set aside. The matter

is remanded to the High Court with the direction that the High Court will take into consideration the notice of the fact that the father of the present

respondent has died during the pendency of the proceedings the effect of this on the bona fide need pleaded in the eviction petition and will also

consider subsequent facts in the case. The High Court will decide the matter in accordance with law. If necessary, the High Court will beat liberty

to take fresh evidence. The matter be disposed of as expeditiously as possible. The parties are directed to appear before the High Court on 9th

May, 1988.

The appeal is allowed accordingly. There will be no order as to costs.

Sd/-......... J.

(Sabyasachi Mukharji)

Sd/-...........J.

(S. Ranganathan)"".,

A perusal of the order of the Hon'ble Supreme Court shows that father of the plaintiff had died during the pendency of the proceedings and its

effect was required to be examined on the bona fide need of the plaintiff and this Court was also required to consider subsequent facts in the case.

This Court was also required to decide the matter in accordance with law and if necessary it could take fresh evidence.

After remand of the case, evidence was recorded in this Court. Plaintiff examined as many as seven witnesses, besides appearing himself in the

witness-box. Plaintiff also proved Ex. PW-CL, Will purported to have been executed by Dina Nath, his father who had died on 20-9-1986. On

the other hand, defendant examined two witnesses namely Sham Lal and Chaman Lal, besides appearing himself in the witness box.

Brief reference needs to be made to the evidence as well as to the submissions urged by the parties in this appeal. Pleadings of the parties also

need to be briefly referred to. In paragraph I of the plaint, plaintiff has pleaded that he is the owner of a shop with verandah and a room containing

the boundaries thereof. This fact is admitted by the defendant in his written statement in para No. 1. Similarly, in paragraph 2 plaintiff claimed that

since there was some arrears of rent due against the defendant, for recovery whereof a suit had been field wherein compromise was arrived at

between the parties. With effect from 1-8-1966 rent was fixed at Rs, 92-per month in respect of the rented premises and was payable from month

to month. Contents of this para have also been admitted by the defendant in his written statement. In paragraph 4 of the plaint plea of partition

having taken place and the tenanted premises having fallen to the share of the plaintiff stands repudiated by the defendant. Among other things, it

was pleaded by the defendant that the plaintiff is the only son of his father. Besides that it was also pleaded that the father of the plaintiff is an aged

person and is unable to work, a double storeyed big building has been constructed which adjoins the tenanted premises and has been let out to a

Bank. Plaintiff was stated to have been carrying on business in the shopbelonging to him. Personal requirement of the plaintiff, as claimed, was also

stated to be false and incorrect. These are the material pleadings for the purposes of the present case.

When this appeal was taken up for hearing, both the learned counsel appearing for the parties referred to evidence recorded in this Court after

the order of Hon'ble Supreme Court reproduced hereinabove as well as to the statements of Madan Lal-plaintiff and Jagdish Chander-defendant,

re corded during the course of proceedings before the trial Court.

After referring to the evidence on record as well as to provisions of Section 11(l)(h), Jammu and Kashmir Houses and Shops Rent Control

Act, learned counsel appearing for the plaintiff submitted that defendant raised no specific plea of comparative hardship and/or that the premises

were not bona fide required by his client. While advancing further case of the plaintiff, it was also forcefully urged that firstly there is no denial of

facts as envisaged under Order VIII, Rule 3 of the Code of Civil Procedure, 1977 (1920 .A.D.) therefore, the averments which have not been

specifically denied are deemed to have been admitted by the defendant and secondly, it was pointed out that since defendant had not put up any

case of comparative hardship, therefore, on the basis of the admission of facts pleaded by the plaintiff, defendant was liable to be evicted from the

premises and both the Courts below had fallen into error while dismissing the suit of the plaintiff. So far the death of Dina Nath, father of plaintiff is

concerned, it was submitted that it had no effect in the presence of Will, Ex. PW-C1, as it does not improve the case of the defendant in any

manner and/or does not affect the personal requirement pleaded by the plaintiff. As per this Will plaintiff had not been bequeathed anything. Since

the Will had not been questioned by the defendant and on the basis of other evidence oral as well as documentary, appeal deserves to be allowed

according to learned counsel for the plaintiff.

