Sri S Srinivasa Vs Sri Jayavelu

THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE ORDER DATED 10.08.2023 PASSED IN OS NO.2834/2022 ON THE FILE OF LII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE DISMISSING THE SUIT FOR EJECTMENT.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The unsuccessful plaintiff has filed the captioned appeal assailing the judgment and decree rendered by the trial Court in O.S.No.2834/2022 wherein plaintiff's suit is dismissed on the ground that plaintiff has failed to substantiate that plaintiff’s vendor had attorned the

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tenancy of defendant in his favour at the time of conveying the suit schedule property to plaintiff under the registered sale deed dated 26.05.2008.

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For the sake of convenience the parties are referred to as per their rank before the trial Court.

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The facts leading to the case are as under:

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The plaintiff instituted the suit for ejectment asserting absolute ownership over the suit schedule premises under a registered sale deed dated 26.05.2008 executed by his vendor. It is specifically

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pleaded that consequent upon the conveyance, the vendor attorned the tenancy of the defendant in favour of the plaintiff and that the defendant acknowledged the said attornment by continuing to pay monthly rent of Rs.16,000/- to the plaintiff. It is further pleaded that the defendant subsequently became a chronic defaulter, which constrained the plaintiff to issue a legal notice dated 27.10.2021 terminating the tenancy and calling upon the defendant to clear the arrears. The said notice was returned with an endorsement “refused”. Thereafter, a second notice was issued to the place of business of the defendant, which was duly served. Despite service, the defendant neither replied nor complied with the demand. Consequently, the

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plaintiff filed the present suit alleging arrears of rent amounting to Rs.3,84,000/- as on the date of the suit.

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The defendant, despite service of summons through paper publication, remained absent and was placed ex parte. In support of his claim, the plaintiff examined himself and produced documentary evidence, including the certified copy of the registered sale deed marked as Ex.P-1 and copies of the legal notices. The Trial Court, however, dismissed the suit on the premise that the plaintiff had failed to establish attornment of the defendant’s tenancy in his favour and further held that the plaintiff had not substantiated the claim for arrears of rent.

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Learned counsel for the plaintiff, reiterating

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the grounds urged in the appeal, would vehemently contend that the finding recorded by the Trial Court on Issue No.1 is manifestly perverse. He would submit that the defendant neither replied to the legal notices

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nor chose to contest the suit, despite due service, and

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therefore the plaintiff’s assertion regarding the existence of a jural relationship stood unrebutted. It is further contended that the Trial Court failed to draw

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the necessary legal inference from the admitted circumstances. During the pendency of the appeal, an application under Order XLI Rule 27 of CPC has been filed, seeking to produce additional documentary evidence, namely a cheque bearing No.609095 dated 06.09.2019 issued by the defendant in favour of the plaintiff along with the corresponding bank statement reflecting its encashment. Placing reliance on the said additional evidence, learned counsel would submit that even long after the execution of the sale deed dated 26.05.2008, the defendant continued to pay rent to the plaintiff, thereby conclusively establishing attornment and the subsistence of the landlord–tenant relationship.

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Learned counsel Sri. Vijaya Kumar appearing for the defendant, though initially disputing the jural

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relationship on the ground of absence of proof of attornment, fairly submits, upon service of the additional documents, that he is unable to seriously dispute the issuance of the cheque by the defendant or its encashment in favour of the plaintiff.

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Having heard the learned counsel for the parties and on careful examination of the material on record, the following points arise for consideration:

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"(i) Whether the finding of the Trial Court that the plaintiff failed to establish the jural relationship for want of proof of attornment suffers from perversity, particularly in the absence of any serious contest by the defendant?

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(ii) Whether the additional evidence, consisting of cheques issued by the defendant and the corresponding bank statement evidencing payment of Rs.1,12,000/- to the plaintiff, constitutes credible

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documentary evidence to establish the subsistence

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of a jural relationship?

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(iii) Whether the said additional evidence can be received on record without relegating the parties to lead further evidence?

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(iv) What order?"

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Finding on Points (iii):

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The additional documents produced by the plaintiff under Order XLI Rule 27 of CPC, namely the cheques admittedly issued by the defendant towards payment of arrears of rent and the corresponding bank statements evidencing their encashment, can be received on record and relied upon by this Court without relegating the parties to lead further evidence.

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The scope and object of Order XLI Rule 27 CPC have been authoritatively explained by the Hon’ble Supreme Court in Union of India v. Ibrahim Uddin¹ wherein it

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1 (2012) 8 SCC 148

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is held that additional evidence may be permitted if the

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appellate Court requires such evidence to enable it to pronounce judgment or to prevent failure of justice. The Hon’ble Apex Court has further clarified that remand is not mandatory in every case of additional evidence and that the appellate court may itself consider such evidence if no prejudice is caused to the opposite party.

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In the present case, the issuance of the

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cheques is not disputed by the learned counsel

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appearing for the defendant, nor is the encashment of the said cheques reflected in the bank statements questioned. The documents are, therefore, unimpeachable in nature and constitute documentary evidence which speaks for itself, requiring no further oral evidence for proof. This court is of the view that

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where documentary evidence is admitted and is selfexplanatory, insistence on further oral evidence would

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be a mere empty formality. Where the authenticity of documents is not in dispute, the appellate court can act upon such documents without remitting the matter.

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This Court is of the view that when additional documents are admitted and their

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genuineness is not disputed, the appellate court need not relegate the parties to lead further evidence and therefore remand is unnecessary where additional evidence does not require rebuttal and where the documents conclusively establish the fact in issue.

