Ramesh Chandra Sharma vs Ramji Das Agarwal
2019 Latest Caselaw 5857 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									AFR
 
									 Reserved
 

 

 
Court No. - 7
 

 
Case :- SECOND APPEAL No. - 752 of 1999
 
Appellant :- Ramesh Chandra Sharma
 
Respondent :- Ramji Das Agarwal
 
Counsel for Appellant :- R.P. Tiwari,Rishikesh Tripathi
 

 
Hon'ble Ajay Bhanot,J.

1. This second appeal arises out of judgment and decree dated 12.02.1999 in Civil Appeal No. 179 of 1994 (Ramji Das Agarwal Vs Ramesh Chandra Sharma) rendered by the learned Additional District Judge IV, Jhansi, which set aside the judgment and decree dated 22.11.1994 entered by Additional Munsif 3rd, Jhansi.

2. The plaintiff-appellant brought civil action for eviction, of the defendant-respondent, from the premises in dispute, by instituting Original Suit No. 260 of 1989 (Ramesh Chandra Sharma Vs Ramji Das Agarwal) before the III Additional Munsif, Jhansi.

3. The case of the plaintiff-appellant, as set out in the plaint, was that the plaintiff is the landlord of the property in dispute. The defendant-respondent is a tenant in the disputed property. The rent of the property which was payable by the defendant tenant was at the rate of Rs. 300/- per month. A notice terminating the tenancy was served upon the defendant-respondent by the plaintiff-appellant.

4. The defendant-respondent refuted the contents of the plaint and filed a written statement. He denied the landlord tenant relationship, with the plaintiff-appellant.

5. The learned trial court framed various issues after exchange of pleadings. The issue which remains relevant to date, is issue no. 1 framed by the learned trial court, "whether the defendant is a tenant of the plaintiff in the property in dispute, and was liable to pay a rent of Rs. 300/- per month, in his capacity as the tenant?" The learned trial court considered the pleadings of the parties, adverted to the evidences tendered and returned a finding on the aforesaid issue.

6. The learned trial court, noticed the oral evidence of the plaintiff-appellant PW-1 Ramesh Chand, wherein he called reference to the suit between the defendant and the father of the plaintiff, registered as Original Suit no. 738 of 1969 (Ram Swaroop Sharma Vs Ramji Das Agarwal). In the said suit a compromise was executed between the parties on 01.03.1987. In terms of the compromise the defendant-respondent, was required to pay a rent of Rs. 300 per month, in regard to the disputed property. The plaintiff further testified, that the defendant did not pay the rent as agreed to between the parties, in the compromise. It was specifically asserted, before the learned trial court, by the plaintiff, that the defendant Ramji Das Agarwal was the tenant in the disputed property, and the plaintiff was the landlord/owner thereof. The stand of the defendant was also considered.

7. The judgment of the trial court, in Original Suit no. 738 of 1969 (Ram Swaroop and others Vs Ramji Das and others), was received in evidence, to prove the landlord tenant relationship between the plaintiff-appellant and the defendant-respondent.

8. The defendant admitted receipt of the notice, terminating the tenancy. The testimony of the defendant, before the learned trial court, denying the compromise which was numbered as Paper no. 90-A, was disbelieved by the learned trial court.

9. In the wake of the aforesaid pleadings and evidence the learned trial court, found that the landlord tenant relationship between the plaintiff and the defendant stood established. The rent of Rs. 300/- per month was held payable by the defendant to the plaintiff towards rent. The defendant-respondent had defaulted in payment of the rent to the landlord (plaintiff-appellant) and he was liable to be evicted. The stand of the defendant that he was not the tenant in the premises in question was invalidated by the learned trial court.

10. On these terms the learned trial court rendered a judgment and decreed the suit on 22.11.1994.

11. Aggrieved the defendant took the judgment and decree of the learned trial court in appeal, by instituting Civil Appeal no. 179 of 1994 (Ramji Das Agarwal Vs Ramesh Chandra Sharma).

12. The only point for determination, before the learned first appellate court, was the admissibility of the judgment of Original Suit no. 738 of 1969 (Ram Swaroop and others Vs Ramji Das and others), in evidence. The learned first appellate court, found that the plaint made no reference of the judgment of the trial court rendered in Original Suit no. 738 of 1969 (Ram Swaroop and others Vs Ramji Das and others). The learned appellate court, ruled that the said judgment was not liable to be admitted in evidence, on the foot, that no pleading in regard thereto was taken in the plaint.

13. Sri Rishikesh Tripathi, learned counsel for the appellant, submits that the learned appellate court, had misdirected itself in law by discarding the judgment in Original Suit no. 738 of 1969 (Ram Swaroop and others Vs Ramji Das and others) between the parties. The judgment was admissible in evidence. The plaintiff was only required to plead the facts and not evidence. He calls attention to Order VI Rule2 CPC.

14. Per contra, Sri Mangala Prasad Rai, learned Senior Counsel on behalf of the defendant-respondent, assisted by Sri Ashok Kumar Rai, learned counsel, submits that the plaintiff had not taken any pleading in regard to the judgment in Original Suit no. 738 of 1969. In absence of such pleading the learned appellate court rightly declined to receive the same in evidence.

