Partly allowed

Sanjaykumar Chordia v. Mahaveer & Company HUF

Madras HC2 Mar 2011SA/1016/2007

Case brief

AI extract

What is this about?

In a second appeal regarding recovery of possession, the Madras High Court upheld the First Appellate Court's finding that the suit property was exempt from the Tamil Nadu Buildings Act as a new building. The Court rejected evidence of a two-floor lease, confirmed the validity of the termination notice, but set aside the 25% enhancement in damages, ordering instead damages at the original rent rat

What did the court decide?

Second appeal partly allowed; 25% enhancement of damages set aside; defendants liable to pay damages at old rent rate; possession to be delivered within four months.

Sanjaykumar Chordia Vs Mahaveer & Company HUF — Specific Performance | Madras HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 2.3.2011

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Coram:

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THE HONOURABLE MR.JUSTICE G.RAJASURIA

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S.A.No.1016 of 2007

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1.Sanjaykumar Chordia
2.Ajaykumar Chordia ... Appellants/Defendants
vs.
1.Mahaveer & Company HUF
by its Kartha
Mahaveerchand Bagmar
2.Mrs.Manjula Devi .... Respondents/Plaintiffs

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This second appeal is filed U/Sec 100 of CPC against the judgement and decree dated 11.7.2007 passed by the III Additional Judge, City Civil Court, Chennai in A.S.No.573 of 2005 reversing the judgement and decree dated 13.9.2005 passed by the XIV Asst.City Civil Court, Chennai, in O.S.No.574 of 1999.

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For Appellants : Mr.R.Subramanian For Respondents : Mr.R.Thiagarajan JUDGMENT

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This second appeal is focussed by the defendants, inveighing the judgement and decree dated 11.7.2007 passed by the III Additional Judge, City Civil Court, Chennai, in A.S.No.573 of 2005 reversing the judgement and decree dated 13.9.2005 passed by the XIV Asst.City Civil Court, Chennai, in O.S.No.574 of 1999, which was filed for recovery of possession of the suit property and for damages etc.

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The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.

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Narratively but precisely, broadly but briefly the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus:

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(a) The respondents herein as plaintiffs filed the suit seeking the following reliefs:

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"to pass judgement and decree against the defendants-

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a) directing the defendants to deliver vacant possession of the premises in the second floor at No.36, Thirupalli Street, Sowcarpet, Chennai-79, morefully described in the plaint schedule;

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b) directing the defendants to pay the plaintiffs a sum of Rs.1000/- per day by way of damages for illegal and unlawful occupation of the suit premises from January, 1999 till the date of handing over vacant possession;

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c) directing the defendants to pay the plaintiff the arrears of rent totalling to Rs.18,000/- (from 1.10.1998 to 31.12.1998) and arrears of electricity charges of Rs.3,829/- in all Rs.21,829/-;

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d) directing the defendants to pay the plaintiffs the costs of the suit." (extracted as such)

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(b) Written statement was filed by the defendants, resisting the suit. Whereupon, the trial Court framed the issues.

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(c) On the side of the plaintiffs, the first plaintiff examined himself as P.W.1 and marked Exs.A1 to A25. On the defendants' side, the 1^st defendant examined himself as D.W.1 and marked Exs.B1 to B19. The handwriting expert was examined as C.W.1 and Exs.C1 to C7 were marked as Court documents.

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(d) Ultimately, the trial Court dismissed the suit, as against which, the appeal was filed. Whereupon the first appellate Court reversed the findings of the trial Court and decreed the suit.

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Challenging and impugning the judgement and decree of the first appellate Court, the second appeal has been filed by the defendants on various grounds inter alia thus:

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(i) The first appellate Court failed to adhere to Order 41 Rule 31 of C.P.C. in rendering its findings quite antithetical to the reasoned findings given by the trial Court.

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(ii) While the first appellate Court responding to the prayer of the plaintiffs to send Ex.B9 for expert opinion, so as to verify the disputed signature of the first plaintiff, it failed to send along with it the admitted ante litem motam signatures of the first plaintiff available on record. The sample signatures of the first plaintiff taken before the Court and the signatures found in Vdakalat and affidavit should not have been relied on by the expert for giving his opinion as though the disputed signature is a forged one.

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(iii) Exs.B3, B6, B11 and B12 clinched the issue and they proved unambiguously and unequivocally that the defendants took on lease two portions, so as to say, the ground and the second floor belonging to the plaintiffs for a total rent of Rs.6,000/-, so to say, at the rate of Rs.3000/- p.m. for each floor and for that alone Rs.50,000/- each totalling one lakh was paid as advance. But all these facts have not been considered by the first appellate Court.

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(iv) The self-contradictory statements made by the plaintiffs were not considered by the first appellate Court.

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(v) The Tamil Nadu Buildings (Lease and Rent Control) Act even though was very much applicable to the demised premises, the first appellate Court erroneously held as though the building concerned is a new building and it is exempt from the purview of the said Act.

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Accordingly, the following substantial questions of law are found suggested in the second appeal.

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"a) Whether the judgement of the lower appellate Court is vitiated due to the fact that the lower appellate Court has not given its reasons for not agreeing with the findings/conclusions of the trial Court?