On the other hand learned counsel for the defendant while controverting the pleas urged on behalf of plaintiff, submitted that the so-called

partition is of least significance in the face of the pleadings of the plaintiff, particularly in paras 1 and 2 of the plaint referred to hereinabove and

alternatively it was submitted that both the documents, i.e. document of confirmation of partition - Ex. PA and so-called Will Ex. PW-CL, are

neither bona fide nor genuine documents, as both have been coined to make out a ground for eviction of defendant without there being any such

ground either in law or fact. It was also submitted that defendant in law is entitled to question the genuineness as well as otherwise of these

documents since it affects his rights. From evidence produced by the plaintiff in this Court it was pointed out on behalf of defendant that till 19-4-

1971 business that was being carried out was in the name of M/s. Madan Lal 'Sanjay Kumar, i.e. plaintiff and his son Sanjay Kumar as per P.W.

examined in this case. It was only with effect from 19-4-1971 that the sign board on the premises was changed from M/s. Madan Lal Sanjay

Kumar to M/s. Dina Nath Sanjay Kumar. Regarding the plea of old partition claimed by the plaintiff"", it was pointed out that when he was already

the owner as was his admitted case in the plaint, it is not understood as to where was the necessity of any partition having taken place qua the

tenanted premises, while further advancing this line of argument it was submitted that partition was to be effected on something which was joint

between the plaintiff and his other co-sharers or for that matter with any other person, but neither this is the case of the plaintiff nor there is anything

to suggest in that direction.

Credibility of PWs was question on a number of grounds. While attacking the Will, Ex. PW-CL, it was pointed out on behalf of the defendant

that this is a document which is not proved in accordance with law and alternatively even if it is presumed to be proved in accordance with law, it

does not affect the rights of the defendant as it is aimed at seeking ejectment of defendant.

As per evidence of the plaintiff recorded in the Court below, learned counsel for the plaintiff has stated that his client was on a salary of Rs.

150/- per month and his family consists of five members. Since the plaintiff wanted to start kirana business, therefore, premises were required by

him In his cross-examination, plaintiff has stated that he is living separately from his father, they are separate in their boarding and lodging as also

have separate ration cards. No ration card has been produced by the plaintiff to show that he was living separately and no proof of employment

except for word of mouth of the plaintiff is there. Record could be produced in case the plaintiff was genuinely employed with his father Dina Nath.

Dina Nath P.W. I has appeared as a witness during the course of proceedings in the Court below. From the tenor as well as nature of evidence

examined by the parties it is clear that Dina Nath was a man of means and substance, owning sufficient immovable and movable property. He was

aware of the legal requirements for carrying on his business.

Another fact which has come to light in the statements of evidence of the plaintiff as well as his son Sanjay Kumar, recorded in this Court, is

that Sanjay Kumar was born on 25-8-1969 whereas partition took place in the year 1971. Madan Lal, plaintiff, when examined in this Court has

stated in his cross-examination that he did not sign the partition document as guardian ad litem on behalf of his minor son. It may also be

incidentally noticed that Dina Nath had one son Madan Lal, plaintiff, who has one son Sanjay Kumar and two daughters. PW-Rakesh Kumar is an

Inspector appointed under the Shops Establishment Act. He has"" staled on oath that the registration had been renewed up to 31 -3-1991, which

originally was in the name of Madan Lal and Sanjay Kumar, but was changed to Dina Nath and Sanjay Kumar on 19-4-1971. He has further

stated that from the date of registration of M/s. Dina Nath Sanjay Kumar, Madan Lal plaintiff is not shown as a partner till date and only two

persons Dina Nalh and Sanjay Kumar are the partners. There is no question of any partnership being there between DinaNath and Sanjay Kumar,

who was admittedly minor, when the statement of Madan Lal-plaintiff was recorded in the trial Court. In order to show that there was subsisting

and valid partnership between Dina Nath and Sanjay Kumar it is further required to be shown that the contract of partnership was complete in

accordance with the provisions of Contract Act, 1977 (1920 A.D.). P.W.-Bansi Lal is a record keeper from the office of Income Tax, Udhampur.

