Rent control case - trial court decreed the case - additional evidence petition was dismissed in appeal and appeal also dismissed - objections about lack of pleadings , about onus of proof & appreciation of evidence - High court held that Whenever the question about lack of
pleading is raised the enquiry should not be so much about the form of the pleadings. Instead, the court must find out whether in substance the parties knew the case and the issues upon which
they went to trial. If, inspite of deficiency in the pleadings, parties knew the case, and they proceeded to trial on those issues by producing evidence, no interference is called for. and further held that An admission is the best evidence that an opposing party can rely upon and, though not conclusive, is decisive of the matter unless successfully withdrawn or proved erroneous.
The respondents admission that the petitioners father was the owner coupled with Ex.A-2 show that the petitioner inherited the subject shop from her father. The Evidence Act places admission in the province of relevance, presumably on the ground that they being declarations against the
interest of the person making them, they are in all probability true. and further held that all these documents relate to a period before the respondent marked Exhibits B2 to B8 before the Rent Controller on 14.09.2005. Except for a bald averment that these documents were misplaced, no explanation is forthcoming as to why these documents were not marked earlier or why they were not even referred to in the counter filed in R.C.C.No.8 of 2002. Parties to an appeal shall not be entitled to produce additional evidence unless they have shown that, inspite of due diligence, they could not produce such documents; and such documents are required to enable the court to pronounce proper judgment. =
Lack of proper pleadings - when to be considered
whether the respondent was the petitioners
tenant is not warranted
Whenever the question about lack of
pleading is raised the enquiry should not be so much about the
form of the pleadings. Instead, the court must find out whether in
substance the parties knew the case and the issues upon which
they went to trial. If, inspite of deficiency in the pleadings, parties
knew the case, and they proceeded to trial on those issues by
producing evidence, no interference is called for. (Ram Sarup
Gupta v. Bishun Narain Inter College ).=
It is clear, from the petition filed in R.C.C. No.8 of 2002, that
the petitioner claimed to be the landlord of the subject building,
and that the respondent was her tenant. Even if a plea is not
specifically made and yet is covered by an issue by implication,
and the parties knew that the said plea was involved in the trial,
then the mere fact that the plea was not expressly taken in the
pleadings would not necessarily disentitle a party from relying
upon it if it is satisfactorily proved by evidence. Where substantial
matters are touched, though indirectly or even obscurely in the
issues, and evidence has been led about them, then the argument
that a particular matter was not expressly taken in the pleadings
would be purely formal and technical. What the court has to
consider in dealing with such an objection is: did the parties know
that the matter in question was involved in the trial, and did they
lead evidence about it? (Bhagwati Prasad v. Chandramaul ; Ram
Sarup Gupta9).
Admission is the best piece of Evidence & shift of burden of proof
On the respondents
admission that the petitioners father was the owner of the shop,
and he had earlier taken the said shop on lease from him, the onus
shifted to the respondent to establish that he had purchased the
shop from the petitioners father for valid consideration. The effect
of an admission is that it shifts the onus on to the person
admitting the fact on the principle that what a party himself
admits to be true may reasonably be presumed to be so, and until
the presumption is rebutted, the fact admitted must be taken to be
established.
An admission is the best evidence that an opposing
party can rely upon and, though not conclusive, is decisive of the
matter unless successfully withdrawn or proved erroneous.
The respondents admission that the
petitioners father was the owner coupled with Ex.A-2 show that
the petitioner inherited the subject shop from her father. The
Evidence Act places admission in the province of relevance,
presumably on the ground that they being declarations against the
interest of the person making them, they are in all probability true.
Just like any other piece of evidence, admissions can be admitted
in evidence for drawing an inference of truth. (State of
Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari ; Law
of Evidence, by M. Monir, 15th Edn.) Admission of a party in the
proceedings, either in the pleadings or oral, is the best evidence
and the same does not need any further corroboration.
(Ahmedsaheb v. Sayed Ismail ). If the facts are admitted, it is
idle to contend that the party, on whom the burden of proof lay,
would still be liable to produce direct evidence to establish the fact.
(National Insurance Co. Ltd. v. Rattani ). Admission is the best
piece of evidence against the persons making admission. While
evidentiary admissions are not conclusive proof of the facts
admitted, and may be explained or shown to be wrong, they do
raise an estoppel and shift the burden of proof placing it on the
person making the admission or his representative-in-interest.
Additional evidence Or.41, rule 27 - not allowed
I.A. No.204 of 2009 was filed before the Appellate Court, by
petitioners 2 to 5 in this C.R.P, requesting the Court to receive (a)
the unregistered sale deed dated 10.12.1984 said to have been
executed by the petitioners father in favour of the respondent; (b)
the provisional sale deed dated 11.10.1978 allegedly executed by
the petitioners father in favour of Sri C.Harikrishna (his son-in-law
and the petitioners husband); [c] the settlement deed dated
07.03.2005 allegedly executed by Sri C. Harikrishna in favour of
the respondent; (d) the sale deed dated 19.03.1976 allegedly
executed by the petitioners father in favour of Sri V.A. Govindayya;
and (e) a telephone bill. Smt. Sundari R. Pisupati, =
all these documents relate to a period before the
respondent marked Exhibits B2 to B8 before the Rent Controller
on 14.09.2005.
Except for a bald averment that these documents
were misplaced, no explanation is forthcoming as to why these
documents were not marked earlier or why they were not even
referred to in the counter filed in R.C.C.No.8 of 2002.
Parties to an
appeal shall not be entitled to produce additional evidence unless
they have shown that, inspite of due diligence, they could not
produce such documents; and such documents are required to
enable the court to pronounce proper judgment.
