Eviction for rent default turned on proof of tenancy through a carbon-copy house permit admitted without objection. The Court upheld the landlord–tenant relationship and default findings, rejected the evidentiary challenges, and dismissed the tenant's second appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S. A. No. 74 of 2007
TISCO Mazdoor Union, Adityapur Complex, a Registered Union bearing Registration No. 1583, having its Registered Office at:- 41, P. Road, Bistupur, Post Office: Bistupur, Police Station: Bistupur, Town Jamsedpur, District: Singhbhum East … … Appellant- Respondent- Defendant Versus
The Tata Iron & Steel Company Limited, a Public Limited Company with limited Liability incorporated under the Indian companies Act having its Registered Office at 24, Homi Modi Street, Fort, Bombay and its place of work at Jamshedpur, Pargana: Dhalbhum, Post Office & Police Station:- Golmuri, District:- Singhbhum East
… … Respondent-Appellant-Plaintiff
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
For the Appellant : Mr. R. N. Sahay, Sr. Advocate : Mr. Rajesh Lala, Advocate For the Respondent : Mr. Rajeev Ranjan, Sr. Advocate : Mr. P.A.S. Pati, Advocate
15 /02.04.2019
1. Heard Mr. R. N. Sahay, Senior counsel appearing on behalf of the appellant along with Mr. Rajesh Lala, Advocate.
2. Heard Mr. Rajeev Ranjan, Senior counsel appearing on behalf of the respondent along with Mr. P.A.S. Pati, Advocate.
3. This appeal is directed against the judgment dated 25.01.2007 and decree dated 06.02.2007 passed in Title Appeal No. 18 of 1994 by Learned 1st Additional District Judge, Jamshedpur whereby the learned lower appellate court has been pleased to set aside the judgment dated 30.06.1994 and decree dated 15.07.1994 passed in Eviction Suit No. 47 of 1990 by the learned court of 5th Subordinate Judge at Jamshedpur. Eviction Suit No. 47 of 1990 was filed under Section 11 (1) (c) and 11 (1) (d) of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982 by the plaintiff.
4. Admittedly , the present appeal has to be decided on the substantial questions of law framed vide order dated 07.03.2008, which are as follows:
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5. Counsel for the appellant submits that the case of the plaintiff in the Eviction Suit No. 47 of 1990 was as under:
6. The counsel for the appellant submits that the defendant appeared and filed its written statement. According to the defendant, the plaintiff had no cause of action and right to sue and that the suit itself was not as maintainable. It was pleaded that none of the grounds under Section 11 of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982 is available to the plaintiff for eviction of the defendant and that the defendant union is authorized by the Government and filed a complaint case under Industrial disputes Act, 1947 being Case No. C/1 Case No. 134 of
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1990 against the plaintiff and its officers. Accordingly, it was pleaded in the written statement that the suit was filed by way of pressure tactics for compelling the defendant not to pursue the complaint case. The defendant also raised a plea that the description of the suit premises as given in the plaint was vague and indefinite and the same lacks material particulars, such as area of the suit premises, boundary, plot number, number of rooms etc. The plaintiff had not sent any notice to the defendant before filing of the instant Eviction Suit, as required under the law. The house was never meant for the accommodation of the plaintiff’s employees as monthly tenant under the plaintiff on a monthly rent of Rs. 38.35 Paise per month besides electricity as per meter reading and Municipality Charges and that there is no relationship of landlord and tenant between the parties. Accordingly, there was no question of making payment of monthly rent to the plaintiff. In such circumstances, it was pleaded that the defendant cannot be evicted on the alleged default from September 1989 and making of repeated demands by the plaintiff does not arise.
7. Counsel for the appellant further submits that it was the case of the defendant that there is not even a single counter foil of alleged rent receipt showing payment of house rent by the defendant and the quarter was never allotted to the defendant as per the alleged house permit. It was also pleaded that the house permit is the forged, fabricated and manufactured document for the purpose of the suit. The defendant has also questioned the locus of the person who had signed the Vakalatnama and the plaint. 8. On the basis of the pleadings of the parties following issues were settled for just and final decision of the suit:-
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9. That after framing of the issues, altogether five witnesses were examined on behalf of the plaintiff and there were eight exhibits. So far as defendant is concerned , it had also adduced both oral and documentary evidence and there was only one witness on behalf of the defendant and it had produced only one exhibit, which was a certified copy of the Order Sheet dated 07.07.1990 passed in Complaint Case No. 134 of 1990 under Industrial Disputes Act, 1947.
10. Counsel for the appellant submits that after hearing the parties, the learned trial court was pleased to dismiss the suit on contest with cost by judgment dated 30.06.1994 and decree dated 15.07.1994 passed in Eviction Suit No. 47 of 1990 passed by the 5th Subordinate Judge at Jamshedpur.
Arguments of the appellant
11. By referring to trial court judgment, counsel for the appellant submits that the issue nos. 4 and 5 were decided vide Para-12 of the trial court judgment. He submits that the aforesaid substantial questions of law which are required to be decided in this case relate to issue nos. 4 and 5, as framed by the learned trial court and relevant exhibits which fall for consideration, are exhibit nos. 1, 2 and 3.
