Sanjaykumar Chordia v. Mahaveer & Company HUF

(a) The respondents herein as plaintiffs filed the suit seeking thefollowing reliefs: "to pass judgement and decree against the defendants-a) directing the defendants to deliver vacant possessionof the premises in the second floor at No.36, ThirupalliStreet, Sowcarpet, Chennai-79, morefully described in theplaint schedule;b) directing the defendants to pay the plaintiffs a sum ofRs.1000/- per day by way of damages for illegal and unlawfuloccupation of the suit premises from January, 1999 till thedate of handing over vacant possession;c) directing the defendants to pay the plaintiff thearrears of rent totalling to Rs.18,000/- (from 1.10.1998 to31.12.1998) and arrears of electricity charges of Rs.3,829/- inall Rs.21,829/-;d) directing the defendants to pay the plaintiffs thecosts of the suit. "(extracted as such)(b) Written statement was filed by the defendants, resisting thesuit. Whereupon, the trial Court framed the issues.

(c) On the side of the plaintiffs, the first plaintiff examinedhimself as P.W.1 and marked Exs.A1 to A25. On the defendants' side, the1st defendant examined himself as D.W.1 and marked Exs.B1 to B19. Thehandwriting expert was examined as C.W.1 and Exs.C1 to C7 were marked as Court documents. (d) Ultimately, the trial Court dismissed the suit, as againstwhich, the appeal was filed. Whereupon the first appellate Courtreversed the findings of the trial Court and decreed the suit.4. Challenging and impugning the judgement and decree of the firstappellate Court, the second appeal has been filed by the defendants onvarious grounds inter alia thus: (i) The first appellate Court failed to adhere to Order 41 Rule 31of C.P.C. in rendering its findings quite antithetical to the reasonedfindings given by the trial Court. (ii) While the first appellate Court responding to the prayer ofthe plaintiffs to send Ex.B9 for expert opinion, so as to verify thedisputed signature of the first plaintiff, it failed to send along withit the admitted ante litem motam signatures of the first plaintiffavailable on record.

The sample signatures of the first plaintiff takenbefore the Court and the signatures found in Vdakalat and affidavitshould not have been relied on by the expert for giving his opinion asthough the disputed signature is a forged one. https://hcservices.ecourts.gov.in/hcservices/ (iii) Exs.B3, B6, B11 and B12 clinched the issue and they provedunambiguously and unequivocally that the defendants took on lease twoportions, so as to say, the ground and the second floor belonging to theplaintiffs for a total rent of Rs.6,000/-, so to say, at the rate ofRs.3000/- p.m. for each floor and for that alone Rs.50,000/- eachtotalling one lakh was paid as advance. But all these facts have notbeen considered by the first appellate Court. (iv) The self-contradictory statements made by the plaintiffs werenot considered by the first appellate Court. (v) The Tamil Nadu Buildings (Lease and Rent Control) Act eventhough was very much applicable to the demised premises, the firstappellate Court erroneously held as though the building concerned is anew building and it is exempt from the purview of the said Act.

5. Accordingly, the following substantial questions of law are foundsuggested in the second appeal. "a) Whether the judgement of the lower appellate Court isvitiated due to the fact that the lower appellate Court has notgiven its reasons for not agreeing with thefindings/conclusions of the trial Court?b) Whether the lower appellate Court was right in holdingthat the appellants herein cannot challenge the finding on themaintainability of the suit without filing a cross-objection.c) Whether the lower appellate Court was right inaccepting the report of the handwriting expert more so when thecomparison was not made with signatures in contemporaneousdocuments but with subsequent documents.d) Whether the lower appellate Court was right in grantinga decree for eviction without deciding on the validity of thenotice of termination?"(extracted as such)6. After hearing both sides and considering the materials availableon record, I am of the view that the following substantial questions oflaw could be framed for consideration: (i) Whether the first appellate Court erroneously held as though thepremises concerned is exempt from the purview of the Tamil Nadu Buildings(Lease and Rent Control) Act, by misinterpreting and misreading theevidence on record?(ii) Whether the first appellate Court failed to take intoconsideration the documentary and oral evidence adduced on the side ofthe defendants and more specifically Exs.B3, B6, B11 and B13?(iii) Whether the first appellate Court committed error in relying https://hcservices.ecourts.gov.in/hcservices/ upon the alleged unreliable opinion of the handwriting expert whichemerged out of comparing sample signatures, which were not ante litemmotam in nature, with the disputed signature?(iv) Whether the first appellate Court, without adhering to Order 41Rule 31 of C.P.C. reversed the findings of the trial Court.

