Decided on June 15,1983

P S NIRASH Appellant


- (1.)The suit for the eviction of the tenants, who were defendants in the trial Court and are appellants before me (hereafter referred to as the "tenants"), was filed in October, 1980 by the landlords, who were plaintiffs in the trial Court, and are respondents before me (hereafter referred to as the "landlords"), on the ground that the tenants defaulted to pay rents since September, 1977 and the suit having been decreed by the learned District Judge the tenants have preferred this appeal.
(2.)It appears from Para 3 of the plaint and also from the evidence on record that there was a previous suit filed by the landlords, being Civil Suit No. 27 of 1977, in the Court of the District Judge, Gangtok, against the tenants for their eviction from the suit premises on the ground that the same were required for the bona fide occupation of the landlords and also for recovery of arrears of rents for the months of July and August, 1977, and though the suit was dismissed so far it related to the claim for ejectment, it was decreed in respect of the claim for arrears of rents for the two months as aforesaid. It is not disputed that no rent has been paid by the tenants for any period from the month of September, 1977 and in reply to the averments of the landlords made in Para 2 of the plaint to the effect that "the defendants defaulted to pay the rents of the suit premises since the month of September, 1977 and as such the defendants have forfeited their rights to get the benefit of protection against eviction as contemplated under the law", the tenants in para 6 of the written statement have urged that "the plaintiffs refused to receive the rental and as such the defendants had no option but to remain silent till they claim the same" and that "there is no provision under the Gangtok Rent Control Rules to deposit such rental in Court or with the Rent Controller". Mintok Dolma, one of the co-landlords, figuring as P.W.1, has asserted in her examination-in-chief that "the tenants never offered rents of the suit premises to us since the time of their default", that "no rent was offered to us by the defendants by Money Orders", that "they have also not deposited the arrear rents for the defaulting period in Court" and that "if the defendants had offered the rents before this suit, we would have accepted the same". And in her cross-examination also P.W.1 has similarly asserted that "it is not a fact that the defendants offered rents to us" and that "it is not a fact that we refused to accept rents". P.S. Nirash, one of the co-tenants, figuring as D.W.1, has stated in his examination-in-chief that "after the last suit was decided, I offered rent to the landlady" and that "she did not receive the rents", while in cross-examination he has said that "I offered the decretal amount to the decree-holders, but they have refused to accept it" and that "I offered the decreed rents on the date of the judgments in the suit outside the premises of the house of the landlord". So when the statements of D.W.1 in examination-in-chief as well as in cross-examination are read together, one would get the impression that all that was tendered and refused according to D. W. 1 was the rent for the two months of July and August, 1977, decreed in the previous Suit No. 27 of 1977 and no rent for any period from September, 1977 onwards, for which the tenants are alleged to have committed default and for which ejectment is claimed in this suit, rendered by the tenants to the landlords at any time. There can be no manner of doubt that if in answer to the case made by the landlord that the tenant has defaulted in the payment of rent, the only case made out by the tenant is that he tendered the rent but the same was refused, the onus lies heavily on the tenant to prove by satisfactory evidence that he tendered the due amount within the due period to the person to whom it was due. There is no evidence whatsoever as to what amount was tendered and on what date and within what period, from which it can be argued that the tender was valid in law and, therefore, refusal thereof by the landlords absolved the tenants from any liability to be ejected on the ground of default in payment of rent. There is nothing documentary on record to show that the tenants tendered rent and the landlords refused to receive the same. Exhibit D-3 appears to be a refused Money Order for Rs. 140/- only and, apart from the fact that, as rightly pointed out by the District Judge, the refusal having been denied by P.W.1 on oath, the endorsement "refused" on the said Money Order could not, by itself and without the evidence of the postal peon, lead to any presumption that the same was tendered to the addressee and was refused by him, the said Money Order also ex facie related to the amount which was decreed for the rent for August, 1977 in the earlier suit and, therefore, the same could not amount to a tender of rent for the period commencing from the month of September, 1977, for which period the tenants are alleged to have committed default in this suit. And that the said Money Order, Ext. D-3, could not be a tender for any rent for the period of default for which the present suit has been filed, is clinched, so to say, by the statement of D.W.1 to the