Rajan Pancholi and Others vs Tarabai V. Hate and Others

M.S. Sonak, J—This petition is directed against the judgments and decrees dated 28 July 1993 and 24 February 1995 made by the Small Causes Court (Trial Court) and the Division Bench of the Small Causes Court (Appeal Court) ordering eviction of the petitioners from the suit premises on the ground of default in payment of rents.

The main issue involved in this petition is whether the finding of fact recorded by the two Courts that the statutory notice dated 30 October 1977 was indeed served upon the petitioner-tenant (Rajan Pancholi), warrants interference by this Court in exercise of extra ordinary jurisdiction under Article 227 of the Constitution of India?

Some time in the year 1960, Tarabai Hate (Hate) let out to Rajan Pancholi (Pancholi) premises situate at ground floor, Hate Wadi, Ruia Park Road, Juhu, Santacruz (West), Bombay 400054 (suit premises) for monthly rent of Rs. 150/- or thereabouts. The petitioners - tenants are the legal representatives of Rajan Pancholi. The respondents - landlords are the legal representatives of Tarabai Hate.

In 1964, Hate instituted eviction suit No. 755/6383 of 1964 against Pancholi on ground of default in payment of rents. This suit was compromised and disposed of by consent decree dated 26 July 1966.

On 4 July 1978, Hate instituted RAE Suit No. 997/3458 of 1978 against Pancholi seeking eviction from the suit premises on grounds of default in payment of rents. The plaint made reference to issue and service of statutory notice dated 30 October 1977 under Section 12(2) of The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Rent Act), by which arrears for eight months i.e. from 1 February 1977 to 30 October 1977 were demanded by Hate from Pancholis.

Pancholis filed their written statement on 9 July 1979. The defence was mainly twofold. The first being that Hate illegally disconnected water supply to the suit premises, as a result of which Pancholi was required to obtain new water connection from Bombay Municipal Corporation by expending a sum of Rs. 600/-and there was oral agreement between the parties that such amount be adjusted against payment of rents in respect of the suit premises. The second defence was that the rents were actually offered several times but Hate refused to accept the same with ulterior motives. On 6 August 1990, i.e., eleven years since the filing of the original written statement, the same was amended to introduce paragraph 2-A and raise the defence that the statutory notice dated 30 October 1977 was never received by Pancholi.

Based upon the pleadings of the parties, the Trial Court, on 12 September 1990 framed the following issues :

"ISSUES :

Whether the Plaintiff proves that defendant was in arrears of rent from 1st February, 1977 till and of 30th September 1977 at a monthly rate of Rs. 171.73 as alleged in the plaint?

Whether the Plaintiff proves that there was a proper and valid demand by notice dated 30th October 1977 by the plaintiff to the defendant as alleged in the plaint?

Whether the defendant is entitled to raise the dispute of standard rent in his arisen standard? If yes, then what will be standard rent of the premises?

Whether the defendant proves that he was ready and willing to pay the standard rent and permitted increases to the Plaintiff within one month from the date of receipt of the notice dated 30th October 1972?

What order?"

Evidence was led by both the parties and the Trial Court by judgment and decree dated 20 July 1993 decreed Hates suit and ordered eviction of Pancholis from the suit premises. Appeal No. 133 of 1993 was dismissed by the Appeal Court on 24 February 1995. Hence, the present petition.

Mr. Dhakephalkar, the learned Senior Advocate for Pancholis made the following submissions :

"(A) That the statutory notice dated 30 October 1977 was never served upon the Pancholi. There were no pleadings in the plaint as to the manner of alleged service of said statutory notice upon Pancholi. In the absence of pleadings, the defence that such notice was personally delivered by Vijaykumar Hate to Rajan Pancholi on 31 October 1977, was required to be ignored. No amount of evidence which travels beyond the pleadings could at all have been looked into by the two Courts. This is settled principle having been breached, there is jurisdictional error in making the impugned judgments and decree;

(B) The Appeal Court clearly exceeded its jurisdiction by setting aside the order dated 6 August 1990, by which the Trial Court had permitted Pancholi to amend the written statement and clarify that statutory notice dated 30 October 1977 had not been served. The Appeal Court has purported to exercise powers under Section 105 of CPC, which provision neither permits nor sustains such an exercise;

(C) Assuming that the Appeal Court had jurisdiction to entertain challenge to the order dated 6 August 1990 in the appeal instituted by Pancholi, the Appeal Court has committed an error apparent on face of record in not appreciating that even an express admission, can always be explained by resort to amendment. In the present case, there was no admission in the context of receipt of statutory notice. In any case, when the Appeal Court has incorrectly held that there was an implied or constructive admission, but the Appeal Court failed to appreciate that such implied admission, an always be explained by way of amendment. According, the exercise, suo moto undertaken by the Appeal Court, sounds in the arena of perversity;