(v) Whether the first appellate Court was not justified in awardingdamages for use and occupation by enhancing the old rate of rent by 25%,in the absence of any clinching evidence?(vi) Whether there is any perversity or illegality in the judgementof the appellate Court.7. Both sides took notice of the above substantial questions of lawand advanced arguments.8. Piloting the arguments on the side of the appellants/defendants, the learned counsel would put forth and set forth his submissions, whichcould succinctly and precisely be set out thus: (i) The first appellate Court is expected to take into considerationthe reasons given by the trial Court in its judgement and while reversingthe findings of the trial Court, reasons should be been given by thefirst appellate Court as to how such findings of the lower Court arewrong. However, in this case, the first appellate Court did not do so. (ii) The first appellate Court was not justified in obtaining samplesignatures before the Court when already ante litem motam admittedsignatures of the first plaintiff were available on record.

(iii) The handwriting expert's opinion was not a proper one to berelied on. (iv) The plaintiffs simply denied, so as to suit their plea that Exs.B3, B6 and B11 were not at all sent by the defendants to theplaintiffs. (v) The contradictory statements given by the first plaintiff in hisdeposition also was over looked by the first appellate Court. Anticipating that the ground floor also would be handed over to thedefendants by the plaintiffs as promised earlier, the former were payingrent for that ground floor also and that was why for both the floors, namely, the ground and the second floor, totally a sum of Rs.6,000/-p.m.was sent. (vi) The originals of Ex.A15 to A21-the receipts signed by the firstplaintiff were sent in a bunch in the cover-Ex.B2 and they were returnedby the defendants in person to the plaintiffs on the ground that those https://hcservices.ecourts.gov.in/hcservices/ receipts did not reflect the realities, as maliciously it was foundincorporated therein as though those rents were paid for only the secondfloor.

(vii) Ex.A24-the Temporary Assessment of House tax notice andEx.A14 would not in any way evidence that the building itself was a newbuilding, exempt from the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act. (viii) The incongruities as found embodied in the very plea of theplaintiffs as though the second floor alone was rented out for a sum ofRs.6000/- in favour of the defendants, were not considered by the firstappellate Court. Accordingly, the learned counsel for the appellants/defendants prayed forallowing the second appeal and for restoring the judgement and decree ofthe trial Court.9. Denying and impugning, gain saying and challenging and in a bidto torpedo and pulverise the arguments as put forth and set forth on theside of the defendants, the learned counsel for the plaintiffs wouldadvance his arguments which could pithily and precisely be set out thus: (a) The Rent Controller, in the earlier proceedings initiated byD1, held that the building was exempt from the purview of the Tamil NaduBuildings (Lease and Rent Control) Act, as it happened to be a newbuilding and the connected R.C.A. also was dismissed, confirming theorder passed by the Rent Controller, over which there was no C.R.P.filed.

Hence, the competent authorities under the Tamil Nadu Buildings(Lease and Rent Control) Act held that the demised premises did not comewithin the purview of the Act and as such, it is not open for the D1 torack up the same issue before the Civil Court. (b) Trial Court as well as the first appellate Court gave theirfindings that the demised premises was exempt from the purview of the Act, as it happened to be a new building, relating to which, no crossappeal or cross-objection was filed by the defendants before the firstappellate Court. (c) Exs.B3, B6 and B11-the letters were not received by theplaintiffs and those are all self-serving documents having no probativeforce, fabricated by the defendants themselves. (d) The first appellate Court appropriately and appositely, correctly and legally obtained the sample signatures of the irstplaintiff as per Section 73 of the Indian Evidence Act and sent thosesample signatures along with the sample signatures available in thevaklat as well as in the affidavit of the plaintiffs and in such a case, absolutely no wrong procedure was adopted by the first appellate Court https://hcservices.ecourts.gov.in/hcservices/ in sending those documents and in obtaining the expert opinion.