Exhibit-1 was the house permit;
Exhibit-2 was the Signature of Sri Nagendra Singh , Estate Manager of Plaintiff on a computerized statement
Exhibit-3 was the Computerized statement of Account as produced by the plaintiff.
12. The counsel, by referring to Para-12 of the learned trial court’s judgment, submits that the learned trial court while considering
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Exhibit-1 held that it was not the original copy of the house permit, but was a carbon copy, which was not stamped at all and further there was no case by the plaintiff in its pleadings that the original copy of the house permit was handed over to Sri S. N. Singh, General Secretary of the Defendant- Union at the relevant time, who had made his signature on the house permit and all the copies. In connection with this document, the learned trial court held that considering the pleadings of the plaintiff, the Exhibit-1 cannot be accepted and was inadmissible in the eyes of law. The counsel for the appellant submits that the argument of the plaintiff ,that Exhibit-1 was merely a letter of allotment, which neither required registration nor stamp and that it was admissible for the sole purpose of showing the relationship of landlord and tenant between the parties, was rejected by the learned trial court on the ground that neither Exhibit-1 is an evidence admissible in law nor it is a registered document nor stamped, as such, Exhibit-1 is inadmissible in the eyes of law and the learned court totally rejected Exhibit-1 filed by the plaintiff.
13. The counsel for the appellant submits that so far as Exhibit-3 is concerned, which is a computerized statement filed on behalf of the plaintiff to show that the defendant is a defaulter, the learned trial court has held that Exhibit-3 is not to be accepted in evidence to hold that the defendant is the tenant of the plaintiff and any rent was paid by it up to August 1989 and then rent from September 1989 is due. Accordingly, the learned court below by considering these two exhibits and other materials on record held that there is no relationship of landlord and tenant between the plaintiff and the defendant and also held that the plaintiff has not been able to prove that the defendant was defaulter in payment of rent for consecutive two months and accordingly, dismissed the suit by a well-reasoned judgment.
14. Counsel for the appellant further submits that the judgment passed by the learned trial court was in accordance with law in
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view of the fact that for the purposes of adducing secondary evidence, certain procedures are required to be followed which are mentioned in Section 66 of the Indian Evidence Act, 1872 . He further submits that on the one hand there was no such pleading that the house permit was prepared in three copies by carbon and the original copy of the house permit was handed over to Sri S. N. Singh, General Secretary of the Defendant Union at that time and on the other hand, no procedure as prescribed under Section 66 of the Evidence Act, 1872 has been followed for the purposes of adducing secondary evidence and accordingly, in the instant case, the secondary evidence could not have been taken into consideration. The counsel submits that this aspect of the matter has been rightly considered by the learned trial court. In order to support the judgment passed by the learned trial court, counsel for the appellant has relied upon a judgment reported in 2000 (2) BBCJ 221 (State of Rajasthan and others Vs. Khemraj and Ors.) and referred to Para Nos. 2 and 3 of the said judgment.
15. Counsel for the appellant further submits that the learned lower appellate authority decided the case on the same issue and did not frame any point for determination as required under Order XLI, Rule 31 of the Code of Civil Procedure. However, while deciding the issue nos. 4, 5 and 6, the learned lower appellate court referred to Sections 63, 65 and 66 of the Indian Evidence Act, 1872 and has also referred to the plaint to hold that in view of proviso to Section 66, no notice was required. The lower appellate court also held that considering the nature of the case, the defendant must have known that he will be required to produce the house permit as the plaintiff in its plaint has taken specific plea that tenancy was created on the basis of house permit. Accordingly, it was held by the learned lower appellate court that the defendant-union can be inferred to have been knowing that they will be required to produce the original House Permit. The learned lower appellate court also considered the fact that the Exhibit-1 was admitted
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without objection from the side of the defendant and accordingly, the defendant having not objected regarding admissibility of this Exhibit, at the time of it being adduced in evidence, which was evident from order-sheet dated 30.11.1982 of the Eviction Suit, the learned lower appellate court held that the Exhibit-1 which was secondary evidence, was admitted in evidence in accordance with law. On the basis of Exhibit-1, the learned lower appellate court held that there was a relationship of landlord and tenant between the parties.
16. So far as the default in payment of rent is concerned, the learned lower appellate court held that it was the specific case of the defendant that they had never paid rent and therefore, the default stood admitted and on the basis of this finding, the learned lower appellate court allowed the appeal.
17. The counsel during the course of argument has submitted that the learned lower appellate court has not specifically dealt with the reasons which were given by the learned trial court and has given its own reasoning to set-aside the judgement passed by the learned trial court. He further submits that otherwise also, the reasoning which has been given by the learned lower appellate court, was not in accordance with law in view of the aforesaid judgment which has been relied upon by the counsel for the appellant in support of the judgment passed by the learned trial court.
18. Counsel for the appellant further submits that otherwise also, Exhibit- 1 being unregistered and unstamped, the same could not have been taken into evidence. This aspect of the matter has not been properly considered by the learned lower appellate court.
