Sudhir Chandra Mitra vs Md. Sujauddin Ahmed and Others

A.K. Patnaik, J.—This is a revision u/s 115 of the CPC challenging the judgment dated 12.9.91 of the Assistant District Judge, Nagaon, dismissing TA No. 10/90 filed by the Petitioner.

The facts of the case are that the opposite parties in this Civil Revision filed TS No. 48/85 against the Petitioner in the Court of the Munsiff No. 1. Nagaon. In the said suit, the case of the opposite parties-Plaintiffs was that their father Salamuddin was the owner of the suit house and land and in the year 1977 they inducted the Petitioner-Defendant as tenant in the suit house. After the death of Salamuddin, the Defendant made a fresh agreement of tenancy with the Plaintiff No. 1 and renewed the tenancy once every 11 or 12 months and continued to be a tenant and paid rent, to the Plaintiffs upto April, 1984. But since May, 1984, the Defendant defaulted in payment of the rent, and the Plaintiffs prayed for ejectment of the Petitioner from the suit house on the ground of default of payment of rent and their bona fide requirement of suit house and for recovery of the arrear house rent. The Defendant contested the suit by filing written statement and pleaded, inter alia, that the Plaintiff had no right, title and interest in the suit land and that the Defendant was not a tenant under the Plaintiffs. The Defendant''s further case in the said written statement Was that he had taken the suit land initially on lease from one Razia Sultana and Hissaruddin Ahmed and constructed the house on the suit land and subsequently purchased the said land from them and had became the owner of the land and the suit house. On the said pleadings, the learned Munsiff No. 1 Nagaon framed 7 issues and after evidence, by judgment dated 21.1.90 decreed the suit for eviction of the Defendant and for recovery of arrear rent. Aggrieved by the said judgment of the learned Munsiff, the Petitioner filed TA No. 10/90 in the Court of the Learned Assistant District. Judge, Nagaon, but the said appeal was dismissed by the learned Assistant District Judge, Nagaon, by judgment dated 12.9.91. It is this appellate judgment dated 12.9.91 of the learned Assistant District Judge, Nagaon, in TA No. 10/90 which has been challenged in this Civil Revision.

At the hearing of the Civil Revision, Mr. D.N Choudhury, learned Counsel for the Petitioner, challenged the impugned judgment on various grounds and his first ground of challenge was that the impugned appellate judgment did not satisfy the requirements of Order 41, Rule 31 Code of Civil Procedure. Mr. Choudhury submitted that since under the Assam Urban Areas Rent Control Act, 1971 no second appeal is available against an appellate judgment, it was all the more necessary for the Assistant District Judge to have dealt with each of the issues in his judgment after considering the evidence on record in accordance with Order 41, Rule 31, Code of Civil Procedure. Since this has not been done by the learned Assistant District Judge, Nagaon, the impugned judgment is liable to be set aside for non-compliance of the provisions of the Order 41, Rule 31, Code of Civil Procedure, and the matter should be remanded to the appellate Court for rehearing and fresh judgment in accordance with the said mandatory provisions of the Code of Civil Procedure. In support of the said submission, Mr. Choudhury relied on the judgment of this Court in the case of Ambar Ali v. Hissar Ali AIR 1950 Gua 1979, Arobindu Barman v. Chandra Kanta AIR 1954 Gau 94, Fakar Ali v. Superintendent of Police AIR 1971 Gau 165 Bhogmol Gohain v. Lakhinath Kalita (1991)2 GLR 147 and K. Ibohal Singh v. Ch. Iboiyaima Singh (1993) 1 GLR 325.

Mr. B.K. Goswami, learned Counsel for the opposite parties, on the other hand, argued that in a case where the appellate Court agrees with the findings of the trial Court, it is not necessary for the appellate Court to restate the evidence and discuss the same at length in the appellate judgment and it is sufficient if the appellate Court has considered the evidence and then agreed with the reasons given by Ac trial Court. In the present case since the impugned judgment is a concurrent judgment and the appellate Court after considering the evidence has agreed with the findings of the trial Court, the impugned judgment is in conformity with the requirements of Order 41, Rule 31. Code of Civil Procedure, and is not liable to be set aside.