(e) The hand writing expert was examined as C.W.1 and he, on oathclearly and categorically deposed in support of the opinion given by himto the effect that the disputed signature found in Ex.B9 was not that ofthe first plaintiff and he also gave reasons to fortify his opinion. Thefirst appellate Court also applied its mind and accepted such findings, warranting no interference in second appeal. (f) Exs.A2, A6, A11 to A21 would all exemplify and demonstrate, prove and establish that the defendants took on lease the second flooronly for a monthly rent of Rs.6000/-, after paying a total advance ofRs.1,00,000/- in the form of two cheques. (g) Inasmuch as the defendants did not pay the electricity chargesand water charges, the plaintiffs were constrained to pay such chargesand claimed reimbursement, which was correctly and justly ordered infavour of the plaintiffs by the first appellate Court. (h) Regarding Ex.B11 is concerned, there is no reference to it inthe written statement at all.

The contention of the defendants that theoriginals of Ex.A15 to A21 in a bunch were sent in a cover to the firstdefendant, is also not found set out in the written statement. Anyamount of evidence without the back up of the pleadings should beeschewed. (i) The first appellate Court thread bare discussed the pros andcons of the matter and disagreed with the view taken by the trial Court, which was carried away by the self-serving documents of the defendants, in dismissing the suit. (j) The termination notice was properly given by the plaintiffs. Asper the amended Section 106 of the Transfer of Property Act, the suititself was filed 15 days after the receipt of such notice by both thedefendants in respect of the said residential suit premises. Accordingly, the learned counsel for the plaintiffs would pray for thedismissal of the second appeal. Substantial Question of Law (i):10. Section 30 of the Tamil Nadu Buildings (Lease and Rent Control)Act exempts new buildings from the purview of its operation for a periodof five years.

11. Indubitably and indisputably, D1 filed RCOP for the purpose ofgetting restored the electricity connection and at that time, the RentController himself gave a finding, after hearing the first plaintiffherein that the said building is exempt from the purview of the said Act, https://hcservices.ecourts.gov.in/hcservices/ because it happened to be a new building, over which, R.C.A.was filed fornothing but to be dismissed by the appellate Court confirming thefindings given by the Rent Controller.12. In my considered opinion, once the Rent Controller and theappellate authority give a finding that a particular building is exemptfrom the purview of the Act, because it happened to be a new building, then it cannot be challenged in the civil Court.13. If an authority under the special enactments holds that aparticular case does not fall within its purview, then it would not openfor the civil Court to hold to the contrary that the statutory authorityis having jurisdiction over that matter.

As such, if viewed, it is clearthat the contention of the defendants herein that only the RentController has got jurisdiction in this case relating to eviction, is amis-conceived one.14. Be that as it may, even on merits, both the civil Courts below, by placing reliance on Ex.A24-the temporary assessment notice andEx.A14-the demolition notice, held justifiably and correctly that thethen existed old building was demolished and the new building was erectedin that place and as such, in second appeal, this Court can not give anycontrary finding quite antithetical to the concurrent findings given byboth the Courts below on that point in the absence of any perversity orillegality in their finding.15. The learned counsel for the appellants/defendants also wouldsubmit plausibly and acceptably that temporary assessments are made onlyrelating to new buildings. 16. Incontrovertibly and ungainsayably no cross-appeal or cross-objection was filed by the defendants before the first appellate Courtwhen the plaintiffs' appeal was pending before it and in such a case asper the dictum of the Hon'ble Apex Court reported in 2010(7) SCC 717[ Laxman Tatyaba Kankate and another vs.

