BEJOY KRISHNA MAITY Vs. JOYDEB SAW
HIGH COURT OF CALCUTTA
BEJOY KRISHNA MAITY
Referred Judgements :-
MOZAM SHAIKH VS. ANANDA PROSAD BHADRA AND ANR.
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Ghatal, Midnapore -
(1.)1. In this First Miscellaneous Appeal, the order of remand passed by the
Civil Judge (Sr. Division), Ghatal, Midnapore dated 30th April, 1997 in Title
Appeal No. 8 of 1996.is under consideration. The appellants are aggrieved by
an order of remand passed by the Appellate Court to give an opportunity to
adduce evidence and to re-hear the case afresh in presence of both sides. The
real crux of the matter is in relation to production of the xerox copy of the
documents being Ext. B and Ext. B-1. The Court held that a person from the
office where the original had been produced would have been examined by the
defence to prove the signature. An argument has been put forward before this
Court by the appellants that there is no applicability of section 53A of the
Transfer of Property Act due to variation of the condition in the original
agreement. The learned Munsif held that the defendant/respondent frankly
admitted that the defendant would definitely be evicted from the suit premises
if the protection provided under section 53A of the Transfer of Property Act is
not extended to him. It has already been exposed and held that the defendant
made default in payment of monthly rent from a month. Since then he did not
pay any rent nor did he show his willingness to pay the sum as per agreement
entered into between the parties. According to me, each and everywhere in the
written statement, evidence and Paper Book, the defendant has shown himself
as a monthly tenant. Therefore, if he is as a monthly tenant, the existence of
the Ext. B being the agreement to draw an inference-at about part performance
under section 53A of the Transfer of Property Act does not lie. Had there been
a marginal case dependable only on such agreement requiring performance to
come to a conclusion then in that case the question of appointment of an expert
to prove the genuinity of the document would have arisen. This is not such a
case. As per Halsbury's Laws of England, 4th Edition, at page 391 in paragraph
568 where a contract is varied it operates according to the variation, and the
original terms cannot be set up by one of the parties against the other. In any
event, the respondent contended that the tenancy could also be created by
contract, apart from the tenancy at will or at sufferance. The learned Counsel
appearing for the respondent cited a judgment reported in 46 CalWN 366, Mozam
Shaikh vs. Ananda Prosad Bhadra & Anr., to establish his case. In reply, the
learned Counsel appearing for the appellants contended that their case is that
when it is an admitted position that the respondent had obtained a xerox copy
of the agreement then the question of non-availability of such agreement does
not apply. I am of the view that this is an important aspect of the matter in
respect of the fact whether non-availability of the original document is formal
one cr not. Whether section 53A of the Transfer of Property Act will be applicable
or not is also to be considered independently before appointment of an expert,
if any, and to examine the defence to prove the signature of one. Unless such
point is considered the matter cannot be remanded back. Incidentally, a factual
question has also struck the mind of the Court in respect of the existence of the
agreement for a period of 51 years at a monthly rent of Rs. 50/- per month.
However, the same was increased subsequently. In any event, all such questions
are to be taken independently by the Court of First Appellate Court before
passing an order. According to me, the important part of due consideration is
which question will prevail over another. The question of appointment of an
expert to prove the signature in the agreement or the existence of the agreement
in the circumstances. According to me, the existence of the agreement is the.
prime consideration in the facts and circumstances of the case. Therefore, the
remand order is .bad and has to be set aside. Accordingly the same is set aside.
The Lower Appellate Court is directed to give an independent hearing and
finalise the issue preferably within a period of three months from the date of
communitation of the order or availability of the records whichever is later.
(2.)The appeal is, thus, disposed of. There will be no order as to costs.
(3.)Let Lower Court Records be sent down to the Court below as expeditiously as possible but not beyond the period of fortnight from this date. Appeal disposed of.
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