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b) Whether the lower appellate Court was right in holding that the appellants herein cannot challenge the finding on the maintainability of the suit without filing a cross-objection.

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c) Whether the lower appellate Court was right in accepting the report of the handwriting expert more so when the comparison was not made with signatures in contemporaneous documents but with subsequent documents.

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d) Whether the lower appellate Court was right in granting a decree for eviction without deciding on the validity of the notice of termination?"(extracted as such)

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After hearing both sides and considering the materials available on record, I am of the view that the following substantial questions of law could be framed for consideration:

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(i) Whether the first appellate Court erroneously held as though the premises concerned is exempt from the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act, by misinterpreting and misreading the evidence on record?

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(ii) Whether the first appellate Court failed to take into consideration the documentary and oral evidence adduced on the side of the defendants and more specifically Exs.B3, B6, B11 and B13?

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(iii) Whether the first appellate Court committed error in relying

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upon the alleged unreliable opinion of the handwriting expert which emerged out of comparing sample signatures, which were not ante litem motam in nature, with the disputed signature?

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(iv) Whether the first appellate Court, without adhering to Order 41 Rule 31 of C.P.C. reversed the findings of the trial Court.

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(v) Whether the first appellate Court was not justified in awarding damages for use and occupation by enhancing the old rate of rent by 25%, in the absence of any clinching evidence?

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(vi) Whether there is any perversity or illegality in the judgement of the appellate Court.

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Both sides took notice of the above substantial questions of law and advanced arguments.

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Piloting the arguments on the side of the appellants/defendants, the learned counsel would put forth and set forth his submissions, which could succinctly and precisely be set out thus:

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(i) The first appellate Court is expected to take into consideration the reasons given by the trial Court in its judgement and while reversing the findings of the trial Court, reasons should be been given by the first appellate Court as to how such findings of the lower Court are wrong. However, in this case, the first appellate Court did not do so.

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(ii) The first appellate Court was not justified in obtaining sample signatures before the Court when already ante litem motam admitted signatures of the first plaintiff were available on record.

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(iii) The handwriting expert's opinion was not a proper one to be relied on.

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(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 the plaintiffs.

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(v) The contradictory statements given by the first plaintiff in his deposition also was over looked by the first appellate Court. Anticipating that the ground floor also would be handed over to the defendants by the plaintiffs as promised earlier, the former were paying rent 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.

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(vi) The originals of Ex.A15 to A21-the receipts signed by the first plaintiff were sent in a bunch in the cover-Ex.B2 and they were returned by the defendants in person to the plaintiffs on the ground that those

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receipts did not reflect the realities, as maliciously it was found incorporated therein as though those rents were paid for only the second floor.

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(vii) Ex.A24-the Temporary Assessment of House tax notice and Ex.A14 would not in any way evidence that the building itself was a new building, exempt from the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act.

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(viii) The incongruities as found embodied in the very plea of the plaintiffs as though the second floor alone was rented out for a sum of Rs.6000/- in favour of the defendants, were not considered by the first appellate Court.

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Accordingly, the learned counsel for the appellants/defendants prayed for allowing the second appeal and for restoring the judgement and decree of the trial Court.

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Denying and impugning, gain saying and challenging and in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the defendants, the learned counsel for the plaintiffs would advance his arguments which could pithily and precisely be set out thus:

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(a) The Rent Controller, in the earlier proceedings initiated by D1, held that the building was exempt from the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act, as it happened to be a new building and the connected R.C.A. also was dismissed, confirming the order 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 come within the purview of the Act and as such, it is not open for the D1 to rack up the same issue before the Civil Court.

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(b) Trial Court as well as the first appellate Court gave their findings that the demised premises was exempt from the purview of the Act, as it happened to be a new building, relating to which, no cross appeal or cross-objection was filed by the defendants before the first appellate Court.

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(c) Exs.B3, B6 and B11-the letters were not received by the plaintiffs and those are all self-serving documents having no probative force, fabricated by the defendants themselves.

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(d) The first appellate Court appropriately and appositely, correctly and legally obtained the sample signatures of the irst plaintiff as per Section 73 of the Indian Evidence Act and sent those sample signatures along with the sample signatures available in the vaklat 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

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in sending those documents and in obtaining the expert opinion.

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(e) The hand writing expert was examined as C.W.1 and he, on oath clearly and categorically deposed in support of the opinion given by him to the effect that the disputed signature found in Ex.B9 was not that of the first plaintiff and he also gave reasons to fortify his opinion. The first appellate Court also applied its mind and accepted such findings, warranting no interference in second appeal.

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(f) Exs.A2, A6, A11 to A21 would all exemplify and demonstrate, prove and establish that the defendants took on lease the second floor only for a monthly rent of Rs.6000/-, after paying a total advance of Rs.1,00,000/- in the form of two cheques.

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(g) Inasmuch as the defendants did not pay the electricity charges and water charges, the plaintiffs were constrained to pay such charges and claimed reimbursement, which was correctly and justly ordered in favour of the plaintiffs by the first appellate Court.

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(h) Regarding Ex.B11 is concerned, there is no reference to it in the written statement at all. The contention of the defendants that the originals of Ex.A15 to A21 in a bunch were sent in a cover to the first defendant, is also not found set out in the written statement. Any amount of evidence without the back up of the pleadings should be eschewed.