(Karnataka Board of Wakf v. Govt. of India ).
In the absence of satisfactory reasons
for the non-production of the evidence in the trial court, additional
evidence should not be admitted in appeal as a party guilty of
remissness in the lower court is not entitled to the indulgence of
being allowed to give further evidence under this Rule. A party who
had ample opportunity to produce certain evidence in the lower
court but failed to do so, or elected not to do so, cannot have it
admitted in appeal.
2014 - Aug. Month - http://judis.nic.in/judis_andhra/filename=11807
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN
CIVIL REVISION PETITION NO.735 OF 2014
08-08-2014
K. Chengalraya Chetty (died) and others..Petitioners
Smt.Gomatheeswari.. Respondent
Counsel for the petitioners: Smt. Sundari R Pisupati
Counsel for respondent:Sri T.C. Krishnan
<GIST:
>HEAD NOTE:
?Citations:
1) (2014) 2 SCC 788
2) 2010 (1) ALD 366
3) 1995(2) ALT 61
4) 2014 (1) ALT 51 (SC)
5) (2012) 1 SCC 656)
6) 1994(3) ALT 461
7) (1995) 6 SCC 580
8) (1990) 4 SCC 286
9) (1987) 2 SCC 555
10) AIR 1966 SC 735
11) (2005) 5 SCC 784
12) AIR 1960 SC 100
13) (2013) 12 SCC 17
14) (2012) 8 SCC 516
15) (2009) 2 SCC 75
16) (1979) 4 SCC 790
17) (2000) 6 SCC 394
18) (2006) 5 SCC 545
19) AIR 1991 SC 91
20) 2007(4) ALT 472
21) (2003) 4 SCC 161
22) (2003) 10 SCC 653
23) AIR 1930 P.C. 57
24) AIR 1966 SC 1861
25) 1995 Supp (4) SCC 422
26) AIR 1965 SC 1008
27) AIR 1963 SC 1526
28) (1975) 3 SCC 698
29) (1979) 2 SCC 601
30) (2012) 8 SCC 148
31) (2008) 3 SCC 120
32) (2001) 7 SCC 503
33) (1978) 2 SCC 493
34) (2004) 10 SCC 779
35) AIR 1957 SC 912
36) AIR 1969 SC 101
37) (1987) 1 SCC 227
38) AIR 1980 SC 446
39) (2006) 9 SCC 772
40) (2011) 7 SCC 589
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN
CIVIL REVISION PETITION NO.735 OF 2014
ORDER:
The respondent herein, a hapless woman deserted by her
husband and whose sons are eking out their livelihood pushing
carts on the railway platform, has been fighting a lonely and
relentless battle, for the past more than twelve years, to regain
possession of a small shop in Chittoor Bus Stand from the
petitioners herein who have invoked the jurisdiction of this Court,
under Section 22 of the A.P. Buildings (Lease, Rent and Eviction)
Control Act, 1960, (hereinafter called the Act), against the order
of the Principal Senior Civil Judge, Chittoor in R.C.A.No.2 of 2006
dated 02.12.2013 confirming the order passed by the Principal
Junior Civil Judge-cum-Rent Controller, Chittoor in R.C.C.No.8 of
2002 dated 11.09.2006.
The deceased first petitioner (father of petitioners 2 to 5) is
the sole respondent in R.C.C.No.8 of 2002. The sole respondent
herein is the petitioner in R.C.C.No.8 of 2002 which was filed
under Section 10 of the Act seeking eviction of the deceased first
petitioner from the petition schedule shop along with other
incidental reliefs. Parties shall hereinafter be referred to as they
are arrayed in R.C.C.No.8 of 2002. R.C.C.No.8 of 2002 was
allowed on 11.09.2006 and the respondent was directed to vacate
and deliver vacant possession of the petition schedule shop within
two months from the date of the order. The Rent Controller held
that, if he failed to vacate and deliver possession within two
months from the date of the order, it was open to the petitioner to
eject him under due process of law. After R.C.C.No.8 of 2002 was
allowed by order dated 11.09.2006, the first petitioner herein
(respondent in R.C.C.No.8 of 2002) died and his children preferred
R.C.A.No.2 of 2006 before the Principal Senior Civil Judge,
Chittoor. During the pendency of R.C.A.No.2 of 2006, petitioners 2
to 5 herein filed I.A.No.204 of 2009 requesting the Court below to
receive the petition with attached documents. The Appellate
Court, by its order in R.C.A.No.2 of 2006 dated 02.12.2013,
dismissed the appeal confirming the order of the Rent Controller in
R.C.C.No.8 of 2002 dated 11.09.2006. The appellants were
granted three months time to vacate the schedule shop.
Consequent on R.C.A.No.2 of 2006 being dismissed, by order dated
02.12.2013, I.A.No.204 of 2009 was also dismissed on the same
day.
I. DOES A LANDLORD AND TENANT RELATIONSHIP EXIST
BETWEEN THE PETITIONER IN R.C.C.No.8 OF 2002 AND THE
RESPONDENT THEREIN?
Smt. Sundari R. Pisupati, Learned Counsel for the revision
petitioners, would submit that the sole respondent in this C.R.P.
did not adduce any evidence to show that she was the only legal
heir of the original landlord or that the first petitioner herein was
her tenant or that he had paid her rent; mere proof of title is not
sufficient; a landlord and tenant relationship must be established
for invoking the jurisdiction of the Rent Controller under the Act; it
is only if a landlord and tenant relationship is established would a
petition under Section 10 of the Act lie to evict the tenant from the
property of the landlord; no issue was framed by the Trial Court
whether a landlord and tenant relationship existed; the sole
respondent in this C.R.P. failed to establish, before the Courts
below, that she had put the first petitioner herein in possession; no
evidence was adduced regarding collection of rent; no lease
agreement was produced to show that there existed a landlord and
tenant relationship; and no evidence was let in by her to show that
she was the legal heir of the shop owner or that rent was paid to
her. Learned Counsel would rely on Tribhuvanshankar v.
