Rashtariya Printing Press vs Gian Chand
1997 Latest Caselaw 752 Del

JUDGMENT

Mohd. Shamim, J.

(1) This is a second appeal preferred by the defendant/appellant (hereinafter referred to as the appellant in order to facilitate the reference) against the judgment and order dated October 17, 1978 passed by an Additional District Judge, Tis Hazari, Delhi whereby he set aside the judgment and decree dated January 14, 1972 dismissing the suit of the plaintiff/respondent (hereinafter referred to as the respondent for the sake of convenience) for recovery of possession over the properties bearing municipal Nos. VII/3020/64/5532-24 and 5556-63, plot No. 78, G.B.Road, Delhi, and decreed the suit for recovery of possession over the above said properties (hereinafter referred to as the disputed properties for the sake of brevity).

(2) Brief facts necessary for the disposal of the present appeal are as under: that the respondent herein Shri Gian Chand (plaintiff in the suit) filed a suit bearing No. 59/72 for recovery of possession over the disputed properties alluded to above. According to him, he was the owner of the above said properties by virtue of a sale certificate dated August 31, 1964 issued by Custodian of Evacuee Properties. The aforementioned properties consist of a shop and mezzanine bearing municipal No. 5534/5561, and mezzanine bearing municipal No. 5562, situated at G.B.Road, Delhi, and shown in red colour in the plan annexed with the plaint. The appellant have trespassed into the said properties and occupied the same without any right, title or interest therein and without the consent of the respondent and his predecessor-in-interest. The respondent repeatedly requested the appellant to vacate the above said properties and to deliver the vacant possession over the same to the respondent, but to no avail. Hence, arose the necessity for the institution of the suit.

(3) The appellant put in contest, inter alia, on the following grounds: that the suit was under-valued for the purposes of Court fee and jurisdiction. The Court did not have the necessary jurisdiction to entertain the suit. The same was not maintainable. The respondent was not the owner of the disputed property. The appellant were in possession over the above said properties since 1958 having taken the same on rent from their original owner known as Mohd. Fasihuddin. They have been paying rent since then. Besides the above said properties the appellant are also in possession over a portion of the second floor of the property bearing municipal No. 5562 since 1958. They took the said property on rent from Shri Mohd. Usman who was the Managing Co-sharer of the above said building. They have been paying rent in respect of the said portion to him. The appellant are a tenant therein. In any case, their possession was lawful, permissive and ripened into a tenancy by virtue of Section 29 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 (`the Act' for short). The suit is thus liable to be dismissed.

(4) The learned Sub Judge, Mrs. Aruna Suresh, was of the view that there existed a relationship of landlord and tenant in between the parties and the appellant were not trespasser. Thus, the Court did not have the necessary jurisdiction to entertain the suit. Further, the suit, according to her, was under-valued for the purposes of Court fee and jurisdiction. The suit was thus dismissed.

(5) Aggrieved with the said judgment and decree the respondent approached the District Judge by way of an appeal. The appeal came up for hearing before an Additional District Judge who set aside the above said judgment and decree passed by the learned lower Court dated February 28, 1976 and decreed the suit of the plaintiff for recovery of possession over the above said properties vide his judgment and order dated October 17, 1978.

(6) Aggrieved and dis-satisfied with the said judgment and order the appellant have approached this Court by way of second appeal.

(7) Learned counsel for the appellant for the appellant Bawa Charan Singh has vehemently contended that the plaint in the suit was not sufficiently stamped. The suit was as such not properly valued for the purposes of Court fee and jurisdiction as found by the learned Sub Judge. Admittedly, the said finding was not disturbed even in appeal by the learned Additional District Judge. Hence, the learned Additional District Judge fell into a grave error by decreeing the suit. The next contention raised by the learned counsel for the appellant is that the appellant herein were the tenant of erstwhile owner of the disputed property known as Mohd. Fasihuddin. They were paying rent to him. They also paid rent to Mohd. Usman. Hence the learned Additional district Judge was wrong in coming to the conclusion that the appellant were not the tenant. Subsequently, when the property was purchased by the respondent herein from the Custodian Department in an auction the appellant became his tenant by virtue of the provisions of Section 29 of the Act and the learned appellate Court should have held as such.