19. The counsel for the appellant has relied upon the judgment passed by Hon’ble Supreme Court reported in 1966 BLJR 103 (Uma Devi Vs. Bimaldeo Narain and Another) and has submitted that in Para-7 of the said judgment, the argument on behalf of the appellant of the said case was accepted that the unregistered Kirayanama was not admissible in evidence in view of Section 107
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of Transfer of Property Act, 1882 and accordingly, it was held that the said document cannot be look into for the purposes of ascertaining the contract between the parties. He further submits that in the instant case, there was a dispute regarding signature of Shri S. N. Singh on Exhibit-1 and in case of such dispute, the signature was required to be examined by a handwriting expert, for which no steps were taken by the plaintiff. On this point he also refers to judgment passed by Hon’ble Manipur High Court reported in 2013 SCC OnLine Mani 176 (Ngangbam Ningol Randhoni Devi Vs. R. Sabitri Devi) para 8, 9, 13 and 14.
20. The counsel further submits that the learned lower appellate court has misdirected itself in deciding the issues and accordingly, on the substantial questions of law which has been framed by this Court vide order dated 07.03.2008, it should be held that the learned lower appellate court has committed a grave error in law in holding that there is a relationship of landlord and tenant between the parties as there was no cogent evidence in the eyes of law to establish the relationship of landlord and tenant between the parties and accordingly there is no question of any default in payment of rent on the part of the defendant calling for eviction of the defendant.
Arguments of the counsel for the Respondent
21. Learned senior Counsel for the respondent, on the other hand, submits that the learned trial court while discussing Exhibit-1 has committed grave error in law by not properly considering the fact that Exhibit-1 was admitted in evidence without any objection from the side of the defendant and that Exhibit-1 was the carbon copy of the house permit , and, the question of its original being in possession of the plaintiff did not arise. Accordingly, he submits that the formal requirement for the purposes of adducing secondary evidence, as contemplated under Section 66 of the Evidence Act, 1872, was not required to be followed in view of proviso to Section 66 of the Indian Evidence Act, 1872. This aspect
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of the matter has been totally ignored by the learned trial court and has been rightly considered by the learned lower appellate court. 22. Counsel for the respondent further submits that so far as the document Exhibit-1 is concerned, it has been recorded by the learned trial court itself that technically no doubt that house permit (exhibit-1) has been proved, but at the same time the Exhibit-1 was rejected on the ground that the primary evidence was not produced. He submits that the entire case depends upon, as to whether this secondary evidence i.e. Exhibit-1 was admissible in evidence or not, because even as per the judgment passed by the learned trial court, if this secondary evidence is admissible, then technically the Exhibit-1(House Permit) was proved.
23. Counsel for the respondent has referred to a judgment passed by Hon’ble Supreme Court reported in (2004) 7 SCC 107) (Dayamathi Bai Vs. K. M. Shaffi) and has referred to Para-13 onwards of the said judgment. He submits that the facts which are involved in this case regarding the admissibility of Exhibit-1 without objection are quite similar to that of the facts of the case in the aforesaid judgment. He submits that in the said case also, one document was admitted in evidence without objection and the matter regarding admissibility of the document and the proof of the document has been duly considered by the Hon’ble Supreme Court in Para Nos. 13 and 14 and it has been held that objection in connection with admissibility of the secondary evidence is required to be taken at the threshold, at the stage of its filing and such objection cannot be taken at a later stage. He submits that in the instant case also, Exhibit-1 was admitted in evidence without objection. So far as the proof of Exhibit-1 is concerned, the learned trial court itself has held that technically the house permit was proved but Exhibit-1 was rejected only on the ground that it was secondary evidence and the primary evidence was not produced. 24. Further, so far as Exhibit-3 is concerned, counsel for the respondent submits that the learned trial court has considered
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Exhibit-3 in connection with the proof regarding default of two months for the purposes of maintaining a suit for eviction on account of default. However, at the end of its consideration, the learned trial court has simply stated that this document also does not establish tenancy and also does not prove that the defendant had defaulted in payment of rent for two consecutive months. He submits that Exhibit-3 was never rejected by the learned trial court. He further submits that if the relationship of landlord and tenant between the parties is established, there is no further requirement of proving the default in payment of rent, as it is the specific case on behalf of the defendant that rent was never paid. Accordingly, he submits that the learned lower appellate court has considered these aspects of the matter and has rightly allowed the appeal.
25. Counsel for the respondent further submits that so far as the registration and stamping of Exhibit-1 is concerned, the same has been considered by the lower appellate court by a well reasoned judgment. He further submits that the house permit was not a kirayanama or a tenancy agreement rather it was just a carbon copy of house permit which does not require registration or affixing of stamp. He submits that although the learned lower appellate court has not formulated any point for determination in so many words, but every issue which was framed by the learned trial court, has been considered by the learned lower appellate court and accordingly, it can be said that the learned lower appellate court has considered every aspect of the matter as well as the issues were within the knowledge of the parties and accordingly, on this point no illegality has been committed by the learned lower appellate court.