Amrutlal ; Avulapalle Mallikarjuna v. N.T.
Chengalarayappa ; K.P. Janakiram v. K. Suguna Bai ;
Sebastiao Luis Fernandes (dead) through LRs v. K.V.P.
Shastri (dead) through LRs. .
On the other hand Sri T.C.Krishnan, Learned Counsel for
the respondent herein, would submit that the first petitioner in
this C.R.P had admitted before the Rent Controller that he was a
tenant of the respondents father for a period of three years; except
for a bare averment in the counter, that he had purchased the
property from the respondents father, no evidence was adduced by
him to show that he had purchased the property; while the first
petitioner claimed to have purchased the shop by paying
consideration of Rs.40,000/- on 10.12.1984 and to have obtained
an unregistered sale deed, no suit for specific performance, based
on the unregistered sale deed dated 10.12.1984, was filed; the first
petitioner admitted before the Rent Controller that the father of the
respondent was the owner of the subject shop; as the first
petitioner admitted having taken the shop on lease from the
respondents father, it is not in dispute that he was the tenant of
the respondents father; the respondent had produced a copy of the
Will to show that she was her fathers sole legal heir; it is evident,
therefore, that she became the landlord of the property of which
the first petitioner was the tenant; both the Courts below held that
there existed a landlord and tenant relationship between the
respondent and the first petitioner herein; the respondents
children are eking out their livelihood pushing carts on the railway
platform; and, as both the Courts below have concurrently held
against the petitioners herein, this Court should refrain from
interference. Learned Counsel would rely on Suraj Lamp and
Industries Pvt. Ltd. v. State of Haryana ; and T.S.
Prakash v. Xavier Emmanuel .
Where a plaintiff institutes a suit for eviction of his tenant,
based on the relationship of a landlord and tenant, the scope of the
suit is limited. The question of title cannot be gone into, as the
suit of the plaintiff would be dismissed even if he succeeds in
proving his title but fails to establish the privity of contract of
tenancy. In a suit for eviction, based on such a relationship, the
Court has only to decide whether the defendant is the tenant of the
plaintiff or not though the question of title, if disputed, may
incidentally be gone into in connection with the primary question
regarding the relationship between the litigating parties. In a suit
for eviction, between the landlord and the tenant, the Court will
take only a prima facie decision on the collateral issue as to
whether the applicant was the landlord. If the Court finds
existence of relationship of landlord and tenant between the
parties it will have to pass a decree in accordance with law. All that
the Court has to do is to satisfy itself that the person seeking
eviction is a landlord who has a prima facie right to receive the
rent of the property in question. In order to decide whether denial
of the landlord's title by the tenant is bona fide, the Court may
have to go into the tenant's contention on the issue, but the Court
is not to decide the question of title finally as the Court has to see
whether the tenant's denial of title of the landlord is bona fide in
the circumstances of the case. (Dr. Ranbir Singh v. Asharfi Lal ;
Tribhuvanshankar1; LIC v. India Automobiles & Co. ).
The pleadings in R.C.C.No.8 of 2002 must be construed
bearing in mind that the petitioner is not educated, she was
deserted by her husband, and her sons are making two ends met
pushing carts in the railway station. Pleadings should receive a
liberal construction. No pedantic approach should be adopted to
defeat justice on hair-splitting technicalities. Some times,
pleadings are expressed in words which may not expressly make
out a case in accordance with a strict interpretation of the law. In
such a case it is the duty of the court to ascertain the substance of
the pleadings to determine the question. It is not desirable to place
undue emphasis on form, instead the substance of the pleadings
should be considered. Whenever the question about lack of
pleading is raised the enquiry should not be so much about the
form of the pleadings. Instead, the court must find out whether in
substance the parties knew the case and the issues upon which
they went to trial. If, inspite of deficiency in the pleadings, parties
knew the case, and they proceeded to trial on those issues by
producing evidence, no interference is called for. (Ram Sarup
Gupta v. Bishun Narain Inter College ).
A microscopic dissection and a minute analysis of the
pleadings to ascertain whether the respondent was the petitioners
tenant is not warranted as, in his cross-examination as RW.1, the
respondent admitted that he was granted lease for a period of three
years, on a monthly rent of Rs.650/-, by the petitioners father; the
petitioners father had constructed the shop and had let out the
same to him for beedies and cigarette business; there were glass
and wooden almyrahs, along with plywood roofing, in the premises;
he had agreed to re-deliver the shop to the petitioners father in the
same condition after expiry of the three year lease period; the
petitioners father had obtained electricity connection for the
scheduled premises in his name, and the same was being
continued in his name even though he died seven or eight years
ago; the schedule premises is useful for business; the petitioner
was deserted by her husband for the last ten years; and the
petitioners sons were carrying on business on push carts on
railway platforms.