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(i) The first appellate Court thread bare discussed the pros and cons 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.

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(j) The termination notice was properly given by the plaintiffs. As per the amended Section 106 of the Transfer of Property Act, the suit itself was filed 15 days after the receipt of such notice by both the defendants in respect of the said residential suit premises.

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Accordingly, the learned counsel for the plaintiffs would pray for the dismissal of the second appeal.

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Substantial Question of Law (i):

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Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act exempts new buildings from the purview of its operation for a period of five years.

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Indubitably and indisputably, D1 filed RCOP for the purpose of getting restored the electricity connection and at that time, the Rent Controller himself gave a finding, after hearing the first plaintiff herein that the said building is exempt from the purview of the said Act,

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because it happened to be a new building, over which, R.C.A.was filed for nothing but to be dismissed by the appellate Court confirming the findings given by the Rent Controller.

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In my considered opinion, once the Rent Controller and the appellate authority give a finding that a particular building is exempt from the purview of the Act, because it happened to be a new building, then it cannot be challenged in the civil Court.

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If an authority under the special enactments holds that a particular case does not fall within its purview, then it would not open for the civil Court to hold to the contrary that the statutory authority is having jurisdiction over that matter. As such, if viewed, it is clear that the contention of the defendants herein that only the Rent Controller has got jurisdiction in this case relating to eviction, is a mis-conceived one.

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Be that as it may, even on merits, both the civil Courts below, by placing reliance on Ex.A24-the temporary assessment notice and Ex.A14-the demolition notice, held justifiably and correctly that the then existed old building was demolished and the new building was erected in that place and as such, in second appeal, this Court can not give any contrary finding quite antithetical to the concurrent findings given by both the Courts below on that point in the absence of any perversity or illegality in their finding.

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The learned counsel for the appellants/defendants also would submit plausibly and acceptably that temporary assessments are made only relating to new buildings.

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Incontrovertibly and ungainsayably no cross-appeal or crossobjection was filed by the defendants before the first appellate Court when the plaintiffs' appeal was pending before it and in such a case as per 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,

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"24. It is a settled principle of law that before the first appellate court, the party may be able to support the decree but cannot challenge the findings without filing the cross-objections. ..........................."

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the defendants now in this second appeal cannot agitate over the finding of both the Courts below that the suit property herein was exempt from the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act.

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Wherefore, in the result, I am of the considered view that the contention on the side of the appellants/defendants that the building concerned was not a new building and that it attracted only the Tamil

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Nadu Buildings (Lease and Rent Control) Act, is not at all legally tenable. Accordingly, the substantial question of law (i) is decided as against the defendants and in favour of the plaintiffs.

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Substantial Questions of Law (ii) to (iv):

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A recapitulation and 'resume' of relevant facts absolutely necessary for disposal of this second appeal would run thus:

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(a) The plaintiffs on the one side and the defendants and their father on the other side were once friends, it appears, admittedly. On the one side the plaintiffs would contend that they agreed to lease out only the second floor for a monthly rent of Rs.6000/- after receiving an advance of Rs.1,00,000/-(one lakh) repayable without interest, at the time of vacating the premises by the defendants.

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(b) However, the contention on the side of the defendants was that the ground floor as well as the second floor was agreed to be leased out by the plaintiffs in favour of the first defendant for a monthly rent of Rs.3000/- each and that too, after receiving a sum of Rs.50,000/- as advance, for each of the portions.

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The contention on the side of the defendants was that in the ground floor certain carpentry and painting work were to be undertaken by the plaintiffs and that alone resulted on the part of the plaintiffs in delaying the handing over of the ground floor in favour of the defendants; however, subsequently, the plaintiffs turned turtle and had a volte face and dished out a plea as though they agreed to lease out only the second floor and not the ground floor.

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In support of the contention of the appellants/defendants, they would rely mainly on Ex.B3, Ex.B6 and Ex.B11. It is therefore just and necessary to analyse those documents.

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Ex.B3 is the letter dated 3.3.1998 written by the first defendant to the plaintiffs incorporating the terms and conditions of the lease relating to the said two floors. The plaintiffs would gainsay the receipt of such letter and according to the plaintiffs, it is a selfserving letter.

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I recollect the following maxims:

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(i) Affirmatis est probare – He who affirms must prove.

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(ii) Affirmanti, non neganti incumbit probatio – The burden of proof lies upon him who affirms, not upon one who denies.

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The above sister maxims would evince that the burden is on the person who affirms it. Here, the defendants affirms that it was D1, who sent Ex.B3 to the plaintiffs; but the former could not prove it. On the defendants side, they seek to explain by pointing out that it was handed over in

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person. But the plaintiffs would gainsay the same. No acknowledgement endorsement also was found obtained in Ex.B3. The normal conduct of any one is that if a letter or a document is prepared with a carbon copy then after parting with the original, in the carbon copy concerned the acknowledgement endorsement should be obtained or a separate receipt or acknowledgement should be obtained. But in this case, that was not done so by the defendants.