(D) Neither the Trial Court nor the Appeal Court have appreciated the settled principles of law in the matter of evidentiary value to be accorded to the opinion of a handwriting expert. The trial court has neither discussed the report of the expert nor his deposition. The Appeal Court has virtually declined to advert to the opinion and deposition of the handwriting expert, by repeatedly observing that it did not wish to be a slave to such opinion. If, the report and deposition of the handwriting expert were to be appreciated in accordance with the settled principles of law, then it would be clear that there is no legal evidence on the aspect of service of notice dated 30 October 1977 upon Pancholi. In the absence of proof of service, no decree of eviction on the ground of default in payment of rent could have ever been made by the two Courts, considering the mandatory nature of the provisions contained in Section 12(2) of the Rent Act;

(E) The Appeal Court committed a serious error of jurisdiction or in any case has adopted a perverse approach by itself comparing the disputed signatures with the undisputed ones by invoking the provisions contained under Section 73 of the Indian Evidence Act, 1972. Again, well settled provisions of law in this regard came to be ignored. The approach is contrary to the las laid down by the Apex Court in the said matters; and

(F) The entire reasoning of the Appeal Court is completely clouded by three aspects. First, that leave to amend the written statement was incorrectly granted by the Trial Court and therefore, order dated 6 August 1990 was required to be upset in appeal, even though no cross objections had been filed by Hates; second, the examination of disputed signatures by the Appeal Court itself, by resort to the provisions contained in Section 73 of the Evidence Act; and third, the refusal to even advert to the report and deposition of the handwriting expert. For these reasons, a strong case is made out for at least setting aside the Appeal Court''s decision and remand the matter for fresh consideration by the Appeal Court in accordance with the settled legal provisions."

Mr. Godbole, the learned counsel for Hates submitted that the findings of fact recorded by the two Courts on the aspect of receipt of statutory notice and default are not vitiated by perversity. Further, although, the reference to Section 105 of the CPC by the Appeal Court in the context of upsetting order dated 6 August 1990 may not be appropriate, the exercise is relatable to the provisions contained in Order XLI Rule 33 of the CPC. The mere citing of the incorrect provision of law is not any jurisdictional error, particularly when it is established that a Court otherwise possesses sufficient powers to make the order, which it has made. Mr. Godbole submitted that no Court, by resort to the provisions contained in Order VI Rule 17 of the CPC can permit withdrawal of admissions, even assuming that such admissions are implied admissions or constructive admissions. Finally, Mr. Godbole submitted that even if the order dated 6 August 1990 was allowed to stand, there is overwhelming material on record, which establishes beyond any reasonable doubt that the statutory notice dated 30 October 1977 was indeed served upon Rajan Pancholi. For all these reasons, Mr. Godbole submitted that the petition be dismissed.

The rival contentions now fall for determination.

As noted at the outset, the main issue involved in this petition is whether the concurrent finding of fact with regard to service of statutory notice upon the petitioner warrants interference by this Court exercising extra ordinary jurisdiction under Article 227 of the Constitution of India. Accordingly, it is necessary to delineate parameters of judicial review, when it comes to interference with such findings of fact.

Under Article 227 of the Constitution of India this Court exercises power of superintendence. Power of superintendence is different and distinct from exercise of any appellate powers. Therefore, unless it is demonstrated that the findings of fact are vitiated by clear perversity or that they are manifestly incorrect and suffer from error apparent on face of record, there is hardly any scope for interference.

In the case of India Pipe Fitting Co. Vs. Fakruddin M.A. Baker and Another, AIR 1978 SC 45 : (1977) 4 SCC 587 : (1978) 1 SCR 797 : (1977) 9 UJ 742 , the Apex Court in the context of exercise of supervisory jurisdiction, observed thus:

"The limitation of the High Court while exercising power under Article 227 of the Constitution of India is well settled. Power under Article 227 is one of judicial superintendence and cannot be exercised to upset conclusions of facts howsoever erroneous those may be. It is well settled and perhaps to late in the day to refer to the decision of the Constitution Bench of this Court in Waryam Singh and Another Vs. Amarnath and Another, AIR 1954 SC 215 : (1954) 1 SCR 565 where the principles have been clearly laid down as follows:

"This power of superintendence conferred by Article 227 is, as pointed out by Harries, C. J., (in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee, AIR 1951 Cal 193 to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not in correcting mere errors."

In the case of Babhutmal Raichand Oswal vs. Laxmibai R. Tarte and Another, AIR 1975 1297 (SC), in the context of proceedings between landlord and tenant under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Apex Court, relying upon its previous decision on the same subject, observed thus:

"If error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of Certiorari it should follow a fortiori that is not subject to correction by the High Court in exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a Superior Court can do in exercise of its statutory power as Court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a Court of Appeal when the Legislature has not conferred a right of appeal and made the Subordinate Court or tribunate final on fact."

