Kalyani v. Ramachandra Thengondar

In the High Court of Judicature at MadrasDated: 27.04.2012Coram: The Honourable Mr.Justice V.PERIYA KARUPPIAHSecond Appeal No.779 of 1999andCMP.No.8113 of 1999 Kalyani...Appellant/Defendant VersusRamachandra Thengondar...Respondent/PlaintiffsSecond Appeal filed under Section 100 of Civil Procedure Codeagainst the Judgment and Decree dated 10.08.1998 made in A.S.No.35of 1998 on the file of the Additional District Judge, Pondicherry, Karaikal, in modifying the judgment and decree dated 27.02.1998made in O.S.No.285 of 1997 on the file of the Principal DistrictMunsif, Karaikal. For Appellant..Mr.K.ChozhanforM/s.A.K.JayarajFor Respondent..Mr.Swaminathan ....... JUDGMENTThis appeal is directed against the judgment and decree passed by the first appellate court in A.S.No.35 of 1998 dated 10.08.1998in modifying the judgment and decree passed by the trial court inO.S.No.285 of 1997 dated 27.02.1998 in partly decreeing the suit.

The appellants herein was the defendant and the respondent herein was the plaintiff before the trial court.

The case of the plaintiff as stated in the plaint would be as follows:-The plaintiff is a landlord in relation to a residential building situate at No.11, Thirunallar Road, Karaikal. Thedefendant is a tenant under the plaintiff on a monthly rent of https://hcservices.ecourts.gov.in/hcservices/ Rs.300/-. The tenancy commenced from 01.01.1991, on an oral agreement. The defendant was not regular in payment of monthly rent. As on the date of the suit, the defendant has to pay a sum of Rs.12,300/- for six years. Further, the plaintiff resort to hisclaim for the last six years of rents only, totalling intoRs.8,000/-. The defendant is in arrears of rent to the tune ofRs.600/- in the year 1994 and Rs.1,400/- for the year 1995. For the year 1996, the defendant did not pay anything and hence, she is in arrears of rent to the tune of Rs.3,600/-. For the year 1997, the defendant is in arrears of rent of Rs.2,400/-. On 13.06.1997, alawyer's notice was issued, which was returned unclaimed.RCOP.No.17/97 has been filed against the defendant for the period1994 to 1997. In toto, the defendant is liable to pay a sum ofRs.8,000/-. Hence, the suit.

The objections of the defendant in her written statement would be as follows:-The defendant has no knowledge of the RCOP Proceedings. Nopre-suit notice was issued to her. The defendant has been paying the rent regularly to the plaintiff through his son. Further, the defendant paid a sum of Rs.5,000/- as advance at the inception of tenancy. The tenancy commenced in the year 1990 itself and not on01.01.1991 as alleged in the plaint. Since the plaintiff refused to issue receipt for the advance amount paid by him, the defendant filed a complaint before the Town Police Station, Karaikal, wherein the plaintiff at the time of interrogation admitted that he received a sum of Rs.3,500/- as advance. There is no fault much less wilful default in payment of rent to the plaintiff. Hence, the suit is liable to be dismissed.

The trial court has framed necessary issues on the abovepleadings and had come to the conclusion of partly decreeing the suit for a sum of Rs.3,700/- only with proportionate costs. Aggrieved against the said judgment and decree, the plaintiff has preferred an appeal before the first appellate court in A.S.No.35of 1998. The first appellate court heard both sides and had cometo the conclusion of allowing the appeal and thereby, the judgment and decree passed by the trial court was modified and the suit was decreed in entirety with costs.

Aggrieved by the said judgment and decree passed by the first appellate court, the defendant has preferred the present appeal before this Court.

On admission of the appeal, this Court had formulated the following substantial questions of law for the disposal of the appeal :-a)When the plaintiff has pleaded that Ex.B1 https://hcservices.ecourts.gov.in/hcservices/ was obtained by coercion and at the sametime admitted execution, whether the learnedJudge is right in rejecting Ex.B1 as one executed in the police station and the police have no jurisdiction ?b)Whether the courts below is right in rejecting Ex.B1 and its reasoning that the police has got no jurisdiction in civil matters in the light of Section 25 of the Evidence Act?8.Heard Mr.K.Chozhan, learned counsel appearing on behalf of M/s.A.K.Jayaraj, learned counsel for the appellant/defendant andMr.Swaminathan, learned counsel for the respondent/plaintiff.