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Ex.B6 is the letter dated 12.5.1998 purported to have been written by the first defendant to the plaintiffs and he claims to have despatched it as per a postal receipt. However, the plaintiffs would deny the receipt of such letter. On the other hand, the plaintiffs would contend that the demand draft-Ex.A16 alone was found in the said cover sent as per the postal receipt.

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In this connection, the learned counsel for the defendants would draw the attention of this Court to the cross-examination of P.W.1, the following are the concerned excerpts:

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@/ // / // / 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;W fojk; 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/ / / / / /

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As such, placing reliance on the said answer given by the first plaintiff as P.W.1 during cross-examination, the learned counsel for the defendants would develop his argument that this is a clear admission on the part of the first plaintiff relating to the receipt of the original of the letter dated 12.5.1998, i.e. the original of Ex.B6.

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However, the learned counsel for the plaintiffs would draw the attention of this Court to the cross-examination of P.W.1 on 21.7.2005 and an excerpt from it would run thus:

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placing reliance on the same, the learned counsel for the plaintiffs would submit that the first plaintiff clarified, during cross-examination on 21.7.2005 that only Ex.A16-the demand draft was received by him as per the said postal receipt.

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In this connection, I recollect the trite proposition of law

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that preponderance of probabilities would govern the adjudication in civil cases and it is also well settled that the answer given by a witness during cross-examination should not be taken in isolation and on that basis he should not be mulcted with liability.

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It is the consistent case of the plaintiffs that they leased out only the second floor for a monthly rent of Rs.6000/- per month, after receiving two cheques each for Rs.50,000/- bearing Nos.436793 and 681995 and by way of acknowledgement, the first plaintiff issued receipt as per Ex.A25 dated 3.3.1998 and the said exhibit was marked during the crossexamination of D.W.1(D1).

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Inasmuch as the plaintiffs tried to fasten the defendants with liability and also knowledge about the factum of the defendants having taken on lease the second floor for a sum of Rs.6000/- per month, after payment of Rs.one lakh as advance, the defendants, as a defensive measure placed reliance on Ex.B6-the letter dated 12.5.1998 as though they allegedly informed the plaintiffs that the lease was concerning two floors for a total rent of Rs.6000/- p.m.

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The learned counsel for the defendants would submit that the two cheques bearing Nos.436793 and 681995 referred to in Ex.A25 could not have been given on 1.3.1998 because that day happened to be a Sunday and according to P.W.1 himself Sunday was holiday for his office.

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A pertinent question arises as to whether such answer could be taken for disbelieving the plea of the plaintiffs. Nowhere it is stated that on Sunday, the first plaintiff would not be available in office. It is common knowledge that on Sundays office might not function, but the person relating to that office might be available in the office. As such, on the mere fact that 1.3.1998 happened to be a Sunday, the version of the plaintiffs cannot be disbelieved in toto.

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There is no explanation at all as to why those two cheques should be written on 1.3.1998 and that they should be handed over, as per D.W.1, on 3.3.1998.

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Ex.B9 is the most crucial document, which the defendants relied on so as to fasten the first plaintiff with his alleged commitment to lease out both the floors for a total monthly rent of Rs.6000/-. In the written statement also there is no whisper that the two cheques of Rs.50,000/- each were issued concerning each of the floors. It is found stated in the plaint generally that a sum of Rs.1,00,000 was paid as advance for taking on lease the premises. The plaintiffs would deny in toto his purported signature in Ex.B9. However, on the other hand the plaintiffs relied on Ex.A2-the purported letter dated 1.3.1998 written by D1 agreeing for the terms and conditions of the lease, as projected by the plaintiffs before this Court. D1 would deny his signature therein. It so happened that even when the matter was pending before the trial

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Court, steps were taken by D1 to get his disputed signature in Ex.A2 being verified by a handwriting expert, but the trial Court rejected it and as against which, the C.R.P.was filed for nothing but to be dismissed. It is also a fact that before the trial Court, the disputed signature of the first plaintiff in Ex.B9 was not attempted to be got verified by a handwriting expert. Only before the first appellate Court such a measure was taken, perhaps, it might be the main reason for the trial Court to misdirect itself, in placing reliance on Ex.B9, which was subsequently found to be a forged document and the first appellate Court, as detailed and delineated supra, obtained the sample signatures of the first plaintiff invoking Section 73 of the Indian Evidence Act and also sent such sample signatures along with the other signatures of the first plaintiff found in the vaklat and other documents.

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At this juncture, I would like to point out that the general principle is that normally contemporaneous signature or ante litam motem signature should be taken as sample signature and if such signatures are not available, then the Court can direct the party concerned to sign before it the sample signatures and send them for verification with the disputed signature. Admittedly and indisputably, in this case, the ante litam motem signatures in the form of admitted receipts were available before the trial Court, and it seems, both sides did not help the appellate Court in sending those ante litam motem signatures to the handwriting expert.

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Now the core question arises as to whether on that ground the report of the handwriting expert-Ex.C1 should be discarded or rejected.