26. Counsel for the respondent then submits that in judgment passed by Hon’ble Supreme Court reported in (2002) 10 SCC 496 (Krupanidhi Educational Institution Vs. Super Sale Corporation) the document was marked subject to objection, but ultimately no objection was taken during evidence and that document was
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ultimately treated as admitted without any objection. He submits that in the instance case admittedly the Exhibit-1 and Exhibit-3 were admitted without objection. He has also referred to the judgment passed by Hon’ble Supreme Court reported in (1978) 4 SCC 65 (State of Kerala Vs. M. M. Mathew and Another) to submit that although the signature is required to be proved by the person who signs on it, but there are ways and methods of proving the signature and this aspect of the matter has been considered at the later portion i.e. Para-3 of the said judgment. The counsel submits that in the instant case, evidence was led that the house permit was handed over to Sri S. N. Singh, General Secretary of the Defendant Union at that time and the carbon copy of the same was produced which was Exhibit-1 and the signature was identified by the witness of the plaintiff. If the defendant was to dispute the signature or if the defendant was to prove that the same was not handed over to Sri S. N. Singh, General Secretary of the Defendant Union, they ought to have produced Shri S. N. Singh as a witness. Counsel for the respondent further submits that during his crossexamination, the witness of the defendant has himself stated that Shri S. N. Singh was present in the court. This is over and above the fact that even the learned trial court has held that the house permit was technically proved and had rejected the same only on the ground that the same was a secondary evidence.
27. In response, counsel for the appellant again referred to the judgment passed by Hon’ble Manipur High Court reported in (2013) SCC Online Mani 176 (Ngangbam Ningol Randhoni Devi Vs. R. Sabitri Devi) and by referring to Para 10 and 13 of the said judgment, has submitted that if there is a dispute in connection with the signature, then the signature ought to have been sent for examination, failing which it cannot be said that the signature of Shri S.N. Singh was duly proved.
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Findings of this Court
28. This Court finds that the main substantial question of law is relating to the finding regarding relationship between the plaintiff and the defendant. So far as the facts regarding the case and the pleadings of the parties are concerned, the same has been elaborately mentioned in the above paragraphs. There is no dispute that this issue mainly revolves around Exhibit – I and Exhibit- 3, which were admitted in evidence without any objection made by the defendant.
29. This Court further finds that the issue regarding relationship of landlord and tenant between the parties and the issue regarding two months default in payment of rent so as to call for an eviction on account of default in payment of rent were framed as issue no. 4 and issue no. 5 by the learned trial court and were decided vide paragraph no. 12 of the trial court judgment. Upon perusal of the trial court judgment, this Court finds that both the issue nos. 4 and 5, have been decided together and the learned trial court has inter alia , held as follows:
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the House permit was ever prepared for inception of the tenancy for the suit premises and it was denied that S.N. Singh ever signed over Exhibit 1. It has also tenant pleaded in the W.S. that exhibits 1 and 3 are forged and fabricated documents.
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relationship of landlord and tenant between the plaintiff and the defendant.
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premises was due at the time of filling of the suit to hold the defendant a defaulter in the eye of law.
30. It was the specific case of the plaintiff that the tenancy was created by virtue of one house permit dated 16.03.1983 on monthly rent of Rs. 38.35 paise with effect from 17.03.1983 and that there was a default in payment of rent calling for eviction of the defendant. Exhibit-1 was the house permit and Exhibit- 3 was the computerized statement of accounts. The relationship of landlord and tenant between the plaintiff and the defendant was denied and it was also denied that the Exhibit-1 i.e. the house permit was ever prepared for the inception of tenancy of the suit premises and it was also denied that S. N. Singh ever signed over Exhibit – 1. Exhibit-1 and 3 were denied being forged and fabricated documents.
31. The trial court has also recorded that the admissibility of Exhibit-1 in evidence and its genuineness was objected to on the ground that an un-registered Kirayanama is not admissible in the eyes of law and in support of this submission, the defendant had relied upon a judgment reported in 1966 BLJR 103 and the defendant had also relied upon another judgment reported in 1974 BBCJ 689 to submit that the lease not signed by both the parties even if it is registered, was invalid.
32. The learned trial court has also referred to the judgment referred to by the defendant said to have been reported in AIR 1971 S.C. 1070. It was submitted by the defendant before the learned trial court that in the said judgment it was held that in view of the Section 35 and 36 of the Stamp Act, secondary evidence by way of oral evidence or copy of document insufficiently stamped, is not admissible in a suit even though objection to its admissibility has not been taken under Section 91 of the Evidence Act. The learned trial court further held that the alleged house permit i.e. Exhibit-1 is not the original copy of the same, but it is a carbon copy and it is not stamped at all. There is no case of the plaintiff in its pleadings
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that the original copy of the house permit had been given to S. N. Singh, General Secretary of the defendant union after obtaining his signature on all the copies, but this fact has been adduced by P.W.1 in his evidence. The learned trial court proceeded further and held that looking to the pleadings of the plaintiff, this evidence cannot be accepted and is inadmissible in the eyes of law and after considering the arguments of the parties, the learned trial court ultimately held as follows:
“But in my opinion, the argument does not carry any force. Technically, no doubt that the house permit has been proved, but the above two persons were only capable to say that any such house permit was prepared over which S. N. Singh had signed and a copy of which had been given to him, as such neither Exhibit- 1 nor evidence of P.W.-1 can be accepted in this suit.”