Taramati Harishchandra Dhatrak]and as found enunciated in the following excerpts,"24. It is a settled principle of law that before thefirst appellate court, the party may be able to support thedecree but cannot challenge the findings without filing thecross-objections. ..........................."the defendants now in this second appeal cannot agitate over the findingof both the Courts below that the suit property herein was exempt fromthe purview of the Tamil Nadu Buildings (Lease and Rent Control) Act.17. Wherefore, in the result, I am of the considered view that thecontention on the side of the appellants/defendants that the buildingconcerned was not a new building and that it attracted only the Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Buildings (Lease and Rent Control) Act, is not at all legallytenable. Accordingly, the substantial question of law (i) is decided asagainst the defendants and in favour of the plaintiffs.18.

Substantial Questions of Law (ii) to (iv):A recapitulation and 'resume' of relevant facts absolutely necessaryfor disposal of this second appeal would run thus: (a) The plaintiffs on the one side and the defendants and theirfather on the other side were once friends, it appears, admittedly. Onthe one side the plaintiffs would contend that they agreed to lease outonly the second floor for a monthly rent of Rs.6000/- after receiving anadvance of Rs.1,00,000/-(one lakh) repayable without interest, at thetime of vacating the premises by the defendants. (b) However, the contention on the side of the defendants was thatthe ground floor as well as the second floor was agreed to be leased outby the plaintiffs in favour of the first defendant for a monthly rent ofRs.3000/- each and that too, after receiving a sum of Rs.50,000/- asadvance, for each of the portions.19. The contention on the side of the defendants was that in theground floor certain carpentry and painting work were to be undertaken bythe plaintiffs and that alone resulted on the part of the plaintiffs indelaying the handing over of the ground floor in favour of thedefendants; however, subsequently, the plaintiffs turned turtle and had avolte face and dished out a plea as though they agreed to lease out onlythe second floor and not the ground floor.20.

In support of the contention of the appellants/defendants, theywould rely mainly on Ex.B3, Ex.B6 and Ex.B11. It is therefore just andnecessary to analyse those documents.21. Ex.B3 is the letter dated 3.3.1998 written by the firstdefendant to the plaintiffs incorporating the terms and conditions of thelease relating to the said two floors. The plaintiffs would gainsay thereceipt of such letter and according to the plaintiffs, it is a self-serving letter.22. I recollect the following maxims: (i) Affirmatis est probare – He who affirms must prove. (ii) Affirmanti, non neganti incumbit probatio – The burden of proof lies upon him who affirms, not upon one who denies. The above sister maxims would evince that the burden is on the person whoaffirms it. Here, the defendants affirms that it was D1, who sent Ex.B3to the plaintiffs; but the former could not prove it. On the defendantsside, they seek to explain by pointing out that it was handed over in https://hcservices.ecourts.gov.in/hcservices/ person.

But the plaintiffs would gainsay the same. No acknowledgementendorsement also was found obtained in Ex.B3. The normal conduct of anyone is that if a letter or a document is prepared with a carbon copy thenafter parting with the original, in the carbon copy concerned theacknowledgement endorsement should be obtained or a separate receipt oracknowledgement should be obtained. But in this case, that was not doneso by the defendants. 23. Ex.B6 is the letter dated 12.5.1998 purported to have beenwritten by the first defendant to the plaintiffs and he claims to havedespatched it as per a postal receipt. However, the plaintiffs woulddeny the receipt of such letter. On the other hand, the plaintiffs wouldcontend that the demand draft-Ex.A16 alone was found in the said coversent as per the postal receipt.24. In this connection, the learned counsel for the defendants woulddraw the attention of this Court to the cross-examination of P.W.1, thefollowing are the concerned excerpts:@/ // / // / gpujpthjpfs; gy fojk; vGjp cs; shh; fs; vd;W brhd; dhy; rhpay;y/ xnu xU Kiw jhd; fojk; vGjp ,Uf;fpd; whh; fs;/ 13/5/98 md; Wfojk; vGjp miu ehd; bgw;W bfhz; ljw; fhd m";ry; xg;g[if ml; il k;lLk;gp/rh/M/1 MFk;/ 14/9/98 md;W gjpt[ jghy; K:yk; xU brf; te; jJ/ 2/11/98 y;ve; jtpjkhd fojKk; ,y;yhky; fth; kl; Lk; vdf;F te; jJ/ / / / / /25.