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In this connection, the learned counsel for the plaintiffs would cite the decision of the Honourable Apex Court reported in (1979) 2 SUPREME COURT CASES 158 – THE STATE (DELHI ADMINISTRATION) VS. PALI RAM, certain excerpts from it would run thus:

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"25. A sample writing taken by the court under the second paragraph of Section 73, is, in substance and reality, the same thing as “admitted writing” within the purview of the first paragraph of Section 73, also. The first paragraph of the section, as already seen, provides for comparison of signature, writing, etc. purporting to have been written by a person with others admitted or proved to the satisfaction of the court to have been written by the same person. But it does not specifically say by whom such comparison may be made. Construed in the light of the English Law on the subject, which is the legislative source of this provision, it is clear that such comparison may be made by a handwriting expert (Section 45) or by one familiar with the handwriting of the person concerned (Section 47) or by the court. The two paragraphs of the Section are not mutually exclusive. They are complementary to each other.

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Section 73 is therefore to be read as a whole, in the light of Section 45. Thus read, it is clear that a court holding an inquiry under the Code of Criminal Procedure in respect of an offence triable by itself or by the Court of Session, does not exceed its powers under Section 73 if, in the interests of justice, it directs an accused person appearing before it, to give his sample writing to enabling the same to be compared by a handwriting expert chosen or approved by the court, irrespective of whether his name was suggested by the prosecution or the defence, because even in adopting this course, the purpose is to enable the court before which he is ultimately put up for trial, to compare the disputed writing with his (accused’s) admitted writing, and to reach its own conclusion with the assistance of the expert.

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The matter can be viewed from another angle, also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert."

¶122

He would also cite one other decision of this Court reported in AIR 2009(NOC) 2362 (MAD) – JAYARAMAN AND OTHERS V. LIMICHAND.

¶123

I am of the considered view that simply because in this case, due to over sight, the first appellate Court as well as both sides failed to get the admitted ante litam motem signatures available on record itself being sent to the handwriting expert for comparison, the entire case cannot be rejected for the reasons infra.

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I would like to extract hereunder the report of the handwriting expert-C.W.1 as found in Ex.C7.

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"The documents received along with your letter cited on 21.6.2006 through Tr.P.Muniswamy, Office Assistant, with seals intact, were carefully examined by the undersigned experts in this department and the result of the examination is furnished below:

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The person who wrote the red enclosed signatures stamped

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and marked S1 to S31 did not write the red enclosed signature similarly stamped and marked 'Q'.

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The reasoning sheet is enclosed.

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The documents are returned herewith.

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Sd/Sd/Assistant Director and Scientific Officer and Document Expert Document Expert

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Reasoning Sheet

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S1 to S31 did not write the signature marked 'Q'

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The standard signatures have been freely written and agree in the handwriting characteristics on an interse comparison. The questioned signature has been imitated and differs from the standard in the handwriting characteristics. The characteristic differences include among other things the following.

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The skill of writing.

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The alignment between the letters in the signatures

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3.The manner of terminating the letter 'B', 'a', 'g'.

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The relative sizing between the letters 'a' & 'g'; 'R' and 'B'

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In the detailed designs such as the beginning and formation of loops and curves of the letters 'R', 'M', 'B', 'a', 'g', 'm', 'r'. (emphasis supplied)

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The handwriting expert's report-Ex.C7 would clearly and categorically display and evince that the expert got himself verified about the reliability of the sample signatures. In my opinion, the expert appropriately and appositely addressed himself to that measure. It is the duty of an expert to get himself satisfied as to whether the sample signatures are reliable signatures. If sample signatures are fraught with falsity, such as artificiality and various other disturbing characteristics, then the expert would not be justified in placing reliance on the same. Here, the handwriting expert carried out his task properly and got satisfied about the reliability of the sample signatures. If a person while giving his signature before the Court under Section 73 of the Indian Evidence Act hesitates or deliberately slows down, then certainly the Court would not permit him to do so and that is a most important and paramount safe-guard when sample signatures are obtained before a Judge.

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Here, the handwriting expert applied his mind on that and satisfied that there was no artificiality involved in the sample signatures and accordingly used them for verifying the disputed signature

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and arrived at the conclusion that the purported signature of the first plaintiff in Ex.B9 was not tallying with the sample signatures, which means that the first plaintiff did not sign Ex.B9. As such, once the defendants Ex.B9 turned out to be a forged one, automatically, the trial Court's judgement loses its legality and the first appellate Court correctly analysed the evidence and arrived at the conclusion that Ex.B9 is not a reliable piece of document.

¶144

C.W.1-the handwriting expert was examined and he, placing reliance on his report-Ex.C7, gave his deposition. The cross-examination of C.W.1 is extracted hereunder for ready reference.

