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Judgment
A.V. Chandrashekara, J.—The defendants have challenged the judgment and decree passed in R.A. NO. 14/06. Learned District Judge, Davanagere, has allowed the appeal filed in R.A. No. 14/06 and has directed the appellants herein to pay Rs. 68,700/- being arrears of rent along with interest at 6% per annum from the date of filing of the suit in O.S. No. 198/2001 till realization.
The respondent is the sole plaintiff in an original suit bearing O.S. No. 198/2001 which was pending on the file of II Additional Senior Civil Judge, Davanagere. The parties will be referred to as plaintiff and defendants as per their rankings before the trial Court.
The respondent had filed a suit for ejectment and for recovery of Rs. 68,700/- being arrears of rent with interest at the rate of 24% per annum from the date of filing of the suit till realization. The suit schedule property is a Dalal Godown bearing No. 1 approximately measuring East to West 20 feet and North to South 50 feet situated at MPMC Yard, Davanagere. Suit came to be filed against Gowdara Palakshappa, Proprietor of M/s. Vijayalaxmi Trading Company. During the pendency of the suit defendant died and his legal representatives were brought on record. Even after issuing summons, his legal representatives did not appear. Hence the Court had appointed Smt. K.S. Jyothi, Advocate as Court guardian in respect of minor defendants 1(B) to 1(D) by allowing I.A. II filed by the plaintiff.
The said suit was resisted by the Court guardian representing the minor defendants inter alia contending amongst other grounds that though there was relationship of landlord and tenant between the plaintiff and the defendants, the defendants were not in arrears of rent.
With these pleadings, they had requested the Court to dismiss the suit. On the basis of the above pleadings, following issues came to be framed:
Whether the plaintiff proves that, the defendant No. 1 is agreed to pay the rent at the rate of Rs. 1350/- per month?
Whether the plaintiff proves that, the rate of rent was enhanced from 1350/- to 1500/- from April-1999 onwards?
Whether the plaintiff proves that, defendant is due of arrears of rent from June 1997?
Whether the plaintiff is entitled for reliefs as prayed for?
What order or decree?
One Shivappa D.S. representing the plaintiff came to be examined as PW1 and got marked four documents as Ex. P1 and Exs. P1(a) to P1(c). No evidence had been adduced on behalf of the defendants. Ultimately, suit came to be decreed in part directing the defendants to vacate and hand over the vacant possession of the schedule property within two months from the date of judgment i.e., within two months from 23.11.2005. The relief for recovery of arrears of rent of RS. 68,700/- was rejected.
Being aggrieved by the rejection of their relief for recovery of Rs. 68,700/-, plaintiff chose to file an appeal before the District Court at Davanagere, under Section 96 of CPC in R.A. No. 14/2006. Several grounds had been urged in the said appeal and ultimately appeal came to be allowed on 08.01.2007 and the appellants were directed to pay a sum of Rs. 68,700/- with interest at 6% p.a. from the date of filing of suit till realization along with interest. It is this judgment in R.A. No. 14/2006 which is called in question on various grounds as set out in the appeal memo.
After hearing the learned counsel for the appellants, matter has been admitted and the following substantial questions of law have been framed by this Court on 19.08.2009:
Whether the judgment of the lower appellate Court that the defendants are in arrears of rent on the basis of a monthly rent of Rs. 1,500/- is not supported by any evidence as such it is without any basis?
Whether the lower appellate Court is justified in decreeing the suit of the respondent-plaintiff for arrears of rent only on the basis of legal notice Ex. P1 which has not been replied by the original defendant?
Whether the lower appellate Court is justified in holding that the monthly rent of the premises was Rs. 1,500/- only on the basis of Ex. P1 though no documentary evidence had been produced to establish the monthly rent of the premises?
Learned counsel for the appellants has submitted his arguments at length assailing the judgment of the First Appellate Court. It is argued that the First Appellate Court has adopted a wrong approach to the real state of affairs and that it has not at all considered the evidence in right perspective It is argued that the learned Judge of the First Appellate Court has placed heavy reliance upon Ex. P1, the legal notice, which is not substantiated by cogent evidence. It is argued that there could not have been any decree for payment of arrears of rent without producing any acceptable or cogent material evidence. It is argued that the First Appellate Court has adopted a wrong approach to the real state of affairs and that re-assessment of evidence has not been done on the touch stone of intrinsic probabilities.
All the four substantial questions of law framed by this Court on 19.08.2009 are virtually inter related. The defendants against whom a decree for eviction has been passed did not choose to challenge the said judgment passed against them for eviction. Plaintiff, being aggrieved by the rejection of the relief of recovery of arrears of rent, chose to file an appeal under Section 96 CPC. Even in the first appeal filed under Section 96 of CPC, defendants did not choose to either file a cross-objection under Order 41 Rule 22 of CPC or a regular appeal under Section 96 of CPC. Having not done so, the defendants cannot turn round and say at this stage that the judgment and decree passed for eviction against them is not maintainable either on law or on facts. It is to be seen that the defendants had remained exparte and they had been suitably represented by a Court guardian on being appointed by the Trial Court.