The learned counsel for the appellant would submit in his argument that the judgment and decree passed by the first appellate court was not in accordance with the settled principles of law. Hewould further submit that the first appellate court had without any reasons interfered with the judgment and decree passed by the trial court, which was based upon evidence. He would also submit that the rejection of Ex.B1 was certainly illegal when the plaintiff himself had not entered into witness box to deny his signature in the said document. He would further submit in his argument that the said document was candidly admitted by PW.1, who was representing the plaintiff and such admission would certainly dispel the case of the plaintiff that there was coercion in getting the signature of the plaintiff in Ex.B1. He would further submit that the plaintiff had conveniently away from giving evidence and the first appellate court ought to have taken adverse inference fornot explaining about Ex.B1. He would also submit that the explanation if any given by PW.1 would not be sufficient to hold that Ex.B1 was obtained by police by coercion. He would further submit in his argument that the account book produced by the plaintiff was not spoken to about its safe custody. He would also submit that the entries made in the account book are contrary to the pleadings of the plaintiff. He would also submit that the reliance placed over the said account book by the first appellate court is contrary to the pleadings and therefore, it is not sustainable in law. He would also submit that the first appellate court had with perversity approached Ex.B1 and accepted Exs.A1 andA2 account book and entries and had landed in erroneous judgment. He would, therefore, request the court that the judgment and decree passed by the first appellate court may be set aside and the judgment and decree passed by the trial court be restored and thus, the Second Appeal may be allowed.

The learned counsel for the respondent / plaintiff would submit in his argument that Ex.B1 was a document obtained by the https://hcservices.ecourts.gov.in/hcservices/ police for the purpose of creating records and therefore, it was rightly rejected by the first appellate court. He would also submit that the police records are not admissible documents in view of Section 25 of the Indian Evidence Act. He would further submit that the said document Ex.B1 cannot be relied upon since, the police are barred to take cognizance of a civil case in its file under Rule 582 of the Police Standing Orders. He would further submit that the said document Ex.B1 was contrary to the said Rule582 of the Police Standing Orders and therefore, it is not admissible in evidence.

He would further submit that the appellant / defendant ought to have examined the plaintiff for the purpose of proving the said document or to summon the police to prove its authenticity and in the absence of such proceedings, Ex.B1 cannot be relied. Hewould also submit that if Ex.B1 is not relied upon, naturally the judgment and decree passed by the first appellate court has to be upheld. He would also submit in his argument that the plaintiff had maintained an account book for various tenants and he had produced it in Exs.A1 and A2, but the trial court did not follow the documentary evidence and partly decreed the suit, but reduced as if four(three) months rent for the year 1995 at Rs.1200/- only without referring to the said documents. He would further submit that the first appellate court had correctly approached the case and had come to the conclusion of decreeing the suit filed by the plaintiff, after setting aside the judgment of the trial court, which need not be interfered. He would therefore, request the Court to dismiss the appeal.

I have given anxious thoughts to the arguments advanced on either side.

The relationship of landlord and tenant has not been disputed. The only point to be seen is what would be the arrears of rent payable by the tenant (defendant) in favour of the landlord(plaintiff).

The case of the plaintiff before the trial court was that the defendant did not pay the arrears of rent for about six years and he is liable to pay a sum of Rs.8000/- to the plaintiff on the date of the suit. The plaintiff had issued a notice on 13.06.1997claiming that the defendant was in arrears of rent for a sum ofRs.12,300/- which was returned unclaimed. Therefore, the plaintiff claimed a sum of Rs.8000/- as arrears of rent for three years period within the period of limitation. However, on going through the averments made in the plaint, I could see that the defendant was liable to pay a sum of Rs.600/- for the year 1994, four months due for the year of 1995 for a sum of Rs.1400/-, the entire rent for the year 1996 for a sum of Rs.3600/-, and for the year 1997 https://hcservices.ecourts.gov.in/hcservices/ till the month of August for eight months rent at Rs.2400/- and fora total sum of Rs.8000/-.