As such, placing reliance on the said answer given by the firstplaintiff as P.W.1 during cross-examination, the learned counsel for thedefendants would develop his argument that this is a clear admission onthe part of the first plaintiff relating to the receipt of the originalof the letter dated 12.5.1998, i.e. the original of Ex.B6. 26. However, the learned counsel for the plaintiffs would draw theattention of this Court to the cross-examination of P.W.1 on 21.7.2005and an excerpt from it would run thus:@gp/rh/M/1y; 13/5/98 y; xU ouhg;l; kl; Lk; ehd; bgw; nwd;/ mjw;F ve; jkhjj; jpw;F mDg;gg; gl; lJ vd;W ehd; nfl; ftpy; iy/ thlif ml; thd;!;bfhLf;Fk;nghJ 1/3/1998 y; xU fthpy; byl; lh; bfhLj;jhh;/ mJ vd; dplk; nehpy; bfhLf;fg; gl; ljhFk;/ // // / / / / /@placing reliance on the same, the learned counsel for the plaintiffswould submit that the first plaintiff clarified, during cross-examinationon 21.7.2005 that only Ex.A16-the demand draft was received by him as perthe said postal receipt.27.

In this connection, I recollect the trite proposition of law https://hcservices.ecourts.gov.in/hcservices/ that preponderance of probabilities would govern the adjudication incivil cases and it is also well settled that the answer given by awitness during cross-examination should not be taken in isolation and onthat basis he should not be mulcted with liability.28. It is the consistent case of the plaintiffs that they leased outonly the second floor for a monthly rent of Rs.6000/- per month, afterreceiving two cheques each for Rs.50,000/- bearing Nos.436793 and 681995and by way of acknowledgement, the first plaintiff issued receipt as perEx.A25 dated 3.3.1998 and the said exhibit was marked during the cross-examination of D.W.1(D1).29. Inasmuch as the plaintiffs tried to fasten the defendants withliability and also knowledge about the factum of the defendants havingtaken on lease the second floor for a sum of Rs.6000/- per month, afterpayment of Rs.one lakh as advance, the defendants, as a defensive measureplaced reliance on Ex.B6-the letter dated 12.5.1998 as though theyallegedly informed the plaintiffs that the lease was concerning twofloors for a total rent of Rs.6000/- p.m.

30. The learned counsel for the defendants would submit that the twocheques bearing Nos.436793 and 681995 referred to in Ex.A25 could nothave been given on 1.3.1998 because that day happened to be a Sunday andaccording to P.W.1 himself Sunday was holiday for his office. 31. A pertinent question arises as to whether such answer could betaken for disbelieving the plea of the plaintiffs. Nowhere it is statedthat on Sunday, the first plaintiff would not be available in office. Itis common knowledge that on Sundays office might not function, but theperson relating to that office might be available in the office. Assuch, on the mere fact that 1.3.1998 happened to be a Sunday, the versionof the plaintiffs cannot be disbelieved in toto.32. There is no explanation at all as to why those two chequesshould be written on 1.3.1998 and that they should be handed over, as perD.W.1, on 3.3.1998.33. Ex.B9 is the most crucial document, which the defendants reliedon so as to fasten the first plaintiff with his alleged commitment tolease out both the floors for a total monthly rent of Rs.6000/-. In thewritten statement also there is no whisper that the two cheques ofRs.50,000/- each were issued concerning each of the floors.

It is foundstated in the plaint generally that a sum of Rs.1,00,000 was paid asadvance for taking on lease the premises. The plaintiffs would deny intoto his purported signature in Ex.B9. However, on the other hand theplaintiffs relied on Ex.A2-the purported letter dated 1.3.1998 written byD1 agreeing for the terms and conditions of the lease, as projected bythe plaintiffs before this Court. D1 would deny his signature therein. It so happened that even when the matter was pending before the trial https://hcservices.ecourts.gov.in/hcservices/ Court, steps were taken by D1 to get his disputed signature in Ex.A2being verified by a handwriting expert, but the trial Court rejected itand as against which, the C.R.P.was filed for nothing but to bedismissed. It is also a fact that before the trial Court, the disputedsignature of the first plaintiff in Ex.B9 was not attempted to be gotverified by a handwriting expert.