This witness had staled that shop of M/s. Dina Nalh Sanjay Kumar was owned by Sanjay Kumar son of Madan Lai and prior to it it was

proprietary concern of Dina Nath after whose death, returns were being filed by Sanjay Kumar as sole proprietor. Vijay Kumar is the witness

from whom M/s, Dina Nath Sanjay Kumar had been making purchases of cloth for their shop at Udhampur. According to him, when he appeared

in the High Court at that time it was Sanjay Kumar who was dealing with his Firm and earlier Dina Nath, used to come. He also further stated that

Sanjay Kumar was carrying on business being the grandson of Dina Nath, His statement is, oral, as he had not brought any record. Madan Lal-

plaintiff when appeared in, this Court has stated that his son Sanjay Kumar was working with his father, Dina Nath, who died in the year 1986,

Sanjay Kumar is carry ing on the business that was earlier carried out by his father and the witness has no concern with the same. Raj Kumar is

another witness who states that he knows Dina Nath and Sanjay Kumar, as they used to purchase cotton from him. This witness was carrying on

business at Jammu. He claims to have seen the shop of Dina Nath after whose death Sanjay Kumar was dealing with him and the said shop was

being run by Sanjay Kumar. He had never seen plaintiff working in the shop of M/s. Dina Nath Sanjay Kumar. Sanjay Kumar son of the plaintiff

and the other witnesses produced by him were examined to prove on record the Will. According to this witness Dina Nath died on 20-9-1986,

after his death the premises wherein deceased was carrying on business came into his possession and he runs the same under the name and style of

M/s. Dina Nath and Sanjay Kumar. His statements makes an interesting reading that there were two proprietors in the shop, though Income Tax

was earlier paid by Dina Nath and is now being paid by him. According to him, shop that was being run by him and Dina Nath jointly had fallen to

his share under the Will and as per this Will (Ex. PW-CL) the suit premises have fallen to the share of plaintiff. Sanjay Kumar PW claimed to be

living separately from his father. Another fact specifically slated by him in his cross-examination is :

My father was not an employee in the said shop during the lifetime of my grand-father....

Witness claims to have employed two persons in the shop but had not got their names registered with the authorities under the Shops

Establishment Act.

In order to prove the Will (Ex. PW-CL) produced by Sanjay Kumar PW, plaintiff has also examined Charanjit La! Hakim and Amar Nath.

As per Charanjit Lal Hakim. Will (Ex. PW-CL) was executed by Dina Nath on 9-7-1986 at his residence which was signed by him as a marginal

witness. Executant, according to him, was conscious and would understand the implication of the Will. He has not said a word in his examination

as to who were other signatories of the Will. In his cross-examination this witness has admitted that Dina Nath was ill for four-five months before

his death. He further admits that Dina Nath had one son. Regarding Will he states that he did not known the name of the scribe nor did he know

Urdu language. Amar Nath PW is other witness of the Will. (Ex. PW-CL), who admits that one Dina Nath executed the Will, he was sick in the

year 1986. Though Charanjit Lal Hakim had not named Amar Nath to be the other witness of the Will, but this witness has named Charanjit Lal

Hakim to be there. According to this witness, the shop in which Dina Nath used to carry on his business was in possession of Sanjay Kumar son

of the plaintiff and he was running the business therein and was living separately from his father i.e. the plaintiff. According to this witness, ""Madan

Lal is a hawker by profession.

On the other hand defendant has controverted the claim of the plaintiff, both while appearing in the Court below as also when he appeared in

this Court after the remand of the case by Hon'ble Supreme Court. He has also tried to make out a case of comparative hardship that would be

faced by him in case eviction is ordered, though he admits that the name of the premises is M/s. Dina Nath Sanjay Kumar. Great emphasis was

laid by learned counsel for the plaintiff on this admission. Other two witnesses examined by the defendant are Sham Lal and Chaman Lal, who

have staled that after the death of Dina Nath, plaintiff and his son Sanjay Kumar are carrying on the business in the said shop whereas Sanjay

Kumar is studying. Madan Lal has no other son. It has further come in the evidence that during the lifetime of Dina Nalh. plaintiff was carrying on

business with him and after his death, plaintiff still continues to carry it on there. Witness has further stated thaf Dina Nath and Madan Lal used to

live together but plaintiff had been shown to be an employee.

In support of his case, learned counsel for the plaintiff placed reliance on Mst. Bega Begum and Others Vs. Abdul Ahad Khan (Dead) by Lrs.

and Others, , and submitted that in the face of this judgment even if a case of comparative hardship is made out, still the plaintiff is entitled lo evict

the defendant for his personal requirement. After examining the evidence of the landlord in that case, Hon'ble Apex Court observed in paragraph

12 as under:

It is, therefore, proved by the evidence discussed above (I) that the plaintiffs required the house for their personal necessity in order to augment

their income, (2) that as their income from the Boot shop is very small and they are not able to maintain themselves, so they want to run the hotel

business in the suit premises.........

It is on the basis of examination of evidence that ejectment was granted in favour of the landlord and against the tenant in the aforesaid case.