The defendant had produced Ex.B1, a police record prepared under Section 155 Cr.P.C when a case is closed. The said record was admitted in evidence during the cross examination ofPW.1. PW.1 had categorically admitted that there was a complaint given by the tenant / defendant against him before the police andit was enquired into and the same was closed since the dispute in between the parties, in relation to a civil dispute. In the said document Ex.B1, a sum of Rs.3,500/- was admitted to have been paid by the tenant as advance to the landlord. Actually, the claim of payment of advance by the tenant was at Rs.5,000/-. The saidfactum was admitted by the plaintiff to an extent of Rs.3,500/-which can be seen in Ex.B1. The plaintiff has also signed at the bottom of the said document knowing about the closure of the said complaint after enquiring him and recorded his version. The said document would show that a sum of Rs.3,500/- was paid as advance by the tenant in favour of the landlord. The said document was approved by the trial court, but it was rejected by the first appellate court as not an admissible document. The first appellate court did not specify any ruling for the purpose of rejecting the said document. If the said document is accepted, a sum ofRs.3,500/- has to be deducted from out of the arrears amount since it was referring to an advance amount. In case Ex.B1 document was not relied upon, the defendant is liable to pay the entire amount found due without deducting the amount mentioned in Ex.B1.

However, the learned counsel for the respondent /plaintiff insisted in his argument that Rule 582 of the PoliceStanding Orders prevents the police to take cognizance of a civil dispute. On going through the said Rule 582 of the Police StandingOrders, there is no second opinion for this Court. However, the said police after receiving the complaint had gone into the dispute and enquired the parties and thereafter, closed the complaint on the foot of Rule 582 of the Police Standing Orders. That was done by the police under Section 155 of Cr.P.C. The said act done by the police is in accordance with law enunciated in Police StandingOrders as well as in the Code of Criminal Procedure. The said document has been produced into the Court for the purpose of consideration. No doubt, the police was not called for to prove the said document, but it was admitted by PW.1, the son of plaintiff, who was examined on behalf of the plaintiff. On the basis of his admission, it was admitted in the evidence. Therefore, it cannot be said that the said document was not proved by examining the police personnel, who prepared it.

In the said document Ex.B1, certain things have been referred to. According to the plaintiff, those statements are the https://hcservices.ecourts.gov.in/hcservices/ substance of enquiry and cannot be taken as evidence in view of Section 25 of the Indian Evidence Act. On a careful perusal of Section 25 of the Indian Evidence Act, I could see that any confession given to the police cannot be used against the accused for proving the offence. Therefore, Section 25 of the Act is only in relation to an offence, which has to be adjudicated in acriminal proceedings. But the records in which the statements or admissions or confessions stated to be given by the parties shall be given in the civil proceedings. Therefore, Section 25 of the Act may not be considered as a bar. In such cases what would bethe dictum laid down by the Hon'ble Apex Court and various otherHigh Court's could be seen before deciding the point.

Accordingly, in the judgment of the Andhra Pradesh HighCourt reported in AIR 1964 AP 198 (Malakala Surya Rao And Others ..vs.. Gundapuneedi Janakamma), it has been held as follows:-"4........I do not find anything in the judgment of the Supreme Court or in any of the judgments of any Courts brought to my notice to warrant a conclusion that statements made by witnesses to a police officer' and reduced to writing cannot be used for contradicting witnesses in a civil proceeding under Section145 of the Evidence Act. Where the policy of the legislature in enacting Section 162 was to throwa solicitous protection round the accused, that very legislature has permitted the use of these statements for the purposes of contradiction under Section 145 of the Evidence Act. Much more so, such statements can be used in civil cases to achieve the same purpose, where neitherSection 145, nor any other provision of law specifically precludes their use. "In the said judgment, it has been found that the statements made in police records or statements recorded by a police officer could beused in a civil proceedings under Section 145 of the Evidence Act. No doubt, the said document Ex.B1-police record, which contains the statement of the plaintiff that the advance was only to the extent of Rs.3500/-, was recorded and it was admitted by PW.1 in his cross examination. Therefore, it cannot be said that the said documentEx.B1 has no evidentiary value and should have been rejected asfound by the first appellate court.

