Sujit Kumar Khan vs Susanta Kumar Khan

Deficit court fees of Rs. 60/- which was put in by the appellant out of time, is acceptable.

Leave is granted to the learned advocate-on-record of the appellant to rectify the defect in the memorandum of appeal in terms of the report of the Stamp Reporter.

This appeal will be heard on the following substantial question of law. Whether the learned First Appellate Court was justified in admitting the title deed of the plaintiff by way of additional evidence at the appellate stage without following the provision contained in Order 41 Rule 28 of the Code of Civil Procedure or not?

Immediately after the appeal was admitted for hearing, when the application for injunction filed in connection with the said appeal, was taken up for hearing, we were requested by the learned counsel appearing for the respondent to dispose of the appeal itself on merit on the basis of the papers available before us.

Since the fate of the appeal is dependent on the decision of this Court on a pure question of law, we have decided to dispose of the appeal on the basis of the papers available before us by dispensing with the requirement of filing paper books in this appeal.

Here is the case where we find that the parties are two brothers. The plaintiff being the brother of the defendant filed a suit for eviction of the defendant from the suit shop room after service of notice under Section 106 of the Transfer of Property Act.

The defendant contested the said suit by filing a written statement denying the allegations made out by the plaintiff in the plaint. He stated that the parties are two brothers and their father used to carry on radio repairing business from the suit shop room. According to the defendant, on the death of their father, both the brothers jointly inherited the said suit shop room. He thus, disputed the existence of relationship of landlord and tenant between them. He prayed for dismissal of the suit on the ground that he being a co-sharer of the suit property cannot be evicted by the plaintiff upon service of notice under Section 106 of the Transfer of Property Act.

Parties led evidence in support of their respective claims. The learned Trial Judge after considering the pleadings of the parities as well as their evidence, was pleased to dismiss the said suit by holding, inter alia, that in a suit where the tenant having not been inducted by the landlord, the tenant can challenge the title of the person claiming to be his landlord. The learned Trial Judge also held that when the defendant has challenged the title of the plaintiff being not his inducting landlord in respect of the suit property, the plaintiff can not get a decree for eviction until he proves his title in the suit property.

Since the plaintiff was unable to prove his title in respect of the suit property, the learned Trial Judge refused to pass a decree for eviction in favour of the plaintiff in the said suit.

Being aggrieved by and dissatisfied with the said judgment and decree of the learned Trial Judge, the plaintiff filed an appeal before the learned First Appellate Court.

In course of hearing of the said appeal, the plaintiff filed an application under Order 41 Rule 27 of the Code of Civil Procedure for adducing further evidence in the said suit. As a matter of fact, he prayed for permission to prove his title deeds in respect of the suit property by way of additional evidence. The learned Trial Judge was pleased to allow the appellant's prayer for adducing further evidence in the appeal.

However, we find from the impugned order that while allowing the appellant's such prayer, the learned appellate court has also admitted those title deeds by way of additional evidence without these deeds being formally proved in the light of the provision contained in Order 41 Rule 28 read with Order 41 Rule 29 of the Code of Civil Procedure.

The learned first appellate court however, was of the view that since the rent receipts were produced by the plaintiff and the counter part of those receipts were signed by the defendant, the relationship of landlord and tenant between the parties was established. The learned first appellate court thus, held that when relationship between the parties was established, the court cannot refuse to pass any decree for eviction when service of notice under Section 106 of the Transfer of Property Act is found to be legal, valid and sufficient. Since the learned first appellate court found that the notice under Section 106 of the Transfer of Property Act was duly served upon the defendant and the said notice was legal, valid and sufficient, the learned first appellate court passed the decree for eviction.

On perusal of the impugned judgement passed by the learned first appellate court, we find that the learned first appellate court instead of resolving the dispute as to the genuineness of the signature of the defendant appearing on the counter part of the rent receipt, made an effort to come to the conclusion about the genuineness of the said document by applying the provision contained in Section 73 of the Evidence Act. But while doing so the learned first appellate court found that though the signature of the defendant tallies with the signature of the defendant appearing in the vakalatnama filed by him but the signature of the defendant appearing in the vakalatnama does not tally with his signature in the deposition recording sheet.

When a dispute of such nature was raised before the learned first appellate court which requires to be resolved by the handwriting expert, it was desirable that instead of applying Section 73 of the Evidence Act, the Court should have referred the disputed signature of the defendant along with his admitted signature to the handwriting expert for his opinion. The Court is no doubt is an experts of all expert but when a science is involved for resolution of such dispute in which the court has no specialised knowledge, it is always desirable, that the court should exercise its wisdom after looking at the problem through the eyes of the expert on the subject.

Under such circumstances, we hold that the learned first appellate court was not justified in comparing the disputed signature of the defendant with the other signature of the defendant appearing in the vakalatnama by exercising its jurisdiction under Section 73 of the Evidence Act in the facts of the present case.

We thus, set aside the judgement and decree passed by the learned first appellate court without, however, disturbing that part of the order by which the appellant's prayer for adducing additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was allowed.

Accordingly, we send the appeal back to the learned first appellate court on remand for reconsideration of the appeal afresh in the light of the observations made hereinabove with a further direction that before receiving the title deeds of the appellant into evidence, the learned first appellate court will have to follow the provisions contained in Order 41 Rule 28 and 29 of the Code of Civil Procedure.

The appeal court will thereafter dispose of the appeal afresh on the basis of the evidence already on record as well as the evidence which may be adduced as per the permission granted by the learned appellate court to the appellant under Order 41 Rule 27 of the Code of Civil Procedure, as early as possible without granting any unnecessary adjournment to any of the parties.

The appeal is thus, disposed of.

In view of the disposal of the appeal in the manner as aforesaid, the execution which has already been levied, should be dropped.

The application for injunction being CAN 6975 of 2016 is thus, deemed to be disposed of.

Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.