I find full force in the aforesaid submissions of Mr. Goswami. Order 41, Rule 31, Code of Civil Procedure, requires that the judgment of the appellate Court should state the points for determination, the decision thereon, the reasons for the decision and where the decree appealed from is reversed or varied, the relief to which the Appellant is entitled. In the present case, the decree-appealed from has not been reversed or varied by the appellate judgment and the appellate Court has agreed with the reasons and findings of the trial Court. In the case of Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, the Supreme Court, held:

It is true that the High Court did not enter upon a reappraisal of the evidence, but it generally approved of the reasons adduced by the Trial Court in support of its conclusion. We are unable to hold that the learned Judges of the High Court did not, as is contended before us, consider the evidence, It is not the duty of the appellate Court when it agrees with the view of the Trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the Trial Court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice.

On perusal of the appellate judgment, it appears that the learned Assistant District Judge has considered the evidence led by the parties and concurred with the reasons of the learned Munsiff in favour of its conclusion on the points for determination in the appeal. The contention of Mr. Choudhury, therefore, that the appellate judgment of the learned Assistant District Judge does not conform to the requirements of Order 41, Rule 31, Code of Civil Procedure, has no merit.

It was next contended by Mr. Choudhury that while the Petitioner admitted the execution of the tenancy agreement dated 16.1.80 which was marked as Ext-1, he has not admitted the execution of the subsequent tenancy agreements dated 8.1.81, 8.1.82 and 20.1.83 (Exts 2, 3 and 4) relied on by the opposite parties but the trial Court on a comparison of the signatures on Exts 2, 3 and 4 with the admitted signatures or. Ext-1 came to the conclusion that the signatures on Exts 2, 3 and 4 were genuine but this was not permissible as per law laid down by the Privy Council in the case of Kassaribail v. Jethabai Jivan reported in AIR 1928 PC 277 as well as law laid down by the Apex Court in Fakhruddin v. State of M.P. AIR 1967 SC 1326 and in The State (Delhi Administration) Vs. Pali Ram,

In reply to the said submission of Mr. Choudhury, Mr. Goswami submitted that the decision of the Supreme Court in the case of Fakhruddin v. State of M.P. (supra) would make it clear that the Court may compare the disputed signatures with the admitted signatures for the purpose of appreciating the evidence that is led by the parties. In the present case, the trial Court has compared the admitted signature of the Petitioner is Ext-1 with the signatures in Exts-2, 3 and 4 only by way of corroboration of oral evidence that has been led by the Plaintiff.

On a perusal of the decisions cited by Mr. Choudhury, I find that in the aforesaid cases, the Court took a view that it was hazardous to rely only upon on comparison of signatures sought to be proved with the admitted signatures and to come to the conclusion that the disputed signatures were of the concerned person, but where there was evidence such as direct evidence of a witness or the opinion of an expert or the evidence of a person who was familiar with the signature, of the person who is said to have signed the document the Court can always resort to a comparison u/s 73 of the Indian Evidence Act for satisfying itself that it was sale to accept such evidence led by the parties. Paragraphs -10 and 11 of the judgment of the Apex Court in the case of Fakhruddin v. State of M.P. AIR 1967 SC 1326 (supra) which explains the aforesaid position of law are quoted herein below:

(10) Evidence of the identity of handwriting receives treatment in three sections of the Indian Evidence Act. They are Sections 45, 47 and 73. Handwriting may be proved on admission of the writer, by the evidence of some witness in whose presence he wrote. This is direct evidence and if it is available the evidence of any other kind is rendered unnecessary. The Evidence Act also makes relevant the opinion of a handwriting expert (Section 45) or of one who is familiar with the writing of a person who is said to have written a particular writing, Thus besides direct evidence which is of course the best method of proof, the law makes irrelevant two other modes. A writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to the comparison of handwritings on a scientific basis. A third method (Section 73) is comparison by the Court with a writing made in the presence of the Court or admitted or proved to be the writing of the person.