33. The learned trial court also considered the other Exhibit, which is Exhibit- 3, which was the computerized statement of account and by considering Exhibit -3, the learned trial court held that the said document does not show that there was a default for two consecutive months and the learned trial court, while discussing this document in the light of default of two consecutive months, held that this Exhibit- 3 is not to be accepted in evidence to hold that the defendant is tenant of the plaintiff and any rent was paid by it upto August, 1989 and rent from September, 1989 is due. 34. The learned trial court also considered the fact that no counterfoil for any period whatsoever was ever produced by the plaintiff and also considered the fact that S. N. Singh did not appear before the learned trial court to deny his signature and ultimately held that the plaintiff has not been able to prove the relationship of landlord and tenant between the parties, plaintiff is not the owner of the suit premises and there is no question of being the defendant a defaulter in payment of rent and thus, both the issues were decided against the plaintiff.
35. From the arguments which have been advanced by the parties before this Court, it is clear that if the admissibility and proof of
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Exhibit- 1 is upheld, then there cannot be any doubt that there was a relationship of landlord and tenant between the parties and the entire issue mainly revolves around the admissibility and the proof of Exhibit- 1.
36. This Court finds that the learned lower appellate court, although has not framed any point for determination for the first appellate court as such, but the issues which were framed by the learned trial court were considered issue wise and issue nos. 4, 5, and 6 were taken up together by the learned first appellate court has considered the fact that Exhibit- 1 was marked without objection, which was exhibited by P.W.-1, who had supported the case of the plaintiff. The P.W.-1 had proved house permit in relation to the suit property and had stated that vide the house permit, quarter was allotted to the defendant as a tenant. He had also stated that the house-permit was prepared by Md. Yakub Khan and he had identified his writing. He had identified the signature of Mr. Vikram Singh on the house permit, who had signed over it in the capacity of Estate Manager and that the house permit was the carbon copy of the original, which was made by same mechanical process. He had also deposed that the original was handed over to Shri S. N. Singh, General Secretary of the defendant - union at the relevant point of time and had his signature on the house permit and identified his signature and ultimately, Exhibit- 1 was marked without objection. P.W.- 1 had admitted that the house permit was not prepared before him and as such, he was not in a position to give the details about its preparation and had also stated that Vikram Singh and Md. Yakub Khan may answer on this point.
37. The learned first appellate court considered the evidences on record and found that the whole fulcrum of the case appears to rest upon the question of admissibility of Exhibit-1, which was an un-registered and unstamped document and as such, whether it will be read into evidence or not. Further, it was recorded that it
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was also required to be considered that whether procedure for adducing the secondary evidence has been followed or not with regard to Exhibit – 1 being the secondary evidence.
38. The learned first appellate court referred to the order dated 30.11.1992 in Eviction Suit No. 47 of 1990 and recorded that Exhibit- 1 was admitted in evidence without objection on behalf of the defendant and also considered the fact that as per the Section 63(2) of the Indian Evidence Act, secondary evidence means and includes copies of the document which are prepared by the same mechanical process. Regarding the method by which Exhibit- 1 was introduced in evidence, the learned first appellate court has considered the provision of proviso to Section 66 of the Indian Evidence Act, which provides that no notice is required, when from the nature of the case, the adverse party must know that he will be required to produce it and while applying this principle to the facts of the case, the learned lower appellate court held that the plaintiff while filing the suit, had in its plaint taken specific plea that the tenancy was created on the basis of house permit and from the facts and circumstances of this case, the defendant – union can be inferred to have been knowing that they will be required to produce the original copy. Accordingly, the learned lower appellate court held that the Exhibit- 1 was admissible in evidence and on the basis of Exhibit- 1, the learned lower appellate court held that there was a relationship of landlord and tenant between the parties. This court fully agrees with the view taken by the learned lower appellate court considering the facts and circumstances of this case. Otherwise also the consequences of admission of exhibit 1 and 3 without objection from the side of the defendants has serious consequences against the defendant as discussed later in this judgement.
39. The learned lower appellate court has also referred to the judgment passed by this Court reported in 1995 (2) BLJR 1258 and has recorded that it has been held in the said case that
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un-registered memorandum for specified period of tenancydocument can be admissible in evidence for collateral purposes. The learned lower appellate court further held that the relationship of landlord and tenant was established by virtue of Exhibit-1 and so far as the question of default in payment of rent is concerned, it was specific case of the defendant that no rent was ever paid, therefore, the learned lower appellate court was of the view that the defendant- Union had defaulted in payment of rent for a period of two months.