¶145

@FWf;F tprhuid = ehd; jla mwptpay; Jiwapy; 1982 k; Mz;oypUe;J gzpg[hpe;J tUfpnwd;/ 1995 k; Mz;oypUe;J ifbaGj;Jf;fs; xg;gpl;Lg; ghh;f;Fk; gphptpy; gzpg[hpe;J tUfpnwd;/ gp/rh/M/9 I kw;w Mtz';fSld; ePjpkd;wj;jpypUe;J Ma;t[f;fhf v';fs; Jiwf;F mDg;gg;gl;lJ/ ePjpkd;wj;jpypUe;J rPy; ,lg;gl;l fthpy; itj;J v';fs; mYtyfj;jpw;F Ma;t [f;fhf mDg;gg;gl;lJ/ ePjpkd;wj;jpypUe;J te;j fojj;jpy; Fwpg;gpl;oUe;j Mtz';fis itj;J eh;d Ma;t[ bra;J mDg;gpndd;/ ePjpkd;w mYtyf cjtpahsh; K:ykhf Mtz';fs; midj;Jk; v';fs; mYtyfj;jpw;F mDg;gp itf;fg;gl;lJ/ ifbaGj;Jf;fis ahh; nghl;lhh;fs; vd;gjw;F bgah; vd;dhy; brhy;y KoahJ/ ifbaGj;Jf;fis bghpJgLj;jp vLf;fg;gl;l nghl;nlhf;fis ePjpkd;wj;jpw;F mDg;gtpy;iy/ vd;bdd;d tpj;jpahf';fs; cs;sJ vd;gij vd;Dila fhuzj;jhspy; Fwpg;gpl;Ls;nsd;/ xU egh; gy neu';fshpy; ifbaGj;Jf;fs; nghl;lhYk; Tl ifbaGj;Jf;fspd; Fzhjpra';fs; khWglhJ/ ,aw;ifahd ntWghL ,Uf;Fk;/ vGJk; bghUis itj;Jk;. VGJk; ,lj;ij itj;Jk; ifbaGj;Jf;fspy; khw;wk; Vw;glhJ/ ehd; bfhLj;Js;s fhuzj;jhspy; fhuz';fs; rhpahd Kiwapy; Fwpg;gpltpy;iy vd;W brhd;dhy; mJ rhpay;y/ thjp jhd; gp/rh/M/9 y; ifbaGj;Jg; nghl;Ls;shh; vd;W brhd;dhy; mJ rhpay;y/ gp/rh/M/9 y; cs;s ifbaGj;ij bgf;bkh; vd;gth; nghltpy;iy/ ntW ahh; nghl;lhh;fs; vd;W ehd; Fwpg;gpl;L brhy;ytpy;iy. ePjpkd;wk; mDg;g[tij itj;J jhd; rhpghh;j;J mwpf;if mDg;g[nthk;/ ,e;j tHf;fpw;fhf thjpf;F rhjfkhd ehd; rhl;rp brhy;fpnwd; vd;W brhd;dhy; mJ rhpay;y/@

¶146

It is a typical example as to how the cross-examination of a handwriting expert should not be done in that manner. The expert should be cross-examined by inviting his attention to the specific characteristics, which he relied upon and he should be contradicted with reference to the well known treatise on the subject. Objection was not filed to expert's opinion by the defendants.

¶147

Here except mere denials during the cross-examination of C.W.1,

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¶149

the expert's evidence was not in any way demolished. The first appellate Court concentrated on the handwriting expert's evidence as well as his opinion and referred to it in his Judgement and he agreed with the opinion of the expert. Here, inasmuch as the learned appellate Judge agreed with the handwriting expert's opinion, by applying his mind on the chief as well as cross-examination of C.W.1, I am of the considered view that the first appellate Court's finding does not warrant any interference in second appeal and that too, in the absence of anything to show that the expert mis-directed himself or quite antithetical or against the views found in the treatise relating to handwriting examination, gave his opinion. Accordingly, on that ground also, the first appellate Court properly held that Ex.B9 is not a reliable piece of document.

¶150

The fact remains that the plaintiffs did not hand over possession of the ground floor. However, it is the contention of the defendants that the plaintiffs agreed to hand over possession of the ground floor, after carrying out some carpentry and painting work. If that be so, I am at a loss to understand as to what actuated or galvanized, propelled or impelled the defendants to pay allegedly the rent for the ground floor, which was not handed over by the plaintiffs to the defendants. In my considered opinion, a tenant cannot be compelled to pay rent for a floor even before his occupation of it. If the fault is on the part of the tenant in occupying it, then at least I could understand that the landlord insisted the tenant to pay for it. But here that is not the case of the defendants.

¶151

It is the contention of the defendants that the plaintiffs allegedly took time to carry out carpentry and painting work and because of that alone there was delay in handing over possession of the ground floor and hence in the meantime, they have been paying rent for the ground floor also uptil October 1998. This explanation offered on the defendants' side is far from satisfactory, as it is too big a pill to swallow.

¶152

To the risk of repetition and pleonasm, but without being tautalogous, I would like to recollect and hark back to the well settled proposition of law that preponderance of probabilities would govern the adjudication in civil cases. When the tenants were not at fault, I am at a loss to understand as to why they should pay rent for the ground floor also. As has been correctly pointed out by the learned counsel for the plaintiffs, in the written statement also, no plea was taken that the originals of Ex.A15 to 21-the receipts in a bunch were sent in the cover to the first defendant.

¶153

Ex.A6-the letter dated 13.11.1998 is an admitted document by both sides, as the brother of the first defendant wrote that letter and sent it to the plaintiffs. No doubt, in that letter defensively the defendants set out various versions. This is the only letter which has

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¶155

been admitted by both sides.

¶156

The core question arises as to what happened anterior to 13.11.1198. Exs.A15 to A21 are the copy of the rent receipts emerged on different dates. The defendants would state that the originals of those receipts were sent in a bunch, even though periodically they gave cheques/drafts as found set out in Ex.A15 to A.21 personally to the first plaintiff.