It is clear, from the petition filed in R.C.C. No.8 of 2002, that
the petitioner claimed to be the landlord of the subject building,
and that the respondent was her tenant. Even if a plea is not
specifically made and yet is covered by an issue by implication,
and the parties knew that the said plea was involved in the trial,
then the mere fact that the plea was not expressly taken in the
pleadings would not necessarily disentitle a party from relying
upon it if it is satisfactorily proved by evidence. Where substantial
matters are touched, though indirectly or even obscurely in the
issues, and evidence has been led about them, then the argument
that a particular matter was not expressly taken in the pleadings
would be purely formal and technical. What the court has to
consider in dealing with such an objection is: did the parties know
that the matter in question was involved in the trial, and did they
lead evidence about it? (Bhagwati Prasad v. Chandramaul ; Ram
Sarup Gupta9). In her evidence as P.W-1 the petitioner stated that
she was the absolute owner of the suit schedule property; the said
property originally belonged to her father; she was the only
daughter and the sole legal heir of her father who died on
02.08.1994; she was deserted by her husband; she was paying cist
to the Government, copies of which were filed as Ex.A-1; the
petition schedule property stood in her name as per Ex.A-2; she
had leased out the petition schedule premises to the respondent on
a monthly rent of Rs.650/- on 05.02.1998; originally the
respondent was a tenant under her father for some time; he later
vacated the premises; she carried on business in the petition
schedule premises; she then leased out the same to the respondent
who vacated the premises again during 1996; on the request of the
respondent, and due to unavoidable reasons, she had again leased
out the property to the respondent on a monthly rent of Rs.650/-;
she has three sons and a daughter; and her sons were carrying on
business in a pushcart. In cross-examination, the petitioner
admitted that, at the time of letting out the premises to the
respondent, no document was executed. She stated that, since
1986, she and her husband were not on cordial terms. She denied
the suggestions that her father sold the petition schedule property
in favour of the respondent in the year 1976 and, since then,
neither she nor the father had any right over the petition schedule
premises or that there was no relationship of landlord and tenant
between her and the respondent.
It was not even the case of the respondent before the Rent
Controller that there were any other legal heirs to the original
landlord other than the petitioner. Having admitted tenancy, albeit
of the petitioners father, the respondent claimed to have later
purchased the subject shop from the petitioners father on
payment of consideration of Rs.40,000/-. In his chief-examination
the respondent stated that, originally, the petition schedule
premises was allotted to the petitioners father by the Chittoor
Municipality, and he was carrying on business thereat; thereafter
the petitioners father had delivered possession of the shop
premises on 10.12.1984 receiving consideration of Rs.40,000/-
from him; since then he had been continuously carrying on
business, in the petition schedule premises, as the absolute owner
by paying necessary taxes; after receiving the total consideration of
Rs.40,000/-, the petitioners father had executed a document in
his favour; he had produced the original of the said document
before the Mandal Revenue Officer, Chittoor for getting a patta in
his favour, and hence had filed a xerox copy of the same; since the
date of purchase of the petition schedule premises by him from the
petitioners father, neither the petitioner nor her father were
owners of the schedule premises; the petitioner had not inducted
him as a tenant; and there was no relationship of landlord and
tenant between him and the petitioner. In cross-examination, the
respondent admitted that he did not mention, about the terms and
conditions of the lease, in his counter; he did not also mention the
same in his chief-affidavit; he did not obtain a registered sale deed,
from the petitioners father, for the schedule property; and he did
not produce any document in Court as proof of sale of the schedule
premises in his favour by the father of the petitioner.
No evidence was adduced by the respondent before the Rent
Controller regarding the mode and manner of payment of
consideration of Rs.40,000/- nor of any acknowledgement by the
petitioner or her father of receipt thereof. On the respondents
admission that the petitioners father was the owner of the shop,
and he had earlier taken the said shop on lease from him, the onus
shifted to the respondent to establish that he had purchased the
shop from the petitioners father for valid consideration. The effect
of an admission is that it shifts the onus on to the person
admitting the fact on the principle that what a party himself
admits to be true may reasonably be presumed to be so, and until
the presumption is rebutted, the fact admitted must be taken to be
established. An admission is the best evidence that an opposing
party can rely upon and, though not conclusive, is decisive of the
matter unless successfully withdrawn or proved erroneous.
(United India Insurance Co. Ltd. v. Samir Chandra
Chaudhary ; Phipson in his Law of Evidence (1963 Edn., para
678; Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak
Gosavi ). As the respondent failed to discharge this onus, both
the Courts below were justified in directing eviction of the
respondent from the shop belonging to the petitioner.
In RCC No.8 of 2002, the Rent Controller framed certain
points for consideration including 1). Whether the petitioner
succeeded to the schedule property from her father as his sole
legal heir? 2) whether the petitioner was entitled to evict the
respondent from the schedule property of the landlord; and 3)
whether the respondent is the owner of the schedule property as
claimed by him? In his order, in R.C.C. No.8 of 2002 dated
11.09.2006, the Rent Controller held that the petitioners father
had occupied the petition schedule shop thirty years ago and had
constructed a thatched shop thereon in the old bus stand area of
Chittoor; he was carrying on business thereat; a door number was
allotted to the petition schedule shop and was incorporated in the
municipal records in the year 1981-82; the petitioners father had
let out the shop to the respondent on a monthly rent of Rs.650/-;
the petitioners father died on 02.08.1994; the respondent
continued as a tenant in the schedule shop after the death of the
petitioners father; the petitioner was deserted by her husband for
the last ten years, and her three sons were carrying on business on
push carts; the respondent had set up ownership of the schedule
property, taking advantage of the death of the petitioners father, in
order to knock away the schedule property; he had taken
advantage of the weak position of the petitioner; though he
received Ex.A-2 legal notice, the respondent had failed to pay
arrears of rent; he had set up ownership to the schedule premises
without producing any documentary proof; he had admitted that
he did not obtain any registered sale deed from the petitioners
father for the schedule shop; the electricity service connection for
the schedule shop was in the name of the petitioners father; the
petitioner had not only proved that the respondent had committed
default, but had also proved that the petition schedule property
was required for her personal occupation so as to enable her sons
to set up business; the respondent had failed to prove that he had
paid rents regularly; the petitioner had succeeded to the schedule
property as the sole legal heir of her father; and she was entitled to
evict the respondent from the schedule premises.