In the case of Ashok Kumar and Others Vs. Sita Ram, AIR 2001 SC 1692 : (2001) 5 JT 87 : (2001) 3 SCALE 443 : (2001) 4 SCC 478 : (2001) 3 SCR 101 : (2001) 2 UJ 1069 : (2001) AIRSCW 1749 : (2001) 3 Supreme 488 , the Apex Court in the context of scope of interference with the findings of fact recorded by the authorities under the Rent Act has observed thus:--

"The question that remains to be considered is whether the High Court in exercise of writ jurisdiction was justified in setting aside the order of the Appellate Authority. The order passed by the Appellate Authority did not suffer from any serious illegality, nor can it be said to have taken a view of the matter which no reasonable person was likely to take. In that view of the matter there was no justification for the High Court to interfere with the order in exercise of its writ jurisdiction. In a matter like the present case where order passed by the statutory authority vested with power to act quasi judicially is challenged before the High Court, the role of the Court is supervisory and corrective. In exercise of such jurisdiction the High Court is not expected to interfere with the final order passed by the Statutory Authority unless the order suffers from manifest error and if it is allowed to stand it would amount to perpetuation of grave justice. The Court should bear in mind that it is not acting as yet another appellate court in the matter. We are constrained to observe that in the present case the High Court has failed to keep the salutary principles in mind while deciding the case."

In the case of Helper Girdharbhai Vs. Saiyed Mohmad Mirasaheb Kadri and Others, AIR 1987 SC 1782 : (1987) 2 JT 599 : (1987) 1 SCALE 1235 : (1987) 3 SCC 538 : (1987) 3 SCR 289 , the Hon''ble Apex Court in the context of revisional powers under Section 29(2) of the Rent Act (as applicable to the State of Gujarat) has observed thus:

"16. We must take note of a decision in the case of Kasturbhai Ramchand Panchal and Brothers and Others Vs. Firm of Mohanlal Nathubhai and Others, AIR 1969 Guj 110 : (1968) GLR 729 , upon which the High Court had placed great reliance in the judgment under appeal. There the learned judge relying on S. 29(2) of the said Act held that the revisional power with which the High Court was vested under S. 29(2) was not merely in the nature of jurisdictional control. It extended to corrections of all errors which would make the decision contrary to law. The legislature, the learned Judge, felt, further empowered High Court in its revisional jurisdiction to pass such order with respect thereto as it thought fit. The power according to the learned Judge was of the widest amplitude to pass such orders as the Court thought fit in order to do complete justice. He dealt with the human problem under S. 13(2) of Bombay Rent Act considering the relative hardships of the landlord and the tenant and to arrive at a just solution he was of the opinion that the court should have such wide field. The jurisdiction of High Court is to correct all errors of law going to the root of the decision which would, in such cases, include even perverse findings of facts, perverse in the sense that no reasonable person, acting judicially and properly instructed in the relevant law could arrive at such a finding on the evidence on the record. In this view in our opinion the ambit of the power was expressed in rather wide amplitude. As we read the power, the High Court must ensure that the principles of law have been correctly borne in mind. Secondly, the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind. It must be such a decision which no reasonable man could have arrived at. Lastly, such a decision does not lead to a miscarriage of justice. We must, however, guard ourselves against permitting in the guise of revision substitution of one view where two views are possible and the Court of Small Causes has taken a particular view. If a possible view has been taken, the High Court would be exceeding its jurisdiction to substitute its own view with that of the courts below because it considers it to be a better view. The fact that the High Court would have taken a different view is wholly irrelevant. Judged by that standard, we are of the opinion that the High Court in this case had exceeded its jurisdiction."

Both, the Trial Court as well as the Appeal Court have recorded concurrent findings of fact that the statutory notice dated 30 October 1977 under Section 12(2) of the Rent Act was indeed served upon Rajan Pancholi. This finding of fact, is sufficiently borne out from the material on record. There is really no perversity as such in the record of this finding of fact. The Trial Court has proceeded on the basis that Rajan Pancholi in his written statement, had denied the factum of receipt of statutory notice. The Appeal Court has based its finding upon an additional circumstance, namely, that there was an admission by way of non traverse as to the receipt of statutory notice dated 30 October 1977. For this purpose, the Appeal Court has virtually set aside the order dated 6 August 1990, by which the Trial Court had permitted Pancholi to amend the written statement and taken up the plea that the statutory notice dated 30 October 1977 had not been received by him. The submission of Mr. Dhakephalkar that this is the sole basis upon which the Appeal Court has proceeded. This submission is not correct. The Appeal Court has only considered this aspect, as an additional circumstance or one of the circumstances, to confirm the Trial Court''s findings as regards service of statutory notice upon Rajan Pancholi.