¶157

If that be so, I am at a loss to understand as to what made the defendants not to insist for a receipt then and there. The learned counsel for the plaintiffs would submit that at the ground floor of the same premises, the first plaintiff was available in his office and the defendants gave those cheques/drafts as referred to in Ex.A15 to A.21 personally and received receipts then and there.

¶158

It is not the case of the defendants that they allegedly returned back Ex.A15 to A21 by post. In such a case, it is not known as to why the defendants did not insist for the receipt then and there, if really as alleged by the defendants the first plaintiff did not issue receipt then and there. As such, here also the probabilities are that the originals of Ex.A15 to A21 were given to the defendants then and there and they, on receiving them, kept quiet without raising any objection.

¶159

When already, as per the defendants, bad blood started running in the relationship of the plaintiffs and the defendants as per Exs.B3 and B6, there is no rhyme or reason on the part of the defendants in contending that Exs.A15 to A21 allegedly sent in a bunch by the first plaintiff were given back to the first plaintiff in person, without even getting an acknowledgement from him. As such, the plea of the defendants are quite antithetical to the preponderance of probabilities. Based on tenuous, patchy, weak, meek, bleak pleas and evidence the defendants contested the matter.

¶160

The well known legal adage is that 'the witnesses might lie, but the circumstances would not lie' and as such, the circumstances, as stood evinced and evidenced from the records would reveal that the plaintiffs did not agree to let out the ground floor, but they let out only the second floor for a monthly rent of Rs.6000/-.

¶161

These facts have been considered by the first appellate Court and weighed very much in the mind of the first appellate Court and ultimately, it decreed the suit, warranting no interference in second appeal. I could see no perversity or illegality on the part of the first appellate Court in applying the aforesaid ratiocination in deciding the fact that the defendants agreed to pay a sum of Rs.6000/- per month for the second floor only.

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¶163

When this Court raised the query to the learned counsel for the defendants as to why when bad blood started running in the relationship of the plaintiffs and the defendants, the latter should continue to pay simply Rs.6000/- p.m. instead of Rs.3000/-p.m. as claimed by them, for which, the learned counsel for the defendants would unconvincingly answer that because bad blood started running in their relationship only from the 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 second floor, without any demur. On the contrary, the evidence on record relied on by the defendants would demonstrate and display that the defendants virtually lost all faith in the genuineness of the plaintiffs, as according to them, in Ex.B3 itself, which is not admitted by the plaintiffs, they stated thus:

¶164

"I am enclosing herewith the above two cheques towards rental advance against ground floor and second floor consisting of three bedrooms, two store rooms, one kitchen, hall and two bathrooms in each floor and open gallery in second floor subject to following conditions.

¶165

The possession of both floor will be given to me after completion of painting and carpentry work on 15.3.1998 positively else interest will be charged on advance amount @ 24% p.a.

¶166

Rent will be Rs.6,000/- for both the floors.

¶167

Advance amount will be returned or adjusted towards rent at any time in case of any dispute arises between both of us before vacating the premises.

¶168

4.The rent of Rs.6,000/- will be inclusive of Metro water and electricity charges and after providing the separate meter for each floor by you. If I consume electricity more than 500 units per month, I will pay for the excess.

¶169

The metro water & electricity charges will be paid by you directly to the concerned authority and in case of default it can be paid by me and same will be adjusted in the subsequent monthly rent.

¶170

The tenancy shall be for the period of five years with effect from 15.3.1998.

¶171

The above conditions were already discussed with you. If you accept the above, please receive the cheque and present in your bank else return the same to me with the bearer of this letter." (emphasis supplied)

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¶173

It is therefore clear that even according to the defendants, at the time of parting with the cheques for advance, there were no consensus ad idem and there was no positive response from the plaintiffs relating to the portions to be let for tenancy and as such, the defendants could not have paid Rs.6000/- every month as contemplated under Exs.A15 to A21 for two floors and also the defendants cannot be believed that they paid Rs.6000/-p.m. uptil October 1998 without insisting for rent receipt. In the disputed document Ex.B6-the letter dated 12.5.1998, the first defendant stated thus:

¶174

"I regret to intimate you that you have not yet started any of the Carpentary and Painting work in the said portions till by this day. Therefore, we are unable to occupy the ground floor. However, I have occupied the II Floor with my family members in urgency. I have also paid you the rent for the month of March 1998 (15/3 to 15/4' 98) in cash and enclosing herewith the above pay order towards rent for the month of April 1998, for both floors without prejudice to avoid any misunderstanding between us.

¶175

I once again regret to point out that earlier, after receiving the cash of Rs.6,000/- towards rent for the month of March, you had sent the rent receipt in which no amount was mentioned and even Revenue stamp was not affixed with no reference to ground floor so it was not accepted by us and was returned to you keeping the xerox copy of the same with us.

¶176

At this junction I want to clear the matter that Rs.6,000/- is the rent fixed for both the floor and not for the II floor only please send proper receipt for the month of March and April without fail. Also please complete the Carpenteary and painting work and handover the ground floor to us immediately.

¶177

In case of not complying with the agreed terms wide our letter dated 3.3.98, you are requested to return our money with interest @ 24% p.a.so that we can go for any other suitable place in city. However, if you are ready to comply with the demands I am ready to occupy the ground floor and will continue to pay my rent.