In the First Appellate Court, one Advocate had represented the defendants. It is true that no separate document is available in regard to the actual rent stated to have been paid by the deceased-first defendant to the plaintiff or agreed to be paid by the deceased-first defendant to the plaintiff. Anyhow, Ex. P1 is a notice got issued by the plaintiff calling upon the deceased-first defendant to handover the vacant possession of the schedule premises along with the arrears of rent at the rate of Rs. 1,500/- p.m. Under Ex. P1, tenancy had been terminated and therefore, suit was filed for eviction of the tenant. What is observed by the First Appellate Court is that if there was no relationship of landlord and tenant between the plaintiff and deceased-first defendant, question of payment of rent would not have arisen.
When the jural relationship of landlord and tenant has been established by the plaintiff and the same has been accepted by the Trial Court, it necessarily goes to show that the deceased-first defendant had agreed to pay initially rent at the rate of Rs. 1,350/- p.m. and later on at Rs. 1,500/- p.m. Admittedly, the schedule property is a godown and it was taken on lease by the deceased-first defendant as the Proprietor of trading unit called "Vijayalakshmi Trading Company". Non-replying of the said notice has been taken into consideration while decreeing the suit in R.A. No. 14/2006. The learned Judge of the First Appellate Court has re-assessed the entire evidence on the touchstone of intrinsic probabilities. It is to be seen that the Trial Court has rejected the relief of recovery of arrears of rent without assigning any proper reasons.
In paragraph-14 it is observed by the Trial Court that the suit of the plaintiff is decreed in part and suit is dismissed in respect of the recovery of rent of Rs. 68,700/- Though there is no separate documentary evidence to substantiate the agreed rent of Rs. 1,500/- p.m., non-replying of the said notice got issued through Ex. P1 has been taken as one of the important aspects while re-assessing the evidence by the First Appellate Court.
The evidence of PW1 Shivappa D.S., has remained unchallenged. The unrebutted evidence of PW1 coupled with the non-reply to Ex. P1 is considered as a strong ground to come to the conclusion that the rent was fixed at the rate of Rs. 1,500/- p.m. In fact, in the cross-examination, it was suggested to PW1 that no rent was paid at the rate of Rs. 1,350/- p.m. and the said suggestion has been denied. In fact, in Ex. P1, it is specifically mentioned that the earlier rate of rent was Rs. 1,350/- p.m. and that was enhanced to Rs. 1,500/- p.m. subsequently. The notice got issued vide Ex. P1 was through registered post and the same had been acknowledged by the deceased-first defendant.
What is observed by the First Appellate Court is that if really the rate of rent was not Rs. 1,350/- p.m. and it was enhanced to Rs. 1,500/- p.m. from 01.04.1999, the same could have been denied. Just because certain suggestions have been put to PWs. 1 and 2 that rent was not paid @ Rs. 1,350/- p.m. and it was enhanced to Rs. 1,500/- p.m. respectively, they will not have any significance more particularly, when such suggestions have been denied. If really the rent had been paid, nothing came in the way of the defendants to have produced documents to that effect.
What is observed by the First Appellate Court is that initial burden cast upon the plaintiff has been effectively discharged and the onus so shifted on the defendants has not been properly explained. This aspect of the matter has been considered in paragraph-15 at page No. 5 of the impugned judgment.
Viewed from any angle, the First Appellate Court is justified in coming to the conclusion that rate of rent was Rs. 1,500/- p.m. and it was earlier Rs. 1,350/- p.m. If arrears of rent is calculated @ Rs. 1,500/- p.m. it would be Rs. 18,000/- per year and for three years prior to filing of suit it would be Rs. 54,000/-
The First Appellate Court has assessed the entire evidence on the basis of the touchstone of intrinsic probabilities and has a adopted right approach to the real state of affairs.
It has come to the close quarters while assigning its own reasons as to how the Trial Court has gone wrong on the vital aspect relating to the arrears of rent calculated @ Rs. 1,500/- p.m. prior to the filing of suit for a period of three years. Hence, substantial question of law No. 1 is answered in the negative. Substantial questions of law Nos. 2 and 3 are answered in the affirmative.
For the reasons stated above the appeal will have to be allowed in part only insofar as it relates to the quantum of arrears of rent is concerned. The arrears of rent will have to be calculated for a period of three years only prior to the filing of the suit and that would work out to Rs. 54,000/- only at the rate of Rs. 1,500/- p.m.
ORDER
Appeal is allowed in part. The judgment and decree of the First Appellate Court is modified directing the appellants herein to pay in all a sum of Rs. 54,000/- (Rupees Fifty Four thousand only) being arrears of rent from the date of filing of suit till realization with interest at 6% p.a. thereon along with proportionate costs. The Judgments of both the courts stand modified accordingly.