Even if, order dated 6 August 1990 and amendment to the written statement in pursuance thereof is left untouched, there is sufficient material on record to sustain the finding of fact recorded by the two Courts concurrently. As noted earlier, it is not for this Court, in the exercise of jurisdiction under Article 227 of the Constitution of India, to re-appreciate the material on record, as if it were exercising any appellate jurisdiction. Therefore, reference to material, is mainly to establish that there is no perversity involved in the record of concurrent findings of fact by the two Courts.

The two Courts, have accepted the testimony of Vijaykumar Hate, son and power of attorney of Tarabai Hate who has stated on oath that he did personally deliver the statutory notice dated 30 October 1977 to Rajan Pancholi on 31 October 1977 and obtained Pancholi''s signature to endorse receipt. The two Courts, upon such basis, have held that the testimony stands unshaken and can be relied upon to establish receipt of statutory notice by Rajan Pancholi.

Mr. Dhakephalkar has however contended that since there were no pleadings to the effect that Vijaykumar Hate had personally delivered the statutory notice upon Rajan Pancholi on 31 October 1977 and obtained his signature in endorsement of receipt thereon, the testimony of Vijaykumar Hate, travels beyond the pleadings and therefore was required to be ignored. It is not possible to accept this contention, particularly, if reference is made to the pleadings of both the parties and the provisions contained in Order VI Rule 2 of the CPC.

Tarabai Hate, in paragraph 3 of the plaint had made the following averment in the context of service of statutory notice upon Rajan Pancholi :

"3. The Plaintiff says that by her own notice to quit dated 30.10.1977 addressed to the defendant, she, inter alia, terminated the tenancy of the defendant and called upon him to quit and vacate the suit premises as also to pay to her the arrears of rent then due and payable by him to her. A copy of the said notice is hereto annexed and marked Exhibit "A". The Plaintiff says that the defendant failed and neglected to comply with the requisitions made in the said notice, Exhibit ''A'' hereto, though the same was duly served upon the defendant."

[emphasis supplied]

Rajan Pancholi, in his written statement filed on 9 July 1979 (unamended) submitted the following response to the aforesaid averment in paragraph 3 of the plaint:

"2. With reference to para 3 of the plaint, the Defendant denies that by her own notice dated 30th October 1977 or any other notice the plaintiff terminated the tenancy of the defendant."

From the aforesaid, it is clear that Tarabai Hate in her plaint, had clearly pleaded that the statutory notice dated 30 October 1977 had been duly served upon the defendant Rajan Pancholi. Order VI Rule 2 of the CPC provides that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. In the present case, the material fact which was required to be pleaded in the plaint was that the statutory notice dated 30 October 1977 was indeed served upon the tenant Rajan Pancholi. Such pleading, is clearly contained in paragraph 3 of the plaint, wherein a categoric statement is made that the statutory notice was duly served upon the defendant. The manner of service, which would include personal service, really falls within the realm of evidence by which the material fact was required to be proved. Consequently, there was no requirement under Order VI Rule 2 of CPC as set out in the plaint that the statutory notice dated 30 October 1977 was delivered personally by Vijaykumar Hate to Rajan Pancholi on 31 October 1977.

That apart, even at the stage when Vijaykumar Hate deposed to the factum of service of statutory notice upon Rajan Pancholi on 31 October 1977, no objection was raised by Pancholis to the effect that such deposition is de hors the pleadings or that such deposition travels beyond the pleadings. If indeed, the Pancholis were serious about their contention that the pleadings in paragraph 3 of the plaint were either vague or insufficient, Pancholis had several options. They could have applied for better particulars under the provisions of Order VI Rule 5 of the CPC, as they then applied. They could have raised grievance in the written statement regards lack of particulars or vagueness. Finally, they could have at least objected to the deposition of Vijaykumar Hate on the aspect of manner of service of the statutory notice. None of these options, though available were availed by Pancholis. Significantly, even in the memo of appeal No. 133 of 1993 there is no specific ground that any evidence which travelled beyond the pleadings was illegally let in by the Trial Court or taken into consideration by the Trial Court. There is only a vague ground that the Trial judge erred in accepting the evidence of Vijaykumar Hate that he had served a notice dated 30 October 1977 and that the signature on the copy is that of Rajan Pancholi. Even in the memo of writ petition, no contention has been raised that the pleadings in the plaint were either vague or lacked particulars and that evidence which travelled beyond the pleadings was let in or taken into consideration. Accordingly, there is no merit in the contention of Mr. Dhakephalkar.

The Pancholis, in their written statement filed on 9 July 1979, were content with an evasive denial in paragraph ''2'' of the written statement. The provisions contained in Order VIII Rule 3 of the Code of Civil Procedure, 1908 (CPC) provide that it shall not be sufficient for defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. Further Order VIII Rule 4 of the CPC provides that where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that some or any part thereof, or else set out how much he received. And if an allegation made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances. The provisions of Order VIII Rule 5 of the CPC provide that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except against a person under disability. The proviso provides that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. In exercising discretion under the proviso to sub-rule (1) of Order VIII Rule 5 of the CPC, the Court shall have due regard of the fact where the defendant could have or has engaged a pleader.

