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Judgment
G. Rajasekharan, J.—Plaintiff, the appellant, is the Board of Trustees of the Cochin. Port Trust, represented by its Chairman. First defendant is a partnership firm, and defendants 2 to 9 are the partners. The plaintiff leased a plot in the Willingdon island, having an extent of 71.5 cents to the first defendant sometime in 1961. The first defendant put up certain structures and was using them as godowns. It is admitted case that for subleasing the premises, first defendant has to get the permission of the lessor and a levy, called sublease levy is payable by the lessee to to the lessor. According to the plaintiff, during the period 1-6-1979 to 31-5-1980 the first defendant sub-leased the premises to M/s. Janatha Tea Traders (P) Ltd. unauthorisedly and without the permission of the lessor, and as sublease levy, a sum of Rs. 21, 739/14 is due to the plaintiff. It is to recover that sum together with interest the suit is filed. "
The main contention is that there was no sublease, but during the period the Janatha Tea Traders (P) Ltd. was given warehousing facilities only, and the arrangement was that the first defendant shall continue in possession of the premises and Janatha Tea Traders were allowed to store their goods under the exclusive control of the defendants, and for such an arrangement, no sublease levy is payable.
The trial court found that there was no sublease arrangement, and the arrangement was one by which tea-chests belonging to Janatha Tea Traders were being stored in the godown as per Ext. B3 agreement in other words, the trial court accepting the contention that the premises continued to be in possession of the defendants and the tea chests were being stored there under the exclusive control of the defendants, dismissed the suit. Aggrieved by that, the plaintiff has come up in appeal.
The evidence before the trial court consists of Exts. A1 to A17 and PW1 on the side of the plaintiff. No witness was examined on the side of the defendants, but Exts. B1 to B10 were seen to have been marked in evidence by consent.
The trial court cast the entire burden to prove the sublease arrangement on the plaintiff, and holding that the plaintiff has not discharged that burden non suited the plaintiff in paragraph 10 of the judgment, the court says:
Under Section 101 of the Indian Evidence Act, a party who desires the Court to give judgment as to any right or liability, must prove the facts on which the existence of that right or liability depends in this case the plaintiff seeks a decree for recovery of sub - lease levy on the allegation that the 1st defendant has sub leased the premises to M/s. Janatha Tea Traders (Pvt.) Ltd., for the period from 1-6-1979 till 31-5-1980 and hence they are liable to pay the plaintiff the amount of sub lease levy claimed in the plaint. As this allegation is denied the burden of proof u/s 101 of the Evidence Act is with the plaintiff.
The Learned Counsel for the appellant challenges this finding and according to him, even though the primary burden was on the plaintiff, since the real nature and character of relationship between the defendants and the Janatha Tea Traders is a matter within the exclusive knowledge of the defendants, the onus to prove the character and nature of the particular relationship was with the defendants, and the trial court has wrongly cast the burden on the plaintiff. In support of this proposition, Learned Counsel would rely on the decision reported in K.A. Abdul Salam Vs. The District Judge and other, (K.A. Abdul Salam T. The District Judge and others). That was also a case where the dispute was as to whether there was a sublease or not There, the court observed;
1 do not think that it is obligatory on the part of the landlord to establish a further fact after indicating all the circumstances that there is a sub lease by the original tenant to establish on independent evidence that the sublease is on payment of premium or for valuable consideration. It will be a fact exclusively within the knowledge of the tenant and subtenant and so it may not be possible for landlord to establish that fact. The landlord''s obligation is only to place before the court the circumstances and evidence, which would indicate a case of sublease. Then it will be a matter for taking a legal inference on the relevant facts.
Here, PW1 has stated that even after the expiration of the earlier period of sublease on 31.5.1979, the Janatha Tea Traders were, found in possession of the premises with their goods stored there and their employees engaged in activities. According to Learned Counsel this was sufficient to reach the inference that the arrangement was a sublease and to disprove that or to prove that the arrangement was only providing warehousing facilities, the onus is on the defendants. The submission cannot be brushed aside. According to Learned Counsel for the defendants, Exts. B1 to B3 would prove that the arrangement was not a sublease arrangement, but was a different arrangement by which the Janatha Tea Traders (P) Ltd. was allowed to store tea chests, which was within the exclusive control of the defendants The appellant''s counsel would submit that the documents even though were marked by consent, all were not genuine documents and if actually they were genuine documents, the necessary documents could have been produced before the plaintiff when called for under Ext. A6, and according to him, the delay casts serious suspicion on the genuineness of Exts. A14 series and Exts. B1 to B3
This is a case where no witness on the side of the defendants was examined, and the defendants were relying on the documents marked in evidence by consent of the plaintiff. There is no explanation offered or opportunity given to explain the documents, or an opportunity was available to the plaintiff to challenge there documents. As indicated earlier, the defendants proceeded on the premise that the entire burden is with the plaintiff and probably that misled the defendants is not adducing more evidence in the nature of oral testimony. Considering the entire circumstances of the case it appears that it is a fit case where the case is remitted back to the trial Court so that the parties get one more opportunity to adduce evidence to establish the true nature and character of the arrangement between the defendants and the Janatha Tea Traders (P) Ltd. When there is misdirection as regards onus of proof and the lower court''s decision was vitiated by that, and a decision on a question of fact and law is called for, it is desirable and proper that the matter is remitted to the trial court for fresh disposal affording an opportunity to the parties for adducing more evidence AIR 1941 P.C. 99-Heirs of Prince Mohamed Selim v. Attorney General of Palestine). When the lower court is largely influenced to arriving at a finding by the question of burden of proof incorrectly thrown on the plaintiff the proper course is to send the case back for fresh disposal ( Partap Narain Singh and Others Vs. Ram Kumar Singh and Others, .
Here the entire burden was cast on the plaintiff. Forgetting the fact that the relationship between the defendants and the Janatha Tea Traders and the arrangement under which the latter''s tea chests were stored in the premises are matters within the exclusive knowledge of the defendants, the trial court non suited the plaintiff. The proper course in the circumstances, is to send the case back to the trial court for fresh disposal.
In the result, the appeal is allowed, the decree and judgment are set aside and the case is remitted back to the trial court for fresh disposal according to law and in the light of the observations made above. It is made clear that the parties shall be afforded an opportunity to adduce further evidence in the case. The court fee paid on the Memorandum of Appeal shall be refunded. Parties shall appear before the trial court on 24-1-1994.
The appeal is disposed of as above.