Rajendra Chandra Biswas vs Mahesh Chandra Das

R.S. Bindra, J.C.

This revision petition u/s 25 of the Provincial Small Cause Courts Act, 1887, by the plaintiff Rajendra Chandra Biswas is directed against the judgment and decree dated 25-3-1968 by which the Small Cause Court. Dharmanagar, dismissed his suit for recovery of Rs. 65/- from the defendant Mahesh Chandra Das on account of arrears of rent of a house for the period Sravan to Kartick, 1374 B. S.

According to the allegations set out in the plaint, the house had been let out to the defendant by the plaintiff with effect from 1st of Baisakh, 1370 B. S., on a monthly rental of Rs. 12/- and the rent had been paid regularly by the defendant right up to Ashad, 1374 B. S. The defendant resisted the suit by denying the plea of tenancy. He alleged that he and his elder brother Rasamay being intimately known to the plaintiff they requested the latter for a piece of land to raise their own hut upon, that the plaintiff agreed to give them the land over which the house in dispute stands, and that it was 14 or 15 years ago that, pursuant to that arrangement they set up a hut and began to live therein without any obligation to pay rent. The value of the lands in the locality having registered a steep rise it was alleged further, due to the establishment of Railway station in the region, the plaintiff, sheerly out of avarice, began to press them for vacating the land. Faced with that situation, the defendant arranged a Panchayat meeting wherein it was decided that 1/3 of the land in dispute should be left with him (the defendant) and the balance of it should be vacated and made over to the plaintiff. However, subsequently the plaintiff went back on that agreement and filed a false suit for recovery of arrears of rent as a measure of harassment to the defendant.

The Small Cause Court held on the basis of the evidence led by the parties that the plaintiff had failed to establish that he had let out the house to the defendant against payment of Rs. 12/- per mensem as rent. The plaintiff having felt sorely aggrieved with that conclusion of that Court and the decree founded on it filed the instant revision petition to seek redress.

The main question debated In this Court by the learned counsel for the parties was the exact scope of section 25 of the Act That Section provides that the High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit. This Section evidently has a larger scope as compared to Section 115 of the Civil Procedure Code, which section, as held by the Supreme Court in Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee and Others, , applies to cases involving questions of jurisdiction, i. e., questions regarding the irregular exercise or non-exercise of jurisdiction or the illegal assumption of jurisdiction by a Court and is not directed against conclusion of law or fact in which questions of jurisdiction are not involved. Section 25, I believe, received the most accurate exposition at the hands of Beaumont, C. J., in Bell and Co. Ltd. Vs. Waman Hemraj, . The learned Chief Justice expressed himself as under:

The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does Sec. 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on the evidence which should not have been admitted, or cases where the unsuccessful party has been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But in my opinion, the Court ought not to interfere merely because it thinks that possibly the judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.

It Is correct, as contended by Shri A. M. Lodh on behalf of the defendant, that section 25 should not be so construed as to give the parties a right of appeal on points of fact. Nevertheless, it cannot be denied that the phraseology of the section in general and the word "may" used in it in particular envisage scope for interference both on questions of law and fact, if the High Court finds that there has been miscarriage of justice. The two judgments cited by Shri A. M. Lodh actually underscore that reading of the section. In the first of the two authorities. K.S. Doraiswami Nadar Vs. Sivanupandia Nadar, , a Division Bench held that the High Court u/s 25 cannot constitute itself a Court of appeal and that it has not right to reverse the trial Court on questions of fact, unless the trial Court has given a perverse Judgment or has overlooked essential evidence in the case. In the other authority, A. Kandaswami Pillai Vs. P.M. Theagaraja Pattar, , a previous judgment of the same High Court in the case Munuswami Naidu and Others Vs. Kanniah Naidu, , was cited with approval, and in the latter case it was held that Section 25 of the Act is wider in its terms and scope as compared to Section 115 of the Code and that the language of Section 25 prima facie may even justify an interference by the High Court upon a question of fact, no less than upon a question of law. The Bombay High Court held in Nathuram Shivanarayan Vs. Dhularam Hakiram Marwadi, , that although the High Court would be averse to interfering u/s 25 on pure questions of fact. it cannot be said that the High Court has no power whatever of interference with decision on questions of fact. It was observed further that interference in regard to appreciation of evidence should in general be exercised only when there appears a very clear case of mis-appreciation which has resulted in injustice to a party and makes the decree one that cannot be regarded by the High court as "according to law". The Allahabad High Court observed in Bhagwati Prasad Vs. Abdul Latif, . that the High Court will not interfere in revision with the decision of the Court below on a pure question of fact unless the judgment of that Court is perverse.

Shri P K. Sarkar invited this Court''s attention to the decision in Bobba Satyanarayana Vs. Maddineni Sree Ramulu, to fortify his submission that it is open to the High Court to interfere in revision u/s 25 of the Act even on a point of fact. It was held in the cited case that a decree or order of the Court of Small Causes cannot be said to be according to law if the decision is not based on any evidence, or if the decision is based on an erroneous and improper appreciation of the evidence on the record thus amounting to a gross mis-appreciation of the evidence, or if the decision is based on evidence on which no reasonable man would, on consideration of the same, come to the conclusion reached by the Court, or if the decision is based on an erroneous view of the law, or if the decision is based either on violation of the rules as to burden of proof or Is arrived at without drawing the presumptions authorised by law. The High Court observed further that there may be other cases where interference may be justified on similar or equally strong grounds, and added, as if to sound a note of warning that interference with a finding of fact should not be made merely because it (the High Court), on an appreciation of the evidence, takes a view which differs from that of the Court below. Another authority cited by Shri Sarkar is Hira Prasad Vs. Beni Madho, , where it was held that it may be ordinarily correct that a judge sitting in revision cannot act like an appellate Court and cannot reassess the evidence once appraised by the Small Cause Court, but nevertheless if the assessment of the evidence is wrong or the approach is wrong or the finding Is perverse, the judge sitting in revision has every right to correctly assess the evidence and found his judgment on that assessment.