40. This Court finds that while deciding issue nos. 4 and 5, the learned trial court had held that technically the house permit was proved, but the two persons namely, Yakub Khan and Vikram Singh were only capable to say that any such house permit was ever prepared over which Shri S. N. Singh had signed and a copy of which had been given to him. This court finds that the learned trial court nowhere held that the Exhibit- 1 or Exhibit- 3 were forged and fabricated documents, although it was so pleaded by the defendant before the learned trial court. So far as the Exhibit-1 is concerned, the same was rejected on the ground that primary evidence was not adduced and Exhibit- 1 was a secondary evidence.
41. This Court further finds that Exhibit- 3 was discussed by the learned trial court while considering the default of two consecutive months, although in the findings in connection with Exhibit- 3, the learned trial court held that Exhibit- 3 is not fit to be accepted in evidence to hold that the defendant was tenant of the plaintiff and any rent was paid by it upto August, 1989 and rent from September, 1989 was due. Non-appearance of Shri S. N. Singh to adduce evidence before the trial court denying his signature on Exhibit- 1 was also recorded by the learned trial court. The counsel for the appellant has specifically argued that on account of noncompliance of the procedure for adducing secondary evidence in
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relation to exhibit -1 , the case was fatal so far as the plaintiff is concerned.
42. The counsel appearing on behalf of the respondents, on the other hand, has referred to a judgment passed by Hon’ble Supreme Court reported in (2004) 7 SCC 107 (Dayamathi Bai (Smt) Vs. K. M. Shaffi) and by referring to paragraph nos. 13 and 14 of the said judgment, has submitted that the matter regarding admissibility and proof of secondary evidence has been considered by the Hon’ble Supreme Court and in the said case also, the document was exhibited without any objection. The Hon’ble Supreme Court has, in turn, considered the judgment reported in (2003) 8 SCC 752, wherein it was held that ordinarily an objection to admissibility of evidence should be taken when it is tendered and not subsequently. It has been held that the objection as to admissibility of documents in evidence may be classified into two classes:
It has been held that in the first case merely because a document has been marked as ‘an Exhibit’, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the later case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. It has been further held in
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the said judgment that the latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.
It has been held by the Hon’ble Supreme Court by referring to the book namely, Sarkar on Evidence(15th Edn.) that it has been stated that where copies of the documents are admitted without objection in the trial
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court, no objection to their admissibility can be taken afterwards in the court of appeal. When a party gives in evidence a certified copy, without proving the circumstances entitling him to give secondary evidence, objection must be taken at the time of admission and such objection will not be allowed at a later stage.
43. In the instant case also, the Exhibit- 1 has been admitted in evidence without any objection, which is admittedly not the original and is just a carbon copy. Although, in the plaint no such statement was made that Exhibit- 1 was prepared in three copies, but in the evidence of P.W.-1, this aspect of the matter has been deposed, and in spite of that, at the time of admitting this document into evidence, no objection was taken. This is coupled with the fact that it was specific case of the plaintiff that the tenancy itself was created by virtue of this House Permit and this aspect of the matter has been duly considered by the learned lower appellate court, which has resorted to proviso to Section 66 to hold that certain exceptions are carved regarding the procedure to be followed for adducing secondary evidence and the circumstances of this case fall under proviso to Section 66.
So far as the judgment which has been relied upon by the respondent reported in 2000 (2) BBCJ 221 (State of Rajasthan and Ors. Vs. Khemraj and others) is concerned, this Court finds that the same is in connection with the procedure which has to be followed for adducing secondary evidence under Section 66 of the Indian Evidence Act, 1872. In the present case , the secondary evidence has been marked without objection and therefore, it is not open to the defendant to raise objection to its admissibility at a later stage in view of the aforesaid judgment passed by the Hon’ble Supreme court reported in (2003) 8 SCC 752. Considering the facts and circumstances of this case the judgment relied upon by the appellant does not apply.
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This court finds that the consequences of admission of exhibit 1, without objection, which is a carbon copy of the original house permit, has not been properly considered by the learned trial court .Adverse inference has been drawn by the learned trial court on account of non production of the two witnesses in whose presence exhibit-1 was prepared and the original copy of which was said to be handed over to Sri S.N. Singh by obtaining his signature and that exhibit 1 was only a carbon copy . This court finds that if the objection to admissibility of exhibit 1 was taken by the defendant at the stage of admission, the plaintiff could have availed of the opportunity of seeking indulgence of the learned trial court for removing the objection raised by the respondent. Such step would have been fair to both the parties. This view has been taken by the Hon’ble Supreme court in the judgement reported in (2003) 8 SCC 752 which has been fully discussed above. Thus, the defendant having not raised the objection to admissibility of exhibit -1 at the time of marking this document as an exhibit, no adverse inference could have been drawn against the plaintiff for not having produced the primary evidence and for not having taken steps seeking permission to produce secondary evidence i.e exhibit-1.
44. This Court further finds that the learned trial court has drawn adverse inference on account of non-examination of Md. Yakub Khan and Mr. Vikram Singh as Md. Yakub Khan had filled up the house permit and Mr. Vikram Singh had signed it in the capacity of Estate Manager. This Court finds that the learned lower appellate court has considered the evidence of P.W.-1, who had identified the signature of Md. Yakub Khan as well as identified the signature of Vikram Singh on the House Permit and has not drawn any adverse inference on account of their non-examination.