Only before the first appellate Courtsuch a measure was taken, perhaps, it might be the main reason for thetrial Court to misdirect itself, in placing reliance on Ex.B9, which wassubsequently found to be a forged document and the first appellateCourt, as detailed and delineated supra, obtained the sample signaturesof the first plaintiff invoking Section 73 of the Indian Evidence Act andalso sent such sample signatures along with the other signatures of thefirst plaintiff found in the vaklat and other documents. 34. At this juncture, I would like to point out that the generalprinciple is that normally contemporaneous signature or ante litam motemsignature should be taken as sample signature and if such signatures arenot available, then the Court can direct the party concerned to signbefore it the sample signatures and send them for verification with thedisputed signature. Admittedly and indisputably, in this case, the antelitam motem signatures in the form of admitted receipts were availablebefore the trial Court, and it seems, both sides did not help theappellate Court in sending those ante litam motem signatures to thehandwriting expert.

35. Now the core question arises as to whether on that ground thereport of the handwriting expert-Ex.C1 should be discarded or rejected.36. In this connection, the learned counsel for the plaintiffs wouldcite the decision of the Honourable Apex Court reported in (1979) 2SUPREME COURT CASES 158 – THE STATE (DELHI ADMINISTRATION) VS. PALI RAM,certain excerpts from it would run thus: "25. A sample writing taken by the court under the secondparagraph of Section 73, is, in substance and reality, the samething as “admitted writing” within the purview of the firstparagraph of Section 73, also. The first paragraph of thesection, as already seen, provides for comparison of signature, writing, etc. purporting to have been written by a person withothers admitted or proved to the satisfaction of the court tohave been written by the same person. But it does notspecifically say by whom such comparison may be made.

Construedin the light of the English Law on the subject, which is thelegislative source of this provision, it is clear that suchcomparison may be made by a handwriting expert (Section 45) orby one familiar with the handwriting of the person concerned(Section 47) or by the court. The two paragraphs of the Sectionare not mutually exclusive. They are complementary to eachother. https://hcservices.ecourts.gov.in/hcservices/

Section 73 is therefore to be read as a whole, in thelight of Section 45. Thus read, it is clear that a courtholding an inquiry under the Code of Criminal Procedure inrespect of an offence triable by itself or by the Court of Session, does not exceed its powers under Section 73 if, in theinterests of justice, it directs an accused person appearingbefore it, to give his sample writing to enabling the same tobe compared by a handwriting expert chosen or approved by thecourt, irrespective of whether his name was suggested by theprosecution or the defence, because even in adopting thiscourse, the purpose is to enable the court before which he isultimately put up for trial, to compare the disputed writingwith his (accused’s) admitted writing, and to reach its ownconclusion with the assistance of the expert.30. The matter can be viewed from another angle, also. Although there is no legal bar to the Judge using his own eyesto compare the disputed writing with the admitted writing, evenwithout the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate tobase his finding with regard to the identity of a handwritingwhich forms the sheet-anchor of the prosecution case against aperson accused of an offence, solely on comparison made byhimself.