(11) Both u/s 45 and Section 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observation and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become an handwriting expert but to verify the premises of the expert in the one case and to apprise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in large measure in the disputed writing. In tills way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert''s opinion is given, the Court must sec for itself and with the assistance of the expert come to its own conclusion whether it can safely behold that the two writings are by the same person. This is not to say that the Court may play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert, or other witnesses.

In the present case, PW-1 in his evidence has stated that the signatures in Ext-2, 3 and 4 were those of the Petitioner and the learned Munsiff has compared the admitted signatures in Ext-1 with those in Exts 2, 3 and 4 only to be sure that the signatures on Exts 2, 3 and 4 were really those of the Petitioner. This is, therefore, not a case where the Court has staked its decision merely on a comparison u/s 73 of the Indian Evidence Act but has resorted to such comparison for the purpose of the testing the evidence of PW-1 and the appellate Court has approved this approach of the learned Munsiff. Mr. Choudhury''s contention on this point is, therefore, misconceived on the facts of the present case.

Mr. Choudhury, however, contended that the agreements dated 8.1.81, 8.1.82 and 20.1.83 which were marked as Exts 2, 3 and 4 were not pleaded in the plaint filed by the opposite party. Mr. Goswami, however, stated that it was specifically pleaded in paragraph - 2 of the plaint that the Petitioner-Defendant entered into a fresh agreement with the opposite parties-Plaintiffs and renewed the agreement once every 11 and 12 months, The fresh agreement that was executed between the parties was the agreement dated 16.1.80 which was marked as Ext-1, and the renewals of the said agreement of tenancy were the deeds dated 8.1.81, 8.1.82 and 20.1.83 marked as Exts 2, 3 and 4. He further stated that in fact Exts 2, 3 and 4 were marked without any objection from the Petitioner before the trial Court and it is, therefore, not correct that the agreements dated 8.1.81, 8.1.82 and 20.1.83 did not constitute part of the pleadings in the plaint.

The aforesaid submission of Mr. Goswami has a lot of force. The law of pleadings only requires that a material facts constituting the cause of action should be stated in the plaint and it appears that in paragraph - 2 of the plaint the opposite parties have clearly stated that after the death of Salamuddin, the Defendant entered into a fresh agreement with Plaintiffs and remained in occupation of the house, renewing the agreement every 11 or 12 months and in paragraphs 3 and 4 of the plaint the opposite parties have further pleaded that the Petitioner continued to occupy the suit house even after the expiry of 11 months from 1st February, 1980 and paid rent till April, 1984. Thus, the material facts relating to renewal or continuance of tenancy even after the initial period of 11 months from 1.2.80 had been pleaded in the plaint and the Petitioner-Defendant had notice of the said plea of the opposite parties-Plaintiffs and could not have suffered any prejudice in setting up his defence in the suit. That apart, the learned Assistant District Judge has, in the impugned judgment and order, taken note of the fact that the Ext 2, 3 and 4 were marked by the learned Munsiff without any objection on the part of the Petitioner-Defendant. There was, therefore, no material irregularity or illegality in this regard in the judgments and orders of the learned Munsiff and the learned Assistant District Judge.

Mr. Choudhury then challenged the findings of the Courts below on the question of default in payment of rent on the part of the Petitioner-Defendant and submitted that there was no proof of default on the part of the Petitioner-Defendant with regard to payment of rent before the Courts below. I am unable to appreciate this submission on the facts of the present case. The case of the opposite parties-Plaintiffs in the plaint was that the Petitioner-Defendant paid rent for the suit house till April, 1984 and stopped paying rent from the month of May, 1984. The Petitioner-Defendant''s case before the trial Court was that since the Plaintiffs were not landlords in respect of the suit house, the Defendant was not liable to pay rent to the Plaintiffs. In other words, the Petitioner denied the relationship of the landlord and tenant between the opposite parties and the Petitioner and refused to pay rent on that ground. Once the trial and the appellate Courts came to the finding on the basis of evidence on record that there existed a relationship of landlord and tenant between the opposite parties and the Plaintiff, the default on the part of the Petitioner stood established in view of the fact that admittedly the Petitioner as the tenant did not pay rent which was lawfully due in respect of the suit house and no further proof of default in payment of rent by the Petitioner was necessary. Both the Courts below have adoptee this reasoning in coming to the conclusion that the Petitioner defaulted in payment of rent to the opposite party and I do not find any material irregularity or illegality in the aforesaid reasoning of the trial Court as well as Appellate Court.