Reliance was also placed on Raj Kumar Khaitan and others Vs. Bibi Zubaida Khatun and another, , and it was urged that when landlord

asserted that there was no other means of livelihood as such they wanted to set up their own business in the premises in dispute, they need not

indicate the precise nature of business which they intended to start in the premises.

. 1989 19 SLJ 34 Kasturi Lal v. Brij Lal, was also relied upon by learned counsel for the plaintiff while arguing that the legislature never intended

to give benefit of partial eviction to the tenant by compelling the landlord to make structural addition or alterations when the premises consisted of

one room or shop and not several shops and rooms. Thus partial eviction was denied.

On the other hand, learned senior counsel appearing for the respondent placed reliance on Devi Dass Vs. Mohan Lal, , and submitted that this

Court was competent to examine the genuineness of both, the memorandum of acknowledging partition (Ex. PA) as well as the Will (Ex. PW-CL).

As according to learned counsel for the defendant, unless genuineness of both these documents is gone into in the background of this case, it will

not be possible to adjudicate the case properly as well as in accordance with the mandate of the Supreme Court in the present case.

Another case relied upon on behalf of the defendant was AIR 1994 MP 11 (Madh Pra), Moolchand v. Prakash Motor Stores, Neemuch

Cantt. In this case after placing reliance in the Supreme Court decision of Devi Das (supra) it was held that for eviction from the premises gifted by

the landlord to his son when genuineness of the gift was disputed by the tenant, which objection was not examined by the Court on the plea that he

is a third party so cannot question the gift in question, it was further observed that since tenant's interest being vitally involved he could not be

precluded from questioning validity of genuineness of gift deed and thus case was remanded back to the trial Court for decision after framing

necessary issue.

Reliance was also placed on behalf of defendant on Civil 2nd Appeal No. 8 of 1987, Bodh Raj v. Om Prakash, decided on 30-5-1991 by a

[earned Judge of this Court.

Besides this, cases were also cited to show that both the Courts having recorded concurrent findings on due appreciation of evidence nor the

case in hand fell within any of the provisions of Section 100(I) (a to d) of the Code of Civil Procedure, 1977 (1920 A.D.), as it stood prior to its

amendment on 15-8-1983, therefore, this Court may not interfere with such findings of fact.

In support of this submission, learned counsel for the defendant further urged that there is neither any misreading nor misconstruction muchless

any material document having been not properly examined by the Courts below, which can be the possible grounds for interference, therefore,

dismissal of the appeal was prayed for.

From the narration of aforesaid facts, it is manifestly clear that the defendant was inducted as a tenant with effect from 1-8-1966 and even

prior to that he was a sitting tenant of the tenanted premises which were owned by the plaintiff. It is further not the case of plaintiff that the premises

in question were either a joint Hindu family property or he was manag ing it on behalf of somebody else. In the face of the pleadings contained in

paras I and 2, to which reference has been made hereinabove, it is clear that the plaintiff claimed himself to be the exclu sive owner of the property

in question. In these circumstances, there is no question of the ten anted premises could be made subject-matter of partition deed, Ex. PA and/or

of Will Ex. PW- CL. In fact there was no occasion for deceased- Dina Nath, father of the plaintiff, to have made any reference to tenanted

premises in both these documents. Purpose of firstly including the ten anted premises in partition deed, Ex. PA, and then making a reference in the

Will, Ex. PW-CL. is obvious and manifest.

As a corollary to the above, Will - Ex. PW-CL cannot be termed to be a genuine document aimed at testamentary disposition on the part of

the deceased-Dina Nath. It appears, that with a view to obviate any decision against the 'plaintiff in the matter and prevent all such situations the

Will (Ex. PW-CL) came to be executed. This is one reason not to accept the Will (Ex. PW-CL) being genuine.

27, Even otherwise Will (Ex. PW-CL) is not proved to have been executed by the deceased while being in a sound and disposing state of mind. In

this behalf, it may be appropriate to point out that till the Will (Ex. PW-CL) was produced by Sanjay Kumar-PW, in this Court, it has not seen the

light of the day. When a reference is made to the statements of Charanjit Lal Hakim and Amar Nath, PWs, the marginal witnesses of the Will (Ex.