Tarabai Hate, in paragraph ''3'' of the plaint, had pleaded that the material fact regards service of statutory notice dated 30 October 1977 upon Rajan Pancholi. In contrast, the response of Rajan Pancholi in the written statement filed on 9 July 1979 (unamended) was indeed evasive and did constitute an admission by way of non-traverse. In case of Lohia Properties (P) Ltd., Tinsukia, Dibrugarh, Assam Vs. Atmaram Kumar, (1993) 5 JT 223 : (1993) 3 SCALE 453 : (1993) 4 SCC 6 , the plaintiff in para ''7'' of the plaint had made a categorical averment with regard to the service of statutory notice upon the tenant. The tenant, in para ''5'' of the written statement, responded by merely stating, ''that the notice of ejectment as regard to in paragraph 7 of the plaint is not according to law''. The Apex Court, by reference to the provisions contained in Order VIII Rule 5 of CPC held that such response clearly amounted to an implied admission by way of non-traverse. The written statement was ultimately amended pursuant to leave granted by the Trial Court on 6 August 1990, in order to take a specific plea regards non service of statutory notice. However, it is quite clear that Pancholis had no grievance as such with regard to any lack of particulars in the plaint or that they were taken by surprise with the contention regards service of statutory notice upon Rajan Pancholi.

Apart from, the deposition of Vijaykumar Hate, there is other material on record sufficient to sustain the concurrent findings of fact as regards service of statutory notice upon Rajan Pancholi. After the evidence of Vijaykumar Hate, Rajan Pancholi examined himself and one Mr. Khare, in whose presence letters dated 28 October 1977 and 12 December 1977 were alleged to have been delivered to Tarabai Hate personally. After the conclusion of such evidence, and in view of denial by Rajan Pancholi that the signature against endorsement of receipt on statutory notice dated 30 October 1977 was his and the denial by Tarabai Hate that the signature upon the endorsement of receipt on letters dated 28 October 1977 and 12 December 1977 were hers, the disputed signatures were referred for examination to Salim Mohamed Khan (Government Handwriting Expert). This expert, submitted a report opining that the signature on statutory notice dated 30 October 1977 was a of Rajan Pancholi and the signatures on the letters dated 28 October 1977 and 12 December 1977 were not of Tarabai Hate. Such expert deposed in the proceedings and defended his report and opinion expressed therein. The expert who was extensively cross-examined by Pancholis, stuck to his ground. The two Courts, have held that the Pancholis were unable to make any dent to the testimony of the expert. The submission that the two Courts have not considered the report and testimony of the expert, is not correct. It is true that the Appeal Court, at several places in its judgment and decree noted that it did not want to be a slave to the opinion expressed by the expert. However, such expression, was in the context of the Appeal Court realising that the opinion of the Handwriting Expert can never be made sole basis for deciding that the signature on the statutory notice dated 30 October 1977, was indeed signature of Rajan Pancholi endorsing receipt. Further, it must be noted that the Appeal Court, in the present case, has affirmed the finding of fact recorded by the Trial Court. Perusal of the Appeal Court''s judgment would indicate that it has reexamined the finding of fact recorded by the Trial Court and thereafter affirmed such finding of fact. There is, accordingly, no merit in the submission that the report and testimony of the Handwriting Expert, which in any case, has expressed opinion against the Pancholis, was not properly appreciated by the two Courts. The report of the Handwriting Expert and his testimony is, therefore, additional material to sustain the findings of fact recorded by the two Courts concurrently.

The Pancholis, in order to establish that the statutory notice dated 30 October 1977 was not duly served upon Rajan Pancholi, attempted to introduce in evidence two letters dated 28 October 1977 and 12 December 1977. The letter dated 28 October 1977, was stated to have been addressed by Rajan Pancholi to Tarabai Hate and further, the same was stated to have been personally served by Rajan Pancholi upon Tarabai Hate in presence of Mr. Khare. The Pancholi also asserted that the signatures against the endorsement of receipt thereon was that of Tarabai Hate. The letter dated 28 October 1977 alleges that Hate, in the past eight months, has refused to accept rents amounting to Rs. 1400/- and that such refusal is with ulterior motive. The letter concludes with the statement that arrears would be remitted by money order shortly.