Mr. Choudhury further argued that the findings of the Trial Court and Appellate Court that the suit house was bona fide required by the opposite parties were grossly inadequate. He further submitted that both the Trial Court and the Appellate Court have considered the challenge to the title of the land lord by the tenant as a ground for eviction of the tenant but Section 5 of the Assam Urban Areas Rent Control Act, 1972, did not provide for eviction of a tenant on the ground of challenge to the title of the landlord by the tenant. Mr. Goswami, however, sought to justify the aforesaid findings of the Trial Court and the Appellate Court, But in view of the fact that the opposite parties have made out a case before the Courts below for eviction of the Petitioner on the ground of non-payment of rent lawfully due from the tenant in respect of the suit house which by itself is a ground for eviction u/s 5(1)(e) of the Assam Urban Areas Rent Control Act, 1972, it is not necessary for me to decide these questions because even if these questions are decided in favour of the petidoner, the decree for eviction and arrear rent passed by the Courts below will not be affected.

Mr. Choudhury''s last contention was that the owners of the land on which the suit house was situated have not been made parties to the suit and since no effective decree in their absence could be passed, the suit was bad for non-joinder of necessary parties. Mr. Goswami sought to reply to the aforesaid contention by citing the decision of the Apex Court in the case of Sri Ram Pasricha Vs. Jagannath and Others, wherein it has been held;

It is strenuously submitted by Mr. Tarkunde that unless the landlord is also the absolute owner of the premises, he cannot evict the tenant u/s 13(1)(f). Landlord means landlord under the appropriate General Clauses Act and, therefore, since there are other co-sharers, the Plaintiff alone could not file the suit for eviction.

There are two reasons for our not being able to accept the above submission. Firstly, the plea pertains to the domain of the frame of the suit as if the suit it bad for non-joinder of the other Plaintiffs. Such a plea should have been raised for what it is worth at the earliest opportunity. It was not done Secondly the relation between the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit if estopped from questioning the title of the landlord u/s 116 of the Evidence Act. The tenant cannot deny that the landlord has title to the premises at the commencement of the tenancy. Under the general law in a suit between landlord and tenant the question of title to the leased property is irrelevant. It is, therefore, inconceivable 10 throw out the suit on account of non-pleading of other co-owners as such.

So far as the present case is concerned, the reliefs claimed in the plaint are for recovery of the khas possession of the suit house upon ejectment of the Defendant and for a decree for arrear rent of Rs. 3330/-. The pleadings in the plaint would show that the aforesaid two reliefs are sought on the basis of relationship of landlord and tenant between the Plaintiffs and the Defendant in respect of the suit house and there is no prayer whatsoever in the plaint for declaration of title of the Plaintiffs to the suit house on the basis of ownership or for consequential reliefs based on such title or ownership. This being the nature of the suit, I am of the opinion that the only parties who were required to be impleaded in the suit were the landlord and the tenant as defined in Section 2(c) and 2(f) of the Assam Urban Areas Rent Control Act, 1972. Since Section 2(c) of the said Act defines a landlord as a person who is entitled to or who is receiving rent in respect of the house and not one who owns the house or the land on which the house is situated, it was not at all necessary to implead the owners of the land as parties in the suit. Thus the last contention of Mr. Choudhury also fails.

The Civil Revision is accordingly dismissed and the interim order dated 3.10.91 is vacated. The parties shall, however, bear their own costs.