45. This Court finds that in another judgment passed by Hon’ble Supreme Court reported in (1978) 4 SCC 65 (State of Kerala Vs. M.M. Mathew and Another), the Hon’ble Supreme Court while considering the proof of books of accounts, which were in the
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writing of the respondents or their accountant, or clerk or some other person, has held that one or more of the ordinary modes provided in the Evidence Act for proving the handwriting are :
46. This Court finds that Md. Yakub Khan and Mr. Vikram Singh had not appeared before the court below, but the P.W.-1 had identified their signature and admittedly, P.W.-1 was also an employee of the respondent, where Vikram Singh and Md. Yakub Khan were working. This Court finds that the learned trial court although held that technically the House Permit was proved, but has rejected Exhibit-1 i.e. the House Permit by holding that above two persons were only capable to say that the House Permit was
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prepared over which Shri S. N. Singh had signed and a copy of which has been handed over to him.
47. This Court further finds that the signature of Shri S. N. Singh was also identified by P.W.-1 and Shri S. N. Singh himself has not deposed before the learned trial court to deny his signature, although admittedly, at the relevant point of time he was the Secretary General of the Union, who is appellant before this Court. This Court is of the considered view that the house permit i.e. Exhibit- 1 could not have been rejected on account of the nonproduction of its original and this aspect of the matter has been properly considered by the learned lower appellate court. Nonproduction of Mr. Vikram Singh and Md. Yakub Khan was itself not fatal as their signature as well as the signature of S. N. Singh was duly identified by P.W.-1. S. N. Singh had not deposed so as to deny his signature and signature of S. N. Singh was denied by the only witness of the defendant namely, D.W.-1 although he himself had stated that Mr. S. N. Singh was present in the court. 48. In view of the aforesaid facts and circumstances, this court is of the considered view that although no steps were taken for sending the signature of Sri S. N. Singh to hand writing expert for verification, that by itself was not fatal to the case and the judgement relied upon by the appellant which is reported in 2013 SCC OnLine Mani 176 (Ngangbam Ningol Randhoni Devi Vs. R. Sabitri Devi) does not apply to the facts and circumstances of this case.
49. So far as the judgment which has been relied upon by the appellant on the point of non-registration of this Exhibit- 1 is concerned, which is reported in (1966) BLJR 103 (Uma Devi Vs. Bimaldeo Narain and Another), this Court finds that in the said case, the specific case was that Kirayanama was not admissible in evidence in view of Section 107 of the Transfer of Property Act because it was un-registered document and on this basis, it was contended that the said Exhibit- 1 cannot be looked into for the
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purposes of ascertaining the contract between the parties. This court is of the considered view that the Exhibit-1 is the carbon copy of the house permit which cannot be said to be a kirayanama or a lease deed and accordingly, the same was not required to be registered and even otherwise it can certainly be relied upon at least for collateral purposes and for deciding the nature of possession of the defendant and as to whether there was a relationship of landlord and tenant between the plaintiff and the defendant. In the instant case, admittedly the defendant has not given any explanation as to how they came into possession of the suit premises. Further the law is well settled that for the purposes of establishing the relationship of landlord and tenant, it is not necessary that a finding has to be recorded that the landlord was the owner of the premises or was the title holder of the premises. As per the definition of landlord under provisions of Bihar Building (Lease, Rent and Eviction) Control Act, 1982, the landlord has been defined to be the person who is entitled to receive rent. The Exhibit-3 which was duly proved also showed that plaintiff was entitled to receive rent though as per judgment of learned trial court, Exhibit- 3 did not establish default of two months rent.
50. This Court finds that so far as the objection regarding payment of stamp duty on the Exhibit-1 is concerned , it was never the case of the defendant that the original of the Exhibit 1 was unstamped so its carbon copy which was adduced as the secondary evidence was also inadmissible in evidence . The case of the defendant was that the claim of house permit by the plaintiff is incorrect and such document, if any, is a forged and fabricated document. Admittedly , carbon copy of the house permit was admitted in evidence without any objection. The point regarding the house permit being unstamped was taken during arguments before the learned trial court and the learned trial court decided the point against the plaintiff. The counsel for the defendant relied upon the judgement reported in AIR 1971 SC 1070. This court is of the considered view
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that if no such objection was taken at the time of admission of the Exhibit 1 (carbon copy) that the original of the house permit is unstamped, so secondary evidence of the same is also inadmissible , the same cannot be taken at the time of arguments for the first time. Accordingly , judgement reported in AIR 1971 SC 1070 does not apply in the facts and circumstances of this case and this court finds that the objection regarding stamp duty on house permit was not properly considered by the learned trial court under the facts and circumstances of this case.
51. Considering the totality of the circumstances, this Court finds that the Exhibit-1 was rightly relied upon by learned lower appellate court to hold that there was relationship of landlord and tenant between the plaintiff and the defendant and that exhibit-1 was wrongly rejected by the learned trial court.