When this Court raised the query to the learned counsel for thedefendants as to why when bad blood started running in the relationshipof the plaintiffs and the defendants, the latter should continue to paysimply Rs.6000/- p.m. instead of Rs.3000/-p.m. as claimed by them, forwhich, the learned counsel for the defendants would unconvincingly answerthat because bad blood started running in their relationship only fromthe month of November 1998, the defendants were going on paying Rs.6000/-p.m. for both the floors, i.e. for the ground floor as well as the secondfloor, without any demur. On the contrary, the evidence on record reliedon by the defendants would demonstrate and display that the defendantsvirtually lost all faith in the genuineness of the plaintiffs, asaccording to them, in Ex.B3 itself, which is not admitted by theplaintiffs, they stated thus: "I am enclosing herewith the above two cheques towardsrental advance against ground floor and second floor consistingof three bedrooms, two store rooms, one kitchen, hall and twobathrooms in each floor and open gallery in second floorsubject to following conditions.1. The possession of both floor will be given to me aftercompletion of painting and carpentry work on 15.3.1998positively else interest will be charged on advance amount @24% p.a.2. Rent will be Rs.6,000/- for both the floors.3. Advance amount will be returned or adjusted towardsrent at any time in case of any dispute arises between both ofus before vacating the premises. 4. The rent of Rs.6,000/- will be inclusive of Metro waterand electricity charges and after providing the separate meterfor each floor by you. If I consume electricity more than 500units per month, I will pay for the excess.5. The metro water & electricity charges will be paid byyou directly to the concerned authority and in case of defaultit can be paid by me and same will be adjusted in thesubsequent monthly rent.6. The tenancy shall be for the period of five years witheffect from 15.3.1998.The above conditions were already discussed with you. Ifyou accept the above, please receive the cheque and present inyour bank else return the same to me with the bearer of thisletter. "(emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/

It is therefore clear that even according to the defendants, atthe time of parting with the cheques for advance, there were no consensusad idem and there was no positive response from the plaintiffs relatingto the portions to be let for tenancy and as such, the defendants couldnot have paid Rs.6000/- every month as contemplated under Exs.A15 to A21for two floors and also the defendants cannot be believed that they paidRs.6000/-p.m. uptil October 1998 without insisting for rent receipt. Inthe disputed document Ex.B6-the letter dated 12.5.1998, the firstdefendant stated thus: "I regret to intimate you that you have not yet startedany of the Carpentary and Painting work in the said portionstill by this day. Therefore, we are unable to occupy theground floor. However, I have occupied the II Floor with myfamily members in urgency. I have also paid you the rent forthe month of March 1998 (15/3 to 15/4' 98) in cash andenclosing herewith the above pay order towards rent for themonth of April 1998, for both floors without prejudice to avoidany misunderstanding between us.I once again regret to point out that earlier, after receivingthe cash of Rs.6,000/- towards rent for the month of March, youhad sent the rent receipt in which no amount was mentioned andeven Revenue stamp was not affixed with no reference to groundfloor so it was not accepted by us and was returned to youkeeping the xerox copy of the same with us. At this junction I want to clear the matter that Rs.6,000/- isthe rent fixed for both the floor and not for the II floor onlyplease send proper receipt for the month of March and Aprilwithout fail. Also please complete the Carpenteary andpainting work and handover the ground floor to us immediately. In case of not complying with the agreed terms wide our letterdated 3.3.98, you are requested to return our money withinterest @ 24% p.a.so that we can go for any other suitableplace in city. However, if you are ready to comply with thedemands I am ready to occupy the ground floor and will continueto pay my rent. Hope you will understand the facts and do needful immediately. "

It is therefore clear from the stand of the defendants that badblood started running in the relationship of the plaintiffs and thedefendants even much earlier to November 1998 and even in Ex.B6-theletter dated 12.5.1998, as per the defendants, D1 categorically admittedthat the rent receipt for the month of March was received by D1 i.e. theoriginal of Ex.A15, however, he would simply state that it was returnedback without any evidence of having so returned. He would also contend https://hcservices.ecourts.gov.in/hcservices/ that the first plaintiff was not in the habit of issuing rent receiptthen and there. As such, the plea and the evidence on the side of thedefendants are fraught with falsities and inconsistencies.

Hence, the preponderance of probabilities would clearly goagainst the defendants and it is only an after thought on the part of thedefendants to place reliance on Ex.B3 as well as Ex.B6-the letter dated12.5.1998 which are denied in toto by the plaintiffs. As such, the firstappellate Court considered those details and rendered its reasonedJudgement dis-agreeing with the trial Court's Judgement without violatingOrder 41 Rule 31 of C.P.C. 59 Accordingly, the substantial questions of law (ii) to (iv) areanswered in favour of the plaintiffs and as against the defendants asunder: Substantial Questions of Law (ii) is answered to the effect that thefirst appellate Court took into consideration the oral and documentaryevidence adduced on both sides and properly rejected Exs.B3, B6 and B11.Substantial Question of law (iii) is answered to the effect that thehandwriting expert's opinion is reliable and the first appellate Courtrelied upon it properly. Substantial Question of law (iv) is answered to the effect that thefirst appellate Court properly adhered to Order 41 Rule 31 of C.P.C. andreversed the findings of the trial Court.