¶178

Hope you will understand the facts and do needful immediately."

¶179

It is therefore clear from the stand of the defendants that bad blood started running in the relationship of the plaintiffs and the defendants even much earlier to November 1998 and even in Ex.B6-the letter dated 12.5.1998, as per the defendants, D1 categorically admitted that the rent receipt for the month of March was received by D1 i.e. the original of Ex.A15, however, he would simply state that it was returned back without any evidence of having so returned. He would also contend

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¶181

that the first plaintiff was not in the habit of issuing rent receipt then and there. As such, the plea and the evidence on the side of the defendants are fraught with falsities and inconsistencies.

¶182

Hence, the preponderance of probabilities would clearly go against the defendants and it is only an after thought on the part of the defendants to place reliance on Ex.B3 as well as Ex.B6-the letter dated 12.5.1998 which are denied in toto by the plaintiffs. As such, the first appellate Court considered those details and rendered its reasoned Judgement dis-agreeing with the trial Court's Judgement without violating Order 41 Rule 31 of C.P.C.

¶183

59 Accordingly, the substantial questions of law (ii) to (iv) are answered in favour of the plaintiffs and as against the defendants as under:

¶184

Substantial Questions of Law (ii) is answered to the effect that the first appellate Court took into consideration the oral and documentary evidence adduced on both sides and properly rejected Exs.B3, B6 and B11.

¶185

Substantial Question of law (iii) is answered to the effect that the handwriting expert's opinion is reliable and the first appellate Court relied upon it properly.

¶186

Substantial Question of law (iv) is answered to the effect that the first appellate Court properly adhered to Order 41 Rule 31 of C.P.C. and reversed the findings of the trial Court.

¶187

Substantial Question of law No.(v):

¶188

Relating to arrears of electricity charges are concerned, the learned counsel for the plaintiffs would correctly invite the attention of this Court to the fact that even in Ex.B3 the defendants went to the extent of pleading that the rent of Rs.3000/- would include even electricity charges and water charges and in such a case, there was an implied admission on the part of the defendants that they did not pay the electricity charges. Furthermore, the electricity supply was disconnected and subsequently, the first defendant filed writ petition and got electricity connection, after executing a bond in favour of the Electricity Board and these facts are evident from Ex.B19. As such, the first appellate Court correctly considering those facts ordered reimbursement of such charges also, by the defendants.

¶189

The first appellate Court awarded damages by enhancing the old rent of Rs.6000/- per month by 25%. The learned counsel for the plaintiffs would submit that such awarding of damages was in accordance with law only as it is on the lower side. The learned counsel for the defendants would submit that absolutely there was no basis for quantifying such damages.

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¶191

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

¶192

In this case, no clinching evidence was adduced in that regard. No doubt, in certain cases for awarding meagre enhancement, no evidence is required, as the Court itself can take judicial notice of the developments. But in this case, what I would like to point out is that instead of collecting only a months' rent as advance, the plaintiffs collected one lakh as advance; no doubt, they never under took to pay interest while repaying that advance. But for the defendants parting with one lakh had they deposited one lakh minus one month rent in a fixed deposit, by this time they would have got sizeable interest as more than a decade elapsed from the date of payment of such huge advance. Hence considering the pro et contra, I am of the view that the damages could be at the same old rate of rent earlier, which was payable by the defendants in favour of the plaintiffs before the termination of the tenancy. Accordingly, that portion of the decree of the first appellate Court awarding enhancement at 25% over and above the old rent alone shall stand set aside and the defendants are liable to pay at the same old rate of rent per month as damages for use and occupation, after termination of tenancy till delivery of possession of the said second floor.

¶193

Relating to the invalidity of the termination notice is concerned, the learned counsel for the plaintiffs himself in all fairness stated 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 filed 15 days after the receipt of termination notice by the defendants, the question of challenging or impugning the validity of the termination notice would not arise.

¶194

In view of the ratiocination adhered to above, the substantial questions of law are answered in favour of the plaintiffs and as against the defendants and ultimately, the second appeal is partly allowed to the extent of setting aside the part of the judgment and decree of the first appellate Court in enhancing 25% over and above the old rate of rent as damages for use and occupation alone and the rest of the findings of the first appellate Court are confirmed. Accordingly, the decree shall follow.

¶195

The learned counsel for the appellants/defendants would make an extempore submission that six months' time at least might be granted for handing over possession of the premises concerned.

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¶197

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

¶198

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

¶199

In the result, the second appeal is partly allowed to the extent indicated above. However, there is no order as to costs.

¶200

Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Msk To 1. The III Additional Judge, City Civil Court, Chennai. 2. The XIV Asst.City Civil Court, Chennai. 3.The Section Officer, VR Section, High Court,Madras-104.

¶201

+1cc to Mr.R.Subramanian, Advocate Sr 14905 +2ccs to Mr.R.Thiagarajan, Advocate Sr 14842

¶202

GV(CO) km/11.3.

¶203

S.A.No.1016 of 2007

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Sanjaykumar Chordia v. Mahaveer & Company HUF

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Sanjaykumar Chordia v. Mahaveer & Company HUF

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