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Applying the aforesaid principles to the facts on hand, this Court is of the considered view that relegating the parties to lead further evidence would serve no useful purpose and would only result in avoidable delay. Since the cheques are admittedly issued by the defendant and the bank statements unequivocally demonstrate that the amounts covered under the cheques were credited to the plaintiff’s

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account, this Court can safely act upon the additional evidence and adjudicate the appeal on merits without remand. Accordingly, point no. (iii) is answered in the

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‘ affirmative’.

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Finding on Points (i) &(ii):

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It is not in dispute that the plaintiff acquired the suit schedule property from the erstwhile owner under a registered sale deed dated 26.05.2008. The plaintiff has consistently pleaded that the defendant, who was a tenant under the previous owner, continued in occupation even after the conveyance and subsequently turned into a chronic defaulter in payment of rent. Admittedly, the defendant did not contest the suit and was placed exparte . In that backdrop, the plaintiff appears to have proceeded on the assumption that the pleadings and the uncontroverted oral evidence would suffice to establish the jural relationship, and therefore did not initially

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produce the cheques issued by the defendant evidencing payment of rent. It is only after the suit came to be dismissed that the plaintiff has been constrained to seek production of additional documents by invoking the provisions of Order XLI Rule 27 of CPC.

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Though, as a matter of principle, additional evidence is required to be received cautiously and ordinarily the parties are relegated to lead further evidence, the present case stands on a peculiar footing. The suit is one for ejectment and the defendant, even before this Court, does not seriously dispute the issuance of the cheques produced as additional evidence nor the fact that the said cheques were honoured. Significantly, the defendant cannot dispute the issuance of the cheques without taking a stand on oath, which, if found to be false, would entail consequences in law, including prosecution for perjury under Section 193 of IPC. In these circumstances, this Court is of the considered view that no useful purpose

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would be served by remitting the matter or relegating

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the parties to lead further evidence solely for the formal marking of the cheques and the corresponding bank statements.

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Having regard to the peculiar facts and circumstances of the case and in order to render substantial justice, this Court is inclined to receive the additional documents on record and examine them on merits, particularly when the defendant does not dispute either the issuance of the cheques or their encashment.

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On close scrutiny of the additional evidence, more particularly cheque bearing No. 609095 dated 06.07.2019, cheque bearing No. 609084, and the corresponding bank statements, it is clearly evident that the defendant, acknowledging the plaintiff as the landlord, has paid a consolidated sum of Rs.1,12,000/to the plaintiff. The bank statement unmistakably

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reflects that the amount covered under cheque No.609095 was credited to the plaintiff’s account on 10.07.2019. Similarly, one more cheque issued by the defendant stands credited to the plaintiff’s account on 29.11.2018. The remaining cheques produced along with the bank statements also indicate consistent payment of rent by the defendant to the plaintiff subsequent to the execution of the sale deed dated 26.05.2008.

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The aforesaid documentary evidence conclusively establishes that the defendant continued to pay rent to the plaintiff and thereby unequivocally acknowledged the plaintiff as his landlord. Consequently, the existence of a jural relationship between the parties stands proved and the factum of attornment of the defendant’s tenancy in favour of the plaintiff is clearly substantiated.

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For the foregoing reasons, this Court is of

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the considered view that the findings recorded by the Trial Court while answering Issue Nos.1 and 2 suffer from patent perversity and non-application of settled principles governing proof of jural relationship, particularly in cases where the defendant has chosen not to contest the proceedings. In the absence of any rebuttal evidence and in view of the uncontroverted material placed on record, the conclusion of the Trial Court that the plaintiff failed to establish attornment and arrears of rent cannot be sustained.

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Since the defendant has neither disputed the rate of rent nor produced any material to controvert the plaintiff’s claim of arrears to the tune of Rs.3,84,000/-, this Court has no hesitation in holding that the plaintiff has successfully proved both the jural relationship as well as the arrears of rent. The decree passed by the Trial Court, therefore, suffers from

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serious legal infirmities and warrants interference by

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this Court in exercise of its appellate jurisdiction.

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Accordingly, Points (i) to (ii) formulated by this

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Court are answered in the ‘ affirmative’ .

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Finding on point No.(iv):

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For the foregoing reasons, this Court

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proceeds to pass the following:

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ORDER

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(i) The appeal is allowed.

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(ii) The judgment and decree dated 10.08.2023 passed in O.S.No.2834/2022 on the file of the LII

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Additional City Civil and Sessions Judge, Bengaluru,

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are hereby set aside and, consequently, the suit filed by the plaintiff is decreed.

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(iii) The defendant is directed to handover vacant and peaceful possession of the suit schedule property to the plaintiff on or before 31.07.2026

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and shall file an affidavit of undertaking before the Trial Court to the aforesaid effect within a period of two weeks from the date of receipt of a certified copy of this judgment.

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(iv) The defendant shall clear the arrears of rent due till date within a period of eight weeks from the date of receipt of the certified copy of this judgment.

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(v) The defendant shall further continue to pay damages for use and occupation at the rate of Rs.20,000/- (Rupees Twenty Thousand only) per month from the date of this judgment till the date of handing over vacant possession of the suit schedule property.

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(vi) Draw decree accordingly.

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Sd/(SACHIN SHANKAR MAGADUM) JUDGE

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ALB, List No.: 1 Sl No.: 20

Sri S Srinivasa v. Sri Jayavelu

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Sri S Srinivasa v. Sri Jayavelu

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