On basis of the two letters, Pancholis desire to establish that they were always ready and willing to pay the rents or the arrears of rent and if the statutory notice dated 30 October 1977 had indeed been served upon Rajan Pancholi on 31 October 1977, then Rajan Pancholi would have certainly cleared the arrears of rent without any further ado. The two Courts, however, upon analysing the evidence of Rajan Pancholi and Mr. Khare have disbelieved them on the aspect of service of letters dated 28 October 1977 and 12 December 1977 upon Tarabai Hate. Further, the two Courts have taken into consideration the deposition as well as report of the Handwriting Expert to the effect of signature against the receipt of endorsement upon the letters dated 28 October 1977 and 12 December 1977 are not of Tarabai Hate. There is really no perversity in the concurrent record of such finding of fact.

The Pancholis had relied upon the two letters dated 28 October 1977 and 12 December 1977, in order to create an impression that Rajan Pancholi was always eager to clear the arrears of rent. The two letters were also relied upon to create an impression that in case statutory notice dated 30 October 1977 had been really served upon the Ranjan Pancholi, the arrears of rent would have been cleared within prescribed period. But for this, the Pancholis had to establish that the two letters dated 28 October 1977 and 12 December 1977 were indeed served upon Tarabai Hate. In the absence of proof of service upon Tarabai Hate, the two letters remain some self serving documents entitling them to little or no evidentiary value. On the basis of oral testimony of Rajan Pancholi and Mr. Khare, the two Courts have disbelieved the service of two letters upon Tarabi Hate. The Handwriting Expert, in his report as well as deposition has stated that the signatures against the endorsement of receipt are not of Tarabai Hate. Accordingly, the service of two letters upon Tarabai Hate has not been proved.

If, the letters dated 28 October 1977 and 12 December 1977 had genuinely been addressed and served upon Tarabai Hate on or soon after dates indicated thereon, then it is reasonable to expect that Rajan Pancholi would have followed this with despatch of the arrears of rent. In fact, the letter dated 20 October 1977 concludes with the statement that arrears would be remitted by money orders shortly. Similarly, the letter dated 12 December 1977 was in response to the letter dated 10 December 1977 addressed by Tarabai Hate to Rajan Pancholi. The receipt of letter dated 10 December 1977 from Tarabai Hate is admitted by Rajan Pancholi. The letter dated 10 December 1977 makes reference to statutory notice dated 30 October 1977. Despite all this, Rajan Pancholi did not remit the arrears of rent either by money order or any other mode. The suit was ultimately instituted on 4 July 1978. The interregnum between 28 October 1977 or 12 December 1977 and 4 July 1978 was considerable. At least, during the said period, if Rajan Pancholi had remitted the arrears of rent, something could have been said with regard to the two letters dated 28 October 1977 and 12 December 1977. Besides, the two letters were not even referred to in the written statement filed by Rajan Pancholi. All this, makes it clear that attempt on the part of Pancholis to introduce the two letters in the evidence was unsuccessful. There is accordingly, no perversity in the finding of fact recorded by the two Courts.

There is yet another significant circumstance. After the conclusion of evidence of Salim Mohamed Khan (Government Handwriting Expert), the Pancholis took out an interim notice No. 563 of 1993 before the Trial Court, seeking leave to refer the disputed signatures for examination by another Expert of their choice. Such application was granted by the Trial Court by its order dated 24 February 1993. Necessary assistance was rendered to Anil Mathur, Forensic Examiner of Questioned Documents, engaged by Pancholis for the purpose of expression opinion upon the disputed signatures and challenging the opinion tendered by Salim Mohamed Khan (Government Handwriting Expert). Anil Mathur submitted a report on 10 March 1993 opining that he was unable to give any definite opinion as to genuineness or otherwise of the signature of Rajan Pancholi on the notice dated 30 October 1977 and of Tarabai Hate on the letters dated 28 October 1977 and 12 December 1977 against the endorsement of receipts. Despite opportunity, Pancholis chose not to examine Anil Mathur as the witness in the proceedings before the Trial Court at least for the purposes of countering the report and deposition of Salim Mohamed Khan (Government Handwriting Expert). The two Courts have rightly taken into consideration this vital circumstance and drawn adverse inference against Pancholis.

From the aforesaid, it is clear that even if the Appeal Court were not to set aside the order dated 6 August 1990, on the basis of material on record, no case is made out to interfere with the concurrent findings of fact. The Trial Court, which had granted leave to amend by order dated 6 August 1990 had proceeded on the basis that Rajan Pancholi had denied the receipt of statutory notice. The discussion and analysis by the Appeal Court would indicate that such finding of fact has been affirmed by the Appeal Court. However, the Appeal Court, has relied upon an additional circumstance namely that there was no justification to grant leave to amend the written statement, as such leave would take away the implied admission of service of statutory notice by way of non- transverse. Even if this exercise of Appeal Court, which is, in the facts and circumstance of the present case, severable, is excluded from consideration, the material on record, nevertheless justifies the record of finding of fact by the Trial Court on the aspect of service of statutory notice. Accordingly, there is really no necessity to advert to the issue as to whether the Appeal Court was right in setting aside the order dated 6 August 1990, by which, Rajan Pancholi was granted leave to amend the written statement after eleven years and take up a categorical plea of non-service of statutory notice. Mr. Dhakephalkar is, however, right that such power could not have been exercised by the Appeal Court by resort to the provisions contained in Section 105 of the CPC. At the highest, such power is relatable to Order XLI Rule 33 of the CPC. However, as noted earlier, there is no necessity to decide this issue because even if we proceed on the basis that there was no implied admission that Rajan Pancholi regards service of statutory notice, there is other material on record, sufficient to bear the concurrent finding of fact recorded by the two Courts. There is accordingly, no case made out to interfere with such concurrent finding of fact in exercise of powers under Article 227 of the Constitution of India.