In its order, in R.C.A. No.2 of 2006 dated 02.12.2013, the
appellate Court noted four points as arising for consideration in
the appeal including 1) whether there was any landlord and tenant
relationship between the petitioner and the respondent? and 2)
whether denial of the landlord and tenant relationship by the
respondent was bonafide? The Appellate Court held that there was
no dispute with regard to the identity of, and the present
occupation of the respondent over, the schedule property; and the
only dispute, as per the respondent, was that he had purchased
the schedule property from the petitioners father while he was his
tenant. After noting the admission of the respondent in cross-
examination, the Appellate Court observed that it was evident that
the petitioners father was the actual owner of the scheduled
property; he had leased out the property on a monthly rent of
Rs.650/- to the respondent; if any valid sale deed was executed by
the petitioners father in his favour, it was for the respondent to
have marked it as an exhibit; while R.W-1, in his chief-
examination, had stated that he had filed a xerox copy of the
document in Court, there was no explanation as to why he could
not obtain any registered document from the petitioners father;
the respondents contention was not valid in view of Section 2(6)
read with Section 17(b) of the Registration Act, 1908; and, as the
respondent had admitted his tenancy under the father of the
petitioner, there was no validity in his claim to have purchased the
property.
Immovable property can be legally and lawfully
transferred/conveyed only by a registered deed of conveyance.
(Suraj Lamp and Industries Pvt. Ltd.5). The respondent relied on
a photostat copy of an unregistered sale deed dated 10.12.1984 in
support of his claim to have purchased the subject shop from the
petitioners father. As no reliance can be placed on an
unregistered sale deed, and in the absence of any evidence
adduced to establish payment of consideration of Rs.40,000/- to
the petitioners father, the Courts below were justified in holding
that the respondent was unable to show that he was the owner of
the subject property. The respondents admission that the
petitioners father was the owner coupled with Ex.A-2 show that
the petitioner inherited the subject shop from her father. The
Evidence Act places admission in the province of relevance,
presumably on the ground that they being declarations against the
interest of the person making them, they are in all probability true.
Just like any other piece of evidence, admissions can be admitted
in evidence for drawing an inference of truth. (State of
Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari ; Law
of Evidence, by M. Monir, 15th Edn.) Admission of a party in the
proceedings, either in the pleadings or oral, is the best evidence
and the same does not need any further corroboration.
(Ahmedsaheb v. Sayed Ismail ). If the facts are admitted, it is
idle to contend that the party, on whom the burden of proof lay,
would still be liable to produce direct evidence to establish the fact.
(National Insurance Co. Ltd. v. Rattani ). Admission is the best
piece of evidence against the persons making admission. While
evidentiary admissions are not conclusive proof of the facts
admitted, and may be explained or shown to be wrong, they do
raise an estoppel and shift the burden of proof placing it on the
person making the admission or his representative-in-interest.
Unless shown or explained to be wrong, they are efficacious proof
of the facts admitted. (Samir Chandra Chaudhary11; Avadh
Kishore Das v. Ram Gopal ). As the respondent admitted that
he was earlier the tenant of the petitioners father, and as he failed
to establish that he had purchased the subject property, it is
evident that there existed a landlord tenant relationship between
the petitioner and the respondent as the petitioner had established
that she had inherited the subject shop from her father.
The mere fact that the petitioner did not produce a registered
lease deed, to show that she had let out the subject premises to
the respondent, is of no consequence. Lease of immoveable
property can be established by other evidence, even in the absence
of a registered lease deed. If there is other uncontroverted
evidence available on record to support the claim of grant of lease,
that would be sufficient to uphold the decree. Dehors the
instrument, parties can create a lease as envisaged in the second
paragraph of Section 107 of the T.P.Act. As a lease is a transfer of
a right to enjoy the property, and such transfer can be made
expressly or by implication even in the absence of a registered
instrument, the court can determine whether there was in fact a
lease otherwise than through such a deed. (Ahmedsaheb14;
Anthony v. K.C. Ittoop & Sons ). The status of the parties, on
the basis of undisputed facts pertaining to the demised premises,
as landlord and tenant can always be accepted and the rights of
the parties can be worked out on that basis. (Ahmedsaheb14).
In K.P. Janakiram3, reliance on which is placed by
Smt.Sundari R. Pisupati, Learned Counsel for the petitioner, both
the courts below had proceeded on the premise that the petitioner
had admitted that he was a tenant of the subject property though
there was a denial by the petitioner that neither his father nor he
was a tenant. The petitioners case was that his father was a
purchaser under an agreement, and he was the absolute owner;
and after his fathers death, he had become the absolute owner. It
is in this context that this Court held that it was not the Law that,
whenever the landlord establishes title and the tenant fails to prove
the title pleaded by him, such a person shall be construed to be a
tenant under the landlord; when the alleged tenant fails to prove
his own title, it did not mean that he was a tenant under the
owner; his possession could be in any other capacity like a
mortgagee or a licensee or even a person in adverse possession;
having regard to the specific stand taken by the petitioner-tenant,
that he was not a tenant of the subject premises, the question that
the Courts below should have decided was whether there was a
jural relationship of landlord and tenant between the parties; and
the proviso to Section 10 of the Rent Control Act specifically
provided that whenever a tenant denies title of the landlord, if such
a denial is bonafide, it is incumbent on the part of the Rent
Controller to direct the landlord to approach the Civil Court to
establish his title and seek eviction of the tenant.