PW-CL), it is clear that both these statements do not inspire confidence. Reason is that PW-Charanjit Lal Hakim has not stated anything regarding

Amar Nath being the other witness present when the Will (Ex. PW-CL) came to be signed by Dina Nath and the witness, whereas Amar Nath has

named the said Hakim-PW. In case witness Amar Nath was in fact present at the time of execution of Will (Ex. PW-CL) it does not appear to

reason as to why his name would be omitted by Charanjit Lal Hakim, witness. Besides this both these marginal witnesses have stated that they did

not know Urdu language. Witness Charanjit Lal Hakim has also stated that he did not know the scribe. Amar Nath witness has categorically

admitted that DinaNath was ill when he executed the Will (Ex. PW-CL). From the record it is further evident that the Will (Ex. PW-CL) is dated

9-7-1986. On 16th Dina Nath was admitted in the SMGS Hospital, Jammu. This Will (Ex. PW-CL) was got attested from a Notary Public,

endorsement of the Notary Public is there on the reverse of the Will, which is admittedly made in the hospital. Endorsement is to the following

effect:

This Will was presented before me for the attestation in SMGS Hospital in Ward No. 15 Bed No 7 on 17-9-1986. The executant has ad mitted

the contents of the Will written at Udhampur. The executant signed the Will in presence of Sh. Raj Pal s/o Sh. Krishan Lal r/o Rambal Udhampur,

Sh. Sanjay Kumar s/o Sh. Madan Lal r/o Mukerjee Bazar, Udhampur and Section Gurmeet Singh s/o Section Gurcharan Singh r/o Pratap Gad,

Jammu/The execution, is admitted hence attested.

Notary who made this endorsement has not been examined by the plaintiff and reason appears to be genuine because, if he was examined then he

would have stated about the state of mind as well as health of Dina Nath that existed on 17-9-1986 when the execution of the Will (Ex. PW-CL)

was admitted by the deceased. Similarly, none of the persons who were present in the hospital other than Sanjay Kumar were examined by the

plaintiff and when a reference is made to the statement of Sanjay Kumar there is not a word said by him in that behalf, so no benefit can be derived

by the plaintiff from such endorsement made by the Notary.

Since the defendant had questioned the so-called partition deed (Ex. PA) in his written statement and the Will (Ex. PW-CL) as already noticed

has been held to be firstly not proved and secondly being not a genuine and bona fide document, both need to be excluded from consideration. As

a result of this on the death of Dina Nath, plaintiff got the shop where deceased was running his business and after his death. On the basis of the

evidence this Court is further constrained to hold that the plaintiff is running the same with the help of his son Sanjay Kumar, what internal

arrangement they have got particularly when Madan Lal and Sanjay Kumar are father and son, with no other male issue being there, this Court

comes to the conclusion that it is Madan Lal, plaintiff, upon whom the entire property, which is subject-matter of the Will, has fallen upon. In

addition to this it has also come on record that Bank of India though has vacated the premises but has not surrendered possession, as such

possibility of plaintiff coming into its possession is not completely ruled out.

So far the plea of plaintiff that he was employed on a salary of Rs. 150/- per month with his father, is also not made out on the basis of

evidence. There are three versions in that behalf, one is that of the plaintiff, other is also given by his son Sanjay Kumar, who has no reason to have

stated anything adverse to the interest of his father and the third is of Amar Nath, according to whom Madan Lal-plaintiff was a Hawker by

profession.

So far the plea on behalf of plaintiff that there is no specific denial of facts in the written statement of defendant is concerned, this does not

appear to be correct. Defendant has in his written statement mentioned that facts are wrong and false. Besides this, it is prima facie for the plaintiff

to have led cogent and reliable evidence in support of his claim when only question of proving negative would arise. As already observed, neither

there is any evidence examined in the Court below nor any such brought during the course of examination in this Court on behalf of plaintiff.

It may be clarified that since this appeal had arisen prior to the amendment of Section 100 of the Code of Civil Procedure, 1977 (1920 A.D.),

therefore, it had to be dealt with under the unamended Section 100 of the said Code.

In view of what has been discussed in the preceding paras case of the plaintiff does not fall in any of the clauses of Section 100(I) (a to d) of

the CPC (supra) as such no case for interference is made out in this appeal.

As a result of the aforesaid discussion, it is held that firstly no bona tide need has been made out as claimed in the ejectment suit filed by the

plaintiff and further after the death of his father the entire property of Dina Nath has devolved upon the plaintiff, including the shop where deceased

was running his business and as already noticed during his lifetime and on his death, plaintiff is carrying his business with his son Sanjay Kumar and

thus the need, if any, stands completely wiped out. No other point is urged.

Consequently, there is no merit in this appeal which is accordingly dismissed with costs quantified at Rs. 2.000/-.