In a judgment of the Hon'ble Apex Court reported in AIR1966 SC 405 (Bharat Singh And Another ..vs.. Bhagirathi), it is categorically found that whenever admissions were duly proved, the said admission could be taken as proved, if they were not shown https://hcservices.ecourts.gov.in/hcservices/ contrary to those admissions. The relevant passage would be as follows:-"19. Admissions have to be clear if they are to be used against the persons making them. Admissions are substantive evidence by themselves in view of ss. 17 and 21 of the Indian EvidenceAct, though they are not conclusive proof of the matter admitted. The admissions duly proved or( admissible evidence irrespective of whether the party making them appear ad in witness box or not and whether that party when appearing as wines was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under s.145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to in admission made by a party is a matter different from its use as admissible evidence. "

Furthermore, the plaintiff did not get into witness box to deny his signature made in Ex.B1, nor to speak about the coercion exercised upon him to get his signature in the said document Ex.B1. In view of the approval of the admission given by the plaintiff in Ex.B1, it could be certainly considered against him as per the judgment of the Hon'ble Apex Court and the judgment of the High Court of Andhra Pradesh. Contrary to that, the first appellate court had rejected Ex.B1 as an inadmissible document, which is not in accordance with the proposition of law as enunciated above. The trial court had rightly accepted Ex.B1 and had deducted the said amount from the arrears of rent.

Now coming to the claim made in the plaint, the first appellate court had come to a conclusion that Exs.A1 and A2 were correctly maintained by the plaintiff and produced by him from proper custody. On a careful perusal, I could see that there was no signature obtained in Exs.A1 and A2 from the tenant, who paid the money as per the endorsements made therein. These endorsements made in Exs.A1 and A2 were not pleaded in the plaint. However, the said documents were produced in the evidence while PW.1, the son of plaintiff, was examined. Notice issued by the plaintiff in Ex.A3would show that the defendant was due for a sum of Rs.12,300/- and he did not pay the rent for about six years. When the notice Ex.A3 https://hcservices.ecourts.gov.in/hcservices/ says about the arrears of rent for six years, the entries shown in Exs.A1 and A2 would go to show that during the said period of default, the defendant was said to have made payments. The said notice was produced along with the plaint, which becomes the part of the plaint. Therefore, Exs.A1 and A2 should not have been relied upon since they are contrary to the pleadings of the plaintiff.

The trial court had accepted the claim for four months arrears in the year 1995 and had come to a conclusion that the plaintiff was entitled to Rs.1,200/- only for the year 1995. Buthad accepted the case of the plaintiff towards arrears for the year1996 and eight months for the year 1997 on the admission of DW.1.However, the trial court did not allow the claim of Rs.600/- for the months of November and December 1994 since, it was not admittedby DW.1. When once the plaintiff has come forward with the arrears of rent for certain period, it is for the defendant to show that she has paid the said amount where the tenancy and quantum of rent are admitted in between the parties. There was no receipt produced by the defendant for those two months and therefore, the trial court ought to have allowed the said amount of Rs.600/- also. Thefirst appellate court while calculating the said money had allowed four months arrears of rent for the year 1995 as Rs.1400/- instead of Rs.1200/- and had reversed the judgment of the trial court in its entirety. The said findings reached by the first appellate court is contrary to the facts and evidence adduced on either side. Apart from that the rejection of Ex.B1 and its contents is against the principles of law as stated in the aforesaid judgments. Therefore, the first appellate court is found to have not perceived the evidence properly and adhered to law in reaching its findings. Therefore, I have to necessarily interfere and set aside the judgment and decree passed by the first appellate court and toallow the appeal. At the same time, the mistake committed by the trial court in not including two months' arrears for the year 1994in the total arrears of rent has also to be corrected. Therefore, the Second Appeal is liable to be allowed in part and thus, the judgment and decree passed by trial court is restored with a slight modification regarding the quantum of arrears of rent as Rs.4,300/-(Rupees four thousand and three hundred only) instead of Rs.3,700/-as decreed by the trial court.