In Avulapalle Mallikarjuna2 this Court held that every
person in possession of a premises, even without title, cannot
automatically become a tenant of any one including the rightful
owner; while possession can come into existence on the unilateral
act of parties, a tenancy would emerge only with the consent of
parties; the consent can be expressed orally, or in writing; and,
until the tenancy is established, there is no basis for the trial
Court to order eviction of the respondent. Except to contend that
he had purchased the property, it is not even the case of the
respondent that his occupation of the subject shop was as a
mortgagee or a licensee or that he was in adverse possession.
Reliance placed by Smt. Sundari R. Pisupati, on the judgments of
this Court in K.P. Janakiram3 and Avulapalle Mallikarjuna2, is,
therefore, misplaced.
Findings of fact recorded by the courts below, reached on a
careful appreciation of the entire material evidence available on
record, should, ordinarily, not be interfered with by this Court in a
revision petition filed under Section 22 of the Act. (T.S.
Prakash6). The general rule, that the High Court will not interfere
with concurrent findings of the courts below, is not an absolute
rule. Some of the well-recognised exceptions are where (i) the
courts below have ignored material evidence or have acted on no
evidence; (ii) the courts have drawn wrong inferences from proved
facts applying the law erroneously; or (iii) the courts have wrongly
cast the burden of proof. A decision based on no evidence are not
only cases where there is a total dearth of evidence, but also to
cases where the evidence, taken as a whole, is not reasonably
capable of supporting the finding. (Sebastiao Luis Fernandes4;
Hero Vinoth (minor) v. Seshammal ). The orders, passed by
both the Courts below, do not fall under any of the exceptions
referred to hereinabove. The concurrent findings of fact, reached
on an overall consideration of material and relevant facts, by the
Courts below do not, therefore, necessitate interference in revision
proceedings under Section 22 of the Act.
II. IS FAILURE TO PASS ORDERS IN I.A.No.204 OF 2009,
BEFORE R.C.A.No.2 OF 2006 WAS DISPOSED OF, FATAL?
Smt. Sundari R. Pisupati, Learned Counsel for the revision-
petitioners, would submit that I.A.No.204 of 2009, requesting the
appellate Court to receive additional documents, was not
considered before the appeal in R.C.A.No.2 of 2006 was disposed
of. Learned Counsel would rely on The Premier Automobiles
Ltd., Bombay v. Kabirunnissa ; and Thimmaraju
Satyanarayana Rao v. Secretary, I.L.T.D. Co. Staff Co-operative
Industrial House Constructions Society Ltd .
On the other hand Sri T.C.Krishnan, Learned Counsel for
the sole respondent in this C.R.P, would submit that the
documents filed by petitioners 2 to 5 herein, in I.A.No.204 of 2009,
are wholly irrelevant and are not supported by any pleadings in the
counter filed in R.C.C.No.8 of 2002; all the documents, filed along
with I.A.No.204 of 2009 in R.C.A.No.2 of 2006, are forged and
fabricated; among the documents, filed along with I.A.No.204 of
2009, is a settlement deed dated 07.03.2005 allegedly executed by
Sri C.Hari Krishna in favour of the respondent in R.C.C. No.8 of
2002; the first petitioner filed his chief-examination as RW.1,
before the Rent Controller, on 10.02.2005; R.C.C.No.8 of 2002 was
adjourned to 13.07.2005 for examination and marking of
documents; the respondent in R.C.C. No.8 of 2002 marked Exs.B1
to B8, and was cross-examined thereafter on 14.09.2005; all the
documents, which petitioners 2 to 5 in this C.R.P. filed along with
I.A.No.204 of 2009, relate to a period prior to 13.07.2005 on which
date Exs.B1 to B.8 were marked; no explanation is forthcoming
from petitioners 2 to 5 herein regarding non-filing of these
documents along with Exs.B1 to B.8; evidence can be let in only to
support a plea; in the absence of any plea in the counter filed in
R.C.C.No.8 of 2002, it is not open to petitioners 2 to 5 herein to let
in evidence in support of a non-existent plea; I.A.No.204 of 2009 in
R.C.A.No.2 of 2006 was dismissed on 02.12.2013; and the
petitioners herein have not chosen to question the said order either
in the present revision or separately.
In The Premier Automobiles Ltd., Bombay19, during the
pendency of the appeal before the appellate court, an application
for admitting additional evidence was filed by the appellants, which
remained undisposed of. Even while pronouncing its judgment
disposing of the appeal finally, the appellate court did not advert to
it. It was only after the case was disposed of that the application
for additional evidence was rejected by a short order, observing
that the appellants had sufficient opportunity to produce the
documents in the trial court, and it had failed to do so. It is in this
context that the Supreme Court held:-
..The learned counsel for the appellant has also placed before us
several material pieces of evidence and circumstances including an important
admission of the original plaintiff, and in reply the learned advocates for the
respondents have relied upon the evidence led on their behalf and accepted by
the first two Courts. We do not consider it appropriate to deal with them as in
our view, the entire evidence led by the parties requires a fresh consideration
by
the Court of facts. Accordingly, we allow the appeal, set aside the judgments of
the appellate Court and the, High Court, and remit the case to the appellate
court for a fresh decision in accordance with law. THE Court will, in the first
instance, hear and dispose of the application under Order 41, Rule 27, Civil
Procedure Code'and onlv thereafter take up the final hearing of the appeal..