Mr. Dhakephalkar, however, submitted that the Handwriting Expert''s function is only to opine after a scientific comparison of a disputed writing with the admitted writing with regard to points of similarity and dissimilarity in the two sets of writing. Ultimately, it is for the Court to examine the material placed by the expert on record together with the reasons which induced him to come to the opinion which he has expressed in his Report. Mr. Dhakephalkar also submitted that the science of identification of handwriting by comparison is not an infallible one, prudence demands that before acting on such opinion the Court should be fully satisfied about the authorship of the admitted writings which is made the sole basis for comparison and the Court should also be fully satisfied about the competence and credibility of the Handwriting Expert. Further, the decision should normally not be based only upon the testimony of Handwriting Expert, unless such testimony is corroborated by other legally admissible evidence, no final decision should be based upon the same. In support of such submission, Mr. Dhakephalkar placed reliance upon the decisions of the Hon''ble Apex Court in case of The State (Delhi Administration) Vs. Pali Ram, AIR 1979 SC 14 : (1979) CriLJ 17 : (1979) 2 SCC 158 : (1979) SCC(Cri) 389 : (1979) 1 SCR 931 , Ajit Savant Majagavi Vs. State of Karnataka, AIR 1997 SC 3255 : (1997) CriLJ 3964 : (1997) 3 Crimes 204 : (1997) 7 JT 414 : (1997) 5 SCALE 496 : (1997) 7 SCC 110 : (1997) 3 SCR 444 Supp : (1997) AIRSCW 3315 : (1997) 7 Supreme 370 , State of Maharashtra Vs. Sukhdeo Singh and another Vs. State of Maharashtra Through C.B.I. Vs. Sukhdev Singh alias Sukha and others, AIR 1992 SC 2100 : (1992) CriLJ 3454 : (1992) 3 Crimes 5 : (1992) 4 JT 73 : (1992) 2 SCALE 9 : (1992) 3 SCC 700 : (1992) 3 SCR 480 and O. Bharatan Vs. K. Sudhakaran and another, AIR 1996 SC 1140 : (1996) 2 JT 384 : (1996) 1 SCALE 688 : (1996) 2 SCC 704 : (1996) 1 UJ 307 .

In this case, the two Courts have relied upon the opinion of the Handwriting Expert, but it cannot be said that the decision of the two Courts is based solely upon the opinion or the testimony of the Handwriting Expert. The opinion and the testimony of the Handwriting Expert is merely one of the circumstance taken into consideration by the two Courts for recording the finding of fact that the statutory notice dated 30 October 1977 was indeed served upon Rajan Pancholi. The criticism that the two Courts have not adverted to reasons which induced Handwriting Expert to record his opinion in the matter is also not justified. The Trial Court has made reference to the report and reasons contained therein. The Trial Court has also made reference to the testimony of the expert which includes not merely examination in chief, but also the cross-examination. Significantly, the two Courts have taken into consideration the circumstance that ample opportunity was offered to the Pancholis to demolish or discredit the testimony and report of the Handwriting Expert. The Pancholis were specifically granted opportunity to forward the disputed signatures to some expert of their choice. The Pancholis did avail of such opportunity. However, since the expert of their choice furnished an inconclusive opinion, the Pancholis did not examine him. The Pancholis could have at least examined said expert to establish that the material was not sufficient to express any conclusive opinion. Even this opportunity, the Pancholi failed to avail. All these circumstances, were rightly considered by the two Courts and there is no infraction of law laid down by the Hon''ble Apex Court in the decision upon which reliance was placed by Mr. Dhakephalkar.

Mr. Dhakephalkar also criticized the approach of the Appeal Court in its comparing the disputed signatures in exercise of powers conferred by Section 73 of the Evidence Act. Mr. Dhakephalkar submitted that although such power exists, as a matter of prudence and caution, no Judge should base its finding on the basis of such exercise. Again reliance was placed upon the decision of the Hon''ble Apex Court in case of Pali Ram (supra), Ajit Majagvai (supra) and O. Bharathan (supra).