effect that "I did not send the rents by Money Order". The other co-tenant, Mrs. Nirash, who was examined as D. W. 2 more than three months after her husband D.W.1 was examined, could not improve matters. She came out with a story, not at all corroborated by her husband, of her husband taking Rs. 6,000/- from her in 1980 to pay the rents and "that rent was non accepted by the landlords". As I have already noted, a valid tender must be of the amount due and within the time due and a tender made sometime in 1980 of the amounts due as rents from September, 1977, cannot obviously be a valid tender to protect the tenants from the liability for default to pay rents. As already noted, the defence of the tenants being tender of rents by them and refusal thereof by the landlords, the onus was entirely on them to prove that they made such tender validly and within time and the same was refused. The evidence on this point, as pointed out by the learned District Judge, is almost oath against oath and I do not think that the learned District Judge can be regarded not to be justified in believing the evidence of the landlords in preference to that of the tenants, warranting interference by this Court with his findings of fact. As has been pointed out repeatedly both by our pre-independence apex Court (vide, observations of Lord Atkin in W.C. Macdonald ] Fred Latimer, AIR 1929 PC 15 at p. 18 and the observations of Lord Mac Dermott in Veeraswami v. Talluri Narayya, AIR 1949 PC 32 at p. 33) and also by our post-independence apex Court (vide, observations of Mukherjea, J., in Sarju Pershad v. Jwaleshwari, AIR 1951 SC 120 at pp. 121-122), when the question is undoubtedly one of fact and the decision depends upon the appreciation of conflicting oral testimony, the appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. This does not, as it obviously cannot, mean that the appellate Court shall not or cannot reverse a finding of fact arrived at by the trial Judge, but all that it means is that when there is a conflict of oral evidence of the parties on any matter in issue and the decision hinges on the credibility of the witnesses, then, unless there is some special feature about the evidence which has escaped the notice of the trial Judge or there is a sufficient balance of improbability of displace his opinion as to where the credibility lies, the appellate Court should not as a rule (though of practice and not of law), interfere with a finding of fact. Borrowing from Lord Atkin (in W.C. Macdonald v. Fred Latimer supra, at p. 18), I would say that "there is no sufficient balance of improbability to displace the trial Judge's finding as to the truth of the oral evidence" and I, therefore, accept the finding of the trial Judge on this point.
(3.)Mr. Udai P.Sharma, the learned Advocate for the tenants-appellants, has however urged that even if the trial Judge is held to be right in holding that there was no payment of rent or no valid tender and refusal thereof, the trial Judge went wrong as he failed to notice that in the earlier Suit No. 27 of 1977, not only rents for the months of July and August, 1977 were decreed, but, as will appear from the certified copy of the judgment Ex. P-3, there was a decree "also for mesne profits at the rate of Rs. 140/- per month from September, 1977 till realisation" and Mr. Sharma has urged that once mesne profit is decreed for the period for which default in payment of rent is alleged in the suit and the same could be realised in execution of that decree, the tenants were no longer under any obligation to pay any amount as rent and that if the obligation to pay rent ceased, the liability to be evicted for default to pay rent also could not but cease to exist. In the earlier suit, being No. 27 of 1977, the claim for ejectment was dismissed but the claim for arrears of rents for two months preceding the suit was decreed. The tenancy thus not having been determined, the learned Judge was obviously wrong in decreeing mesne profit which, as defined in Section 2 (12) of the C. P. Code, can be payable only by a person in wrongful possession and not by a tenant. The Gangtok Rent Control and Eviction Act, 1956, which governs suits of this nature, does not require any notice of determination of tenancy to precede a suit for ejectment of tenant and it has now been settled by a seven-Judge Bench of the Supreme Court in V. Dhanapal Chettiar v. Yasodia Ammal, AIR 1979 SC 1745 that in order to obtain a decree or order for eviction against a tenant under any such State Act, a notice of termination of tenancy under the provision of Sec. 106, Transfer of Property Act, is not necessary and, therefore, a tenant, even when sued for eviction, continues to be a tenant until the decree for eviction is passed, and, therefore, in the earlier suit a decree for mesne profit could have been passed only for the period from when a decree for eviction, if any, was passed. The judgment in the earlier Suit No. 27 of 1977 was delivered on 19-7-1980 and even assuming that it was a decree for ejectment, which it was not, a decree for mesne profit could, if at all, be passed for a period thereafter and in no case for the pendente lite period in that suit commencing from September, 1977.

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