52. As a cumulative effect of the aforesaid findings, this Court holds that there was sufficient evidence regarding creation of tenancy between the plaintiff and the defendant, and accordingly, the substantial question of law regarding existence of land lord tenant relationship between the plaintiff and the defendant is decided against the defendant/appellant and in favour of the plaintiff/respondent.
53. This Court finds that certainly Exhibit- 3 was considered by the learned trial court to hold that the same by itself could not establish that there was a default in payment of rent for two consecutive months, but the said document certainly referred to payment of rent. Admittedly, in the instant case, it was the specific case of the defendant that no rent was ever paid. In view of the aforesaid findings which have been recorded by this court that Exhibit- 1 was wrongly rejected by the learned trial court and rightly accepted by the learned first appellate court, this Court finds that no illegality has been committed by the learned first appellate court in holding that there was a relationship of landlord and tenant between the plaintiff and the defendant and the case of
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the defendant was that it never paid rent to the plaintiff and in such circumstances held that the defendant was defaulter calling for his eviction as per law.
54. This Court finds that although the learned lower appellate court has not specifically dealt with the findings recorded by the learned trial court, but upon perusal of the judgment passed by the learned lower appellate court, it appears that all the points have been considered so far as the relationship of land lord and tenant and default in payment of rent are concerned, which are the central issue involved in this case and it also deals specifically with the reasons given by the learned trial court. There is no dispute that parties knew that the central issue in the case before the lower appellate authority was as to whether there existed a relationship of landlord and tenant between the parties. Accordingly, this court does not find any illegality in the manner the learned lower appellate court has decided the first appeal. The learned lower appellate court has considered the evidences on record and has come to specific finding of relationship of landlord and tenant between the parties and also given its findings on point of default of rent and its consequences.
So far as the 2nd substantial question of law in connection with other finding in relation to tenancy is concerned, this Court finds that the other finding in connection with tenancy was relating to two months continuous default of rent so as to call for eviction of the defendant. As the first question of law has been answered in favour of the plaintiff (respondent herein), this issue of default is also required to be considered.
55. So far as the default in payment of rent is concerned , this court finds that the learned trial court while dealing with the issue of default of continuous two months has held that the exhibit 3 , which was also marked without any objection , does not prove such default as the document related to only one month . The learned lower appellate court held that the specific case of the
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defendant was that they have never paid rent to the plaintiff and therefore the learned lower appellate court held that the defendant was a defaulter for more than two months so as to call for eviction and decided this issue in favour of the plaintiff. This court finds that the findings recorded by the learned lower appellate court on the point of default is in accordance with law and does not call for any interference. The learned trial court failed to take into consideration the specific case of the defendant that that the rent was never paid. Accordingly, the 2nd substantial question of law is also decided in favour of the plaintiff (respondent herein).
56. Thus, both the questions of law are decided in favour of the respondent and against the appellant. The present second appeal is hereby dismissed.
57. After the dictation of the judgment, counsel for the appellant, upon instruction from his client, submits that the appellant shall evict the premises within a period of three months from the date of receipt of a copy of this order and some protection may be given. 58. The counsel for the respondent has no objection to the period of 3 months for eviction as prayed for by the appellant. The counsel for the respondent also undertakes that they will not pursue the execution proceedings for a period of three months from the date of receipt of a copy of this judgement.
(Anubha Rawat Choudhary, J.)
Pankaj
3 issues framed by the court
Could the carbon-copy house permit admitted without objection establish the landlord–tenant relationship?
Did the defendant's admitted non-payment of rent establish default warranting eviction once tenancy was proved?
Was the first appellate judgment defective for not separately framing points for determination despite addressing the central issues?
Colour shows how this judgement treated each authority
State of Rajasthan and Ors. Vs. Khemraj and othersDistinguished¶119
2000 (2) BBCJ 221 (State of Rajasthan and Ors. Vs. Khemraj and others)
Uma Devi Vs. Bimaldeo Narain and AnotherDistinguished¶137
(1966) BLJR 103 (Uma Devi Vs. Bimaldeo Narain and Another)
Ngangbam Ningol Randhoni Devi Vs. R. Sabitri DeviDistinguished¶136
2013 SCC OnLine Mani 176 (Ngangbam Ningol Randhoni Devi Vs. R. Sabitri Devi) · Who else cites this
Dayamathi Bai (Smt) Vs. K. M. ShaffiRelied on¶109
(2004) 7 SCC 107 (Dayamathi Bai (Smt) Vs. K. M. Shaffi) · Who else cites this
Krupanidhi Educational Institution Vs. Super Sale CorporationReferred¶65
(2002) 10 SCC 496 (Krupanidhi Educational Institution Vs. Super Sale Corporation) · Who else cites this
State of Kerala Vs. M.M. Mathew and AnotherApplied¶123
(1978) 4 SCC 65 (State of Kerala Vs. M.M. Mathew and Another) · Who else cites this
(2003) 8 SCC 752Applied¶121
AIR 1971 SC 1070Distinguished¶142
4 provisions across 3 enactments
TISCO Mazdoor Union, Adityapur Complex
The Tata Iron & Steel Company Limited
Anubha Rawat Choudhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