15. The substantial question of law is being framed with consent of parties.

16. The following substantial question of law arises for determination in this appeal:

"Whether the appellate court, misdirected itself in law by holding that the judgment in Original Suit no. 738 of 1969, which was appended to the plaint, was inadmissible in evidence, on the foot that no pleadings in regard to the said judgment were made in the plaint?"

17. The basic and cardinal rules of pleadings are set out in Order VI CPC. The rules of Order VI which are relevant are extracted hereunder:

"2. Pleading to state material facts and not evidence

(1) 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.

(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph."

18. The purpose of pleadings in the relevant provisions of CPC extracted earlier is clear, while scope of tendering evidence is also well settled. The rule of pleadings embodied in Order VI CPC, was considered by the Hon'ble Supreme Court, in Popat and Kotecha Property Vs State Bank of India Staff Association, reported at (2005) 7 SCC 510. Essentially reiterating the statutory mandate the Hon'ble Supreme Court held thus:

"21. Order VI Rule 2(1) of the Code states the basic and cardinal rule of pleadings and declares that the pleading has to state material facts and not the evidence. It mandates 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."

19. The purpose of plaint, is to set out the material facts which constitute the claim, and state the cause of action of the suit. Apart from this, the rules regarding pleadings, serve another salutary purpose. The pleadings alert the opposite party to the case of the adversary (plaintiff in this case).

This enables the opposite party to refute the case of the plaintiff and/or to tender its defence and evidence in that regard. The rule of pleadings, thus precludes a party from springing a surprise on its adversary, by bringing a case which the latter was not aware of and hence could not defend against.

20. Evidence, on the other hand, is tendered by a party in support of or to establish its case set out in its pleadings (in this case the plaint). Hence evidence is not required to be pleaded. However, as regards the evidence tendered by a plaintiff or any party, the adversary (in this case the defendant-respondent), has ample opportunity to meet or refute the same. Oral evidence of witnesses, can be impeached during cross examination. In case of documentary evidence, the adversary party can challenge the admissibility or disprove the document before the court.

21. Coming to the established facts of the case, the plaint clearly stated that there was a landlord tenant relationship between the plaintiff-appellant and the defendant-respondent. The judgment of the trial court in Original Suit No. 738 of 1969 (Ramesh Chandra Sharma Vs Ramji Das Agarwal) was appended to the list of documents attached to the plaint.

22. The judgment of the trial court in Original Suit No. 738 of 1969 (Ramesh Chandra Sharma Vs Ramji Das Agarwal) was passed on the foot of compromise between the parties. The judgment and the compromise therein, evidenced the landlord tenant relationship between the plaintiff-appellant (his predecessors in interest) and the defendant-respondent.

23. The documentary evidence in the shape of judgment of the trial court in Original Suit No. 738 of 1969 (Ramesh Chandra Sharma Vs Ramji Das Agarwal) is consistent with the pleadings made in the plaint. The judgment of the trial court in Original Suit No. 738 of 1969 (Ramesh Chandra Sharma Vs Ramji Das Agarwal) was introduced as documentary evidence to fortify the landlord tenant relationship between the plaintiff-appellant and defendant-respondent, as set out in the plaint and to prevent the defendant-respondent from resiling from his earlier admission.

24. In light of the established state of facts and statement of law narrated in the preceding paragraphs, the judgment of the court rendered in Original Suit No. 738 of 1969 (Ramesh Chandra Sharma Vs Ramji Das Agarwal) was admissible in evidence. There was no requirement, to take a pleading in the plaint, with regard to such documentary evidence introduced by the plaintiff-appellant. The learned appellate court erred in not receiving the said judgment in evidence.

25. The learned trial court, in its judgment dated 22.11.1994, rightly found the landlord tenant relationship between the plaintiff-appellant and defendant-respondent. Trial court lawfully received the judgment in Original Suit No. 738 of 1969 in evidence. Finding of the trial court, that the defendant-respondent had defaulted in payment of rent, and the consequent order of his eviction, from the disputed premises, are impeccable and cannot be faulted with. The judgment and decree dated 22.11.1994, of the trial court, does not suffer from any infirmity, and is liable to be upheld.

26. The substantial question of law is answered as follows:

The first appellate court, misdirected itself in law, by finding that the judgment in Original Suit No. 738 of 1969 (Ramesh Chandra Sharma Vs Ramji Das Agarwal), was not admissible in evidence and erred by not considering the same, on the foot that no pleadings in that regard to the said judgment were made in the plaint.

27. The substantial question of law, is thus answered in the affirmative, in favour of the plaintiff-appellant. The judgment of the learned appellate court is unsustainable in law and cannot stand. The judgment and decree of the appellate court, dated 12.02.1999, passed by IV Additional District Judge, Jhansi in Civil Appeal no. 179 of 1994 (Ramji Das Agarwal Vs Ramesh Chandra Sharma) is set aside. The judgment and decree dated 22.11.1994 rendered by the learned IIIrd Additional Munsif, Jhansi in Original Suit No. 260 of 1989 (Ramesh Chandra Sharma Vs Ramji Agarwal alias Ramji Das Agarwal) is affirmed.

28. The second appeal is allowed.

Order Date :- 09.07.2019

Pravin