This survey of leading judicial pronouncements on the exact scope of Section 25 brings out clearly that a finding of fact can be interfered with by the High Court where it is based, say for instance, upon arbitrary assumptions, or Is opposed to the evidence on the record, or is based on too meagre evidence or no evidence whatever, or on flagrant misrepresentation or mis-appreciation of evidence, or is given in utter disregard of evidence, and such finding has resulted. In grave injustice to a party to the litigation. The statement of law on the subject would not be complete unless it Is added that since the Act does not provide for any appeal either on facts or on law, the powers given by Section 25 should not be exercised in the manner of an appellate Court. However, the broad phraseology used in the Section and the objective sought to be achieved through it, viz., to ensure that the decree or order made by a Court of Small Causes is according to law, it is open to the High Court to interfere where there has been miscarriage of justice either by perverse appreciation of evidence or wrong application of the principles of law. In fact, it seems fairly clear that the wide discretion given by the section to the High Court is in the nature of a brake meant to curb abuse of almost plenary powers given by the Legislature to the Small Cause Court In the ultimate analysis, it is a delicate balance which the High Court has to maintain between wise and healthy restraint on its own power of interference in the true spirit of Sec. 25 and to rein the Small Cause Court against any misuse of authority entrusted to it by the Act as a whole.

After a careful and thorough study of the evidence led by the partite in support of their rival contentions. I have come to the conclusion that the finding of the trial Court that the plaintiff had failed to prove the tenancy is clearly perverse and so has to be quashed. It was the case of the plaintiff that the defendant had taken the house on rent from him in Baisakh of 1370 B. S. The defence set up by Mahesh Chandra Das was that he had entered upon the land underneath the house as a mere licensee some time 14 or 15 years ago under Rajendra Chandra Biswas and that he had raised a building thereon for the purposes of his own residence. He denied having paid any rent to the plaintiff as averred by the latter. Let us examine the evidence to determine if it can sustain that stand. The defendant admitted in his statement that he had no special connections with the plaintiff, and that he is a labourer while the plaintiff is a landlord. In that context it passes comprehension why the plaintiff should make over a piece of land to the defendant without charging any rent from him. This is the one drawback in the defence raised by Mahesh Chandra Das. Further, we have the statement of P. W. 3 Ramdas Teli, an employee of the Telephone Department, that he had lived in the house in dispute for four months in the year 1369 B. S. as a tenant under Rajendra Chandra Biswas against a rent of Rs. 10/- per mensem. Nothing could be elicited during the cross-examination of this witness to show that he had made a false statement. If Ramdas Teli was in occupation of the house in 1369 B. S. for a period of four months, the contention of the defendant that he had been in continuous occupation of the house for the last 14/15 years stands rudely shaken. P. W. 2 Prakash Deb aged 96 affirmed that it was he who had secured the house in dispute to the defendant in lease and that the defendant had agreed to pay the plaintiff Rs. 12/- per mensem by way of rent. The witness swore that the defendant''s brother Rasamay (now dead) happened to be his grandson-in-law-That relationship between the witness and the defendant legitimately gives rise to the presumptions that it was not unnatural for the defendant to avail of the services of the witness for securing lease of the house in dispute from the plaintiff, who was known to the witness for quite some time, and that the witness could not have perjured only to smite the defendant. Therefore, the statements of the plaintiff himself, P. W. 2 Prakash Deb and P. W. 3 Ramdas Teli falsify the version of the defendant and convincingly establish the plea of the plaintiff that he had let out the house to the former.

The defendant examined, besides himself. D. W. 2 Monoranjan Datta and D. W. 3 Lalit Mohan Das to establish that some time before the institution of the suit it had been agreed by the plaintiff in the presence of a Panchayat specially assembled, that he (the plaintiff) would relinquish one-third of the land in favour of the defendant without charging him anything and resume possession over the remaining two-third part of it. The primary question that falls for determination in the suit is whether or not there was relationship of tenancy between the parties in respect of the house in dispute. Neither Monoranjan Datta nor Lalit Mohan Das could muster courage to state that to begin with the defendant had secured the land from the plaintiff as a licensee and not as a tenant. They also were unable to state by whom the building standing on the land had been raised. Therefore, the statements of the two witnesses are of no importance in settling the point in dispute. Hence, I see no escape from the conclusion that the trial court had grievously erred in holding that the relationship between the parties was one of licensor and licensee and not that of landlord and tenant.

In the result. I allow the revision petition, set aside the decree of the trial Court, and instead award the plaintiff a decree for Rs. 60/- representing four months'' rent, with proportionate costs against the defendant in both the Courts. I disallow the claim for Rs. 5/- for no justification for award of compensation was made out and that claim was also not pressed by Shri P. K. Sarkar.