In Thimmaraju Satyanarayana Rao20 an application, for
reception of additional evidence, was made before the appellate
Court and certain documents were filed along with the said
application. On the same day, on which judgment was delivered in
the appeal, the application, for reception of additional evidence,
was dismissed as infructuous. It is in this context that this Court
held:-
.In the light of the peculiar facts and circumstances of the case and
taking into consideration the nature of the order which was made by the
appellate Court in relation to the application for reception of the additional
evidence, the decree and judgment of the appellate Court are hereby set aside
and the matter is remanded to the appellate Court for the purpose of deciding
the application for reception of additional evidence and also further make
appropriate orders in the appeal in accordance with law..
I.A. No.204 of 2009 was filed before the Appellate Court, by
petitioners 2 to 5 in this C.R.P, requesting the Court to receive (a)
the unregistered sale deed dated 10.12.1984 said to have been
executed by the petitioners father in favour of the respondent; (b)
the provisional sale deed dated 11.10.1978 allegedly executed by
the petitioners father in favour of Sri C.Harikrishna (his son-in-law
and the petitioners husband); [c] the settlement deed dated
07.03.2005 allegedly executed by Sri C. Harikrishna in favour of
the respondent; (d) the sale deed dated 19.03.1976 allegedly
executed by the petitioners father in favour of Sri V.A. Govindayya;
and (e) a telephone bill. Smt. Sundari R. Pisupati, Learned
Counsel for the revision petitioners, would fairly state that none of
the aforesaid documents are registered documents.
In the affidavit filed in support of I.A. No.204 of 2009, the 3rd
petitioner herein stated that Sri C. Harikrishna had executed a
settlement deed dated 07.03.2005 in favour of their father Sri K.
Chengalraya Chetty; their father was in possession of the
documents mentioned in the petition along with other connected
documents, as he was the kartha and was managing the family;
his deceased father could not file the same as it was misplaced in
the house; after his demise, a thorough search was made in the
house, and they were able to trace the documents; hence they were
filing the same with the application; the same may be received as
additional evidence in the appeal; the said documents were
material and relevant for a just decision in the case; and the lapse
in not filing the same earlier was neither willful nor wanton.
None of the documents (except the unregistered sale deed
dated 10.12.1984) which were sought to be produced in evidence,
by way of I.A.No.204 of 2009, are referred to in the counter filed by
the respondent (the deceased first petitioner in this C.R.P) before
the Rent Controller. In the absence of a clear plea no amount of
evidence, led in relation thereto, can be looked into and the
respondent cannot be allowed to build up a case on a non-existent
plea. (Bondar Singh v. Nihal Singh ; Rajgopal v. Kishan
Gopal ; Siddik Mahomed Shah v. Mt. Saran ; Bhagat Singh v.
Jaswant Singh ). No party can be permitted to travel beyond its
pleading and all necessary and material facts should be pleaded by
the party in support of the case set up by it. (Ram Sarup Gupta9).
There is no lis between the parties on a question unsupported by
pleadings and the court would not examine the same even if some
evidence is adduced in this regard. (Rajgopal22). Merely taking
out an application, under Order 41 Rule 27, to lead evidence will
not suffice as no evidence can be let in without any pleading. (Syed
and Co. v. State of J&K ).
Courts should be cautious and must always act with great
circumspection in dealing with claims for letting in additional
evidence. (Municipal Corpn. of Greater Bombay v. Lala
Pancham ). The general principle is that the appellate court
should not travel outside the record of the lower court and cannot
take any evidence in appeal. However, as an exception, Order 41
Rule 27 CPC enables the appellate court to take additional
evidence in exceptional circumstances. The appellate court may
permit additional evidence only and only if the conditions laid
down in this Rule are found to exist. The parties are not entitled,
as of right, to the admission of such evidence. The provision does
not apply when, on the basis of the evidence on record, the
appellate court can pronounce a satisfactory judgment. The matter
is entirely within the discretion of the court and is to be used
sparingly. Such a discretion is only a judicial discretion
circumscribed by the limitation specified in the Rule itself. (K.
Venkataramiah v. A. Seetharama Reddy ; Lala Pancham26;
Soonda Ram v. Rameshwarlal ; Syed Abdul Khader v. Rami
Reddy ; and Union of India v. Ibrahim Uddin ). Parties to the
lis are not entitled to produce additional evidence as of course or
as a routine. They must satisfy the conditions stated in Order 41
Rule 27. (Basayya I.Mathad v. Rudrayya S.Mathad ).
It was the case of the respondent, in the counter filed by
him before the Rent Controller, that he had purchased the subject
shop from the petitioners father. Except the unregistered sale
deed dated 10.12.1984, the other documents filed along with I.A.
No.2004 of 2009 are unconnected with the pleadings. A new case
was sought to be set up, for the first time in appeal, by the
appellants (petitioners 2 to 5 in this C.R.P). The affidavit filed in
support of I.A.No.204 of 2009 makes no mention as to how these
documents were necessary for the appellate court to pronounce
judgment. As an unregistered sale deed cannot be looked into, to
determine whether or not immovable property was alienated, the
revision petitioners cannot be said to have suffered prejudice as a
result of the appellate court dismissing I.A.No.204 of 2009 after
R.C.A.No.2 of 2006 was dismissed on 02.12.2013.
The order passed by the Principal Senior Civil Judge, in
I.A.No.204 of 2009 dated 02.12.2013, has not been subjected to
challenge, and it is only the order passed in R.C.A.No.2 of 2006
dated 02.12.2013 which is questioned in this C.R.P. The provisions
of Order 41 Rule 27 have not been engrafted in the Code so as to
patch up the weak points in the case and to fill up the omission in
the court of appeal it does not authorise any lacunae or gaps in
evidence to be filled up. (N. Kamalam v. Ayyasamy ). The
appellate court should not, ordinarily, allow new evidence to be
adduced in order to enable a party to raise a new point in appeal.
(Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co. ;
and Ibrahim Uddin30). The requirement of Order 41 Rule 27 CPC
must be limited to those cases where it is found necessary to
obtain such evidence for enabling the Court to pronounce
judgment. This provision does not entitle the appellate court to let
in fresh evidence at the appellate stage where, even without such
evidence, it can pronounce judgment in a case. (Lala Pancham26;
Ibrahim Uddin30; Lala Pancham26; N. Kamalam32).
As has been rightly pointed out by Sri T.C. Krishnan,
Learned Counsel, all these documents relate to a period before the
respondent marked Exhibits B2 to B8 before the Rent Controller
on 14.09.2005. Except for a bald averment that these documents
were misplaced, no explanation is forthcoming as to why these
documents were not marked earlier or why they were not even
referred to in the counter filed in R.C.C.No.8 of 2002. Parties to an
appeal shall not be entitled to produce additional evidence unless
they have shown that, inspite of due diligence, they could not
produce such documents; and such documents are required to
enable the court to pronounce proper judgment. (Karnataka Board
of Wakf v. Govt. of India ). In the absence of satisfactory reasons
for the non-production of the evidence in the trial court, additional
evidence should not be admitted in appeal as a party guilty of
remissness in the lower court is not entitled to the indulgence of
being allowed to give further evidence under this Rule. A party who
had ample opportunity to produce certain evidence in the lower
court but failed to do so, or elected not to do so, cannot have it
admitted in appeal. (State of U.P. v. Manbodhan Lal
Srivastava ; S. Rajagopal v. C.M. Armugam ; and Ibrahim
Uddin30). The person seeking admission of additional evidence
should be able to establish that, with the best efforts, such
additional evidence could not have been adduced at the first
instance. (Shivajirao Nilangekar Patil v. Mahesh Mdhav
Gosavi ).
I.A. No.204 of 2009 was filed by petitioners 2 to 5 herein
seven years after the sole respondent in this C.R.P. had filed R.C.C.
No.8 of 2002 before the Rent Controller, and three years after they
had filed R.C.A. No.2 of 2006 before the Principal Senior Civil
Judge, Chittoor. Where an application to the appellate Court has
been made very many years after the filing of the petition, and
several years after the appeal had been filed, no interference from
this Court is called for against an order passed by the appellate
Court refusing to entertain the I.A. (Pramod Kumari Bhatia v.
Om Prakash Bhatia ; Lala Pancham26).
If, as contended by petitioners 2 to 5 herein, the father of the
petitioner in R.C.C.No.8 of 2002 had really executed the sale deed
dated 19.03.1976 in favour of Sri V.A. Govindaiah, the question of
his executing a sale deed later in favour of the respondent in
R.C.C. No.8 of 2002 on 10.12.1984 would not arise, as he could no
longer be said to have title over the subject property. Likewise,
after executing a sale deed in favour of Sri V.A. Govindaiah on
19.03.1976, the petitioners father could not have executed a sale
deed in favour of Sri C. Harikrishna on 11.10.1978 as he had
already parted with his title over the property earlier. As the
petitioners father did not have title, and could have conferred title
over the property in favour of Sri C. Harikrishna on 11.10.1978,
Sri C.Harikrishna could not have executed a valid settlement deed
in favour of the respondent on 07.03.2005, as he himself had no
title over the property. The submission of Sri T.C. Krishnan,
Learned Counsel, that these documents are fabricated cannot,
therefore, be brushed aside.
In the instant case, it is not as if the additional evidence was
required by the Court to enable it to pronounce judgment. The
documents sought to be brought on record are not documents
which were discovered later. The documents could have been
produced before the Rent Controller. (State of Gujarat v.
Mahendrakumar Parshottambhai Desai ). Nothing has been
averred as to how these documents have any bearing on any of the
issues involved in the present case. Even in the application there
is no averment as to the relevancy and necessity of the document
to be brought on record by way of additional evidence, and for it to
be read in evidence. It is, therefore, not in the interest of justice to
allow such an application. (Noor Sk. Bhikan v.State of
Maharashtra ). I see no reason, therefore, to accept the
submission of Smt. Sundari R. Pisupati, Learned Counsel for the
petitioner, that the order of the appellate Court, in R.C.A.No.2 of
2006, should be set aside and the appeal remanded back to the
Principal Senior Civil Judge directing him to pass orders in
I.A.No.204 of 2009 either before or along with R.C.A.No.2 of 2006.
CONCLUSION:
Viewed from any angle, the order of the Learned Principal
Senior Civil Judge, Chittoor in R.C.A.No.2 of 2006 dated
02.12.2013, affirming the order of the Rent Controller in
R.C.C.No.8 of 2002 dated 11.09.2006, does not necessitate
interference in the present revision proceedings. The C.R.P fails
and is, accordingly, dismissed. The miscellaneous petitions, if any
pending, shall also stand dismissed. No costs.
______________________________
RAMESH RANGANATHAN, J.
Date:08-08-2014.
Note:
L.R. copy to be marked.
B/O
MRKR/CS
After pronouncement of the order, Smt.Sundari R.Pisupati,
Learned Counsel for the petitioners, submitted that the petitioners
undertook to voluntarily vacate the premises within three months;
and this Court may grant them three months time to vacate the
subject premises. As no affidavit of undertaking has been filed by
the petitioners before this Court, it would suffice if they are
permitted to submit an affidavit of undertaking before the Court
below. In case an undertaking is filed by the petitioners, within
one week from today, to vacate the subject premises within three
months from today, the Court below shall consider the same, and
pass orders thereupon, in accordance with law.
______________________________
RAMESH RANGANATHAN, J.
Date:08-08-2014.