Substantial Question of law No.(v):Relating to arrears of electricity charges are concerned, thelearned counsel for the plaintiffs would correctly invite the attentionof this Court to the fact that even in Ex.B3 the defendants went to theextent of pleading that the rent of Rs.3000/- would include evenelectricity charges and water charges and in such a case, there was animplied admission on the part of the defendants that they did not paythe electricity charges. Furthermore, the electricity supply wasdisconnected and subsequently, the first defendant filed writ petitionand got electricity connection, after executing a bond in favour of the Electricity Board and these facts are evident from Ex.B19. As such, thefirst appellate Court correctly considering those facts orderedreimbursement of such charges also, by the defendants.

The first appellate Court awarded damages by enhancing the oldrent of Rs.6000/- per month by 25%. The learned counsel for theplaintiffs would submit that such awarding of damages was in accordancewith law only as it is on the lower side. The learned counsel for thedefendants would submit that absolutely there was no basis forquantifying such damages. https://hcservices.ecourts.gov.in/hcservices/

At this juncture, I would like to point that when parties arefighting at arms length; they could not see eye to eye; each one istrying to cut the ground under the feet of the others; they are at thethreat of each other, it is always better for the Court to seek for someevidence, before ordering damages by enhancing over and above the oldrate of rent which was payable by the tenant in favour of the landlordbefore termination of tenancy.

In this case, no clinching evidence was adduced in that regard. No doubt, in certain cases for awarding meagre enhancement, no evidenceis required, as the Court itself can take judicial notice of thedevelopments. But in this case, what I would like to point out is thatinstead of collecting only a months' rent as advance, the plaintiffscollected one lakh as advance; no doubt, they never under took to payinterest while repaying that advance. But for the defendants partingwith one lakh had they deposited one lakh minus one month rent in a fixeddeposit, by this time they would have got sizeable interest as more thana decade elapsed from the date of payment of such huge advance. Henceconsidering the pro et contra, I am of the view that the damages couldbe at the same old rate of rent earlier, which was payable by thedefendants in favour of the plaintiffs before the termination of thetenancy. Accordingly, that portion of the decree of the first appellateCourt awarding enhancement at 25% over and above the old rent aloneshall stand set aside and the defendants are liable to pay at the sameold rate of rent per month as damages for use and occupation, aftertermination of tenancy till delivery of possession of the said secondfloor.

Relating to the invalidity of the termination notice isconcerned, the learned counsel for the plaintiffs himself in all fairnessstated that in view of the amended Section 106 of the Transfer of Property Act and also in view of the fact that the suit itself was filed15 days after the receipt of termination notice by the defendants, thequestion of challenging or impugning the validity of the terminationnotice would not arise.

In view of the ratiocination adhered to above, the substantialquestions of law are answered in favour of the plaintiffs and as againstthe defendants and ultimately, the second appeal is partly allowed to theextent of setting aside the part of the judgment and decree of the firstappellate Court in enhancing 25% over and above the old rate of rent asdamages for use and occupation alone and the rest of the findings of thefirst appellate Court are confirmed. Accordingly, the decree shallfollow.

The learned counsel for the appellants/defendants would make anextempore submission that six months' time at least might be granted forhanding over possession of the premises concerned. https://hcservices.ecourts.gov.in/hcservices/

The learned counsel for the respondents/plaintiffs would opposethe same.

However, taking into consideration the fact that the defendantsare using the said premises for their residential purpose and that itwould take some time for them to vacate it, I would like to grant fourmonths' from this date for vacating and handing over possession of it tothe plaintiffs. The defendants shall not drive the plaintiffs to fileE.P., to get delivery and to that effect an affidavit of undertakingshall be filed by the defendants within a period of 10 days from thisdate.