The Trial Court, did not undertake the exercise permitted under Section 73 of the Evidence Act. The Appeal Court did undertake such exercise. However, perusal of the impugned appellate order makes it clear that the Appeal Court has not based its finding solely upon the results of such an exercise. The Appeal Court has only considered the results of such an exercise as one of the circumstances for returning the finding that the statutory notice dated 30 October 1977 was indeed served upon Rajan Pancholi. Accordingly, there is no reason to upset such finding of fact in the exercise of jurisdiction under Article 227 of the Constitution of India.

In any case, even if result of exercise undertaken by the Appeal court under Section 73 of the Evidence Act excluded from consideration, there is sufficient material on record to sustain the finding that the statutory notice dated 30 October 1977 was indeed served upon Rajan Pancholi. The findings of fact recorded by the two Courts, therefore, do not suffer from any perversity.

There is no basis to accept the contention of Mr. Dhakephalkar that the Appellate Court''s judgment is vitiated because undue emphasis was laid upon implied admission in pleadings, comparison of signatures by the Appeal Court under Section 73 of the Evidence Act and the refusal of advert to the report and deposition of Handwriting Expert. The implied admission in pleadings was only one of the circumstances taken into consideration by the Appeal Court. The Trial Court had proceeded on the basis that there was denial in the pleadings as to the receipt of statutory notice. The Appeal Court has considered the circumstance that the plea of non-receipt of statutory notice was not raised by Rajan Pancholi at the earliest instance. The suit was instituted on 4 July 1978. Rajan Pancholi filed written statement on 9 July 1979, in such written statement there was no specific denial as regards the receipt of statutory notice. The specific denial surfaced only eleven years later, i.e., on 6 August 1990, when the statement was amended on 6 August 1990. In any case, even on the basis that the Pancholis had denied the receipt of statutory notice, the material on record is sufficient to establish that such statutory notice had indeed been served upon Rajan Pancholi. Same is the position with regard to the exercise undertaken by the Appeal Court in terms of Section 73 of the Evidence Act. In the first place, the results of such exercise were considered only for the purpose of corroboration. Secondly, even if the results of such exercise are excluded from consideration, there is other and sufficient material to sustain the concurrent findings of fact recorded by the two Courts.

Although, the Appeal Court has at places observed that it does not wish to be a slave to the opinion expressed by the Handwriting Expert, that is far cry from saying that the Appeal Court has ignored the opinion and deposition of the Handwriting Expert. Both the Trial Court as well as Appeal Court have no doubt, taken such opinion and deposition into consideration. In case of Pali Ram (supra), upon which reliance was placed by Mr. Dhakephalkar, the Apex Court has held that though it is not advisable that a Judge should take upon himself the task of comparing the admitted handwriting with the disputed one to find out whether the two agree with each other, the prudent course in such a matter is to obtain assistance of an expert. Further, the Court, after taking into consideration the Handwriting Expert''s report, should compare the handwriting with its own eyes for proper assessment of the value of total evidence. Further it is held that ordinarily, it is not proper for the Court to require the expert to give his finding on the issue, whether of law or fact, because strictly speaking, such issues are for the Court to determine. The Appeal Court, in the present case, has acted substantially consistent with such observations of the Hon''ble Apex Court. Accordingly, it cannot be said that the approach of the Appeal Court is vitiated by perversity.

Therefore, upon cumulative consideration of all the aforesaid facts and circumstances, there is no case made out to interfere with the concurrent findings of fact recorded by the two Courts. There is no dispute whatsoever that the rents were in arrears for a period of eight months prior to the institution of the suit. In fact, no attempt was even made to dispute this position, which is even otherwise amply borne from the material on record. The defence that Pancholis spent an amount of Rs. 600/- towards obtaining new water connection and that there was some oral agreement between the parties for adjustment of the said amount towards the rent, was vaguely raised but never pursued or established by Pancholis. Same is the position with regard to the defence that rents were offered several times, but were not accepted by Tarabai Hate. Section 12(3) of the Rent Act provides that no decree for eviction on the ground of default in payment of rent shall be made, if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent, permitted increases alongwith interest at the prescribed rate and thereafter continues to pay or tenders in Court such rent till the suit is finally decided and also pays costs of the suit as directed by the Court. Even this statutory opportunity was never availed by the Pancholis. In these circumstances, the decree of eviction on the ground of default in the payment of arrears of rent was, therefore, rightly made.

The petition is dismissed. Rule is discharged. The interim relief stands vacated. There shall, however, be no order as to costs.

At this stage, Mr. N.C. Parekh, learned counsel for the petitioners seeks a restraint upon the execution of eviction decree for a period of eight weeks from today, as the petitioners seek to take recourse against this judgment and order before the Hon''ble Apex Court. The request is reasonable. Accordingly, the eviction decree shall not be executed for a period of eight weeks from today. This shall, however, be subject to the petitioners filing the usual Undertaking before this Court within a period of two weeks from today.