(8) Learned counsel for the respondent Mr. P.K. Jetley, on the other hand, has urged to the contrary.

(9) Learned predecessor of this Court while admitting the present appeal framed the following questions of law for decision in the present appeal:

1. Whether the Additional District Judge having found that the plaint as originally filed was not property stamped and the appeal before him also having not been properly stamped by payment of full Court fee on the value of Rs. 10,000.00 , had any jurisdiction to pass a decree for possession against the appellant? 2. Whether the benefit of Section 29 of the displaced persons (compensation and rehabilitation) Act could be denied to the appellant on the finding given by the authority under the Act after the sale deed had been issued in favour of the respondent?

I have heard the learned counsel for the parties at sufficient length and have very carefully examined their rival contentions and have given my anxious thoughts thereto. Learned counsel for the appellant contends that once the learned Sub Judge found the suit under valued and the Court fee paid as deficient and directed the respondent to make good the deficiency in Court fee, the respondent was under an obligation to make good the deficiency in Court fee before approaching the first appellate Court. The learned counsel in this connection has led me through the finding of the Sub Judge on issue No. 6. Thus, according to the learned counsel the learned Additional District Judge should not have entertained the appeal before the appellant (respondent herein) made good the deficiency in Court fee. Hence no relief could have been granted to the respondent by the Additional District Judge. Learned counsel for the respondent Mr.Jetley on the other hand has argued that it is within the discretion of any Court, including the appellate Court to extend the time for the payment of the Court fee. Learned counsel for the appellant in support of his contention has led me through Section 6 of the Court Fees Act. It is in the following words: "Except in the Courts hereinbefore mentioned, no document of any of the kinds specified as chargeable in the First or Second Schedule to this Act annexed shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document." Learned Senior counsel Mr. Bawa on the basis of the above has argued that the ban imposed by Section 6 is a complete and a total ban to receive, exhibit or record any document in any Court of law unless the said document is sufficiently stamped as provided by First and Second Schedule. Hence the learned first appellate Court should not have entertained the appeal and should not have granted the relief sought for through the said appeal. The respondent while approaching the first appellate Court was also under an obligation to pay the Court fee on the subject-matter in dispute on the value of the relief granted by the impugned decree. The next contention raised by the learned counsel for the appellant is that once the Court has finally disposed of the matter then it is beyond the competence of the appellate Court to extend the time for the payment of the Court fee. Learned counsel in support of his argument has placed reliance on Babu Balmakund Gupta v. Secretary of State, (28) Air 1941 Allahabad 295,"..... Where a defendant seeks to set aside the whole decree passed against him the value of the subject-matter in dispute must necessarily be the value of the relief granted by the decree which the appellant wishes to disembarrass himself of. In such a case, the value of the relief granted which it is sought in the appeal to get rid of is the criterion for valuing appeal. It is not open to an appellant-defendant to avoid assessing his appeal at its full valuation merely because it may prove, as a result of the appeal itself, that the plaintiff's own valuation was excessive. It is not open to him first to decide the appeal in his own favour and then to value his appeal accordingly."

THE learned counsel has then led me through Kanhu Charan Behera and another v. Jagabandhu Behera and others , wherein it has been held"....... O. 20, Rule 3, lays down that once a judgment or decree is signed, it shall not afterwards be altered or added to save as provided by Section 152, Civil Procedure Code . or on review. Accordingly Section 148, Civil Procedure Code . cannot be allowed to take away the effect of this rule, though, if the decree is varied or reversed by the appellate Court, it can fix a period different from the one fixed by lower Court. This doctrine has, however, an important exception. Where the decree fixing the time is not intended to be final and the Court still retains control over the proceedings, the Court may extend the time granted under the decree under this Section. Thus a distinction is to be drawn between a case. Where the proceeding has come to a close, and another case, where it has not terminated and the Court still retains control over it. Whether a proceeding has come to a close, or is still alive, would again depend upon the nature of the proceeding and the order passed thereon. If the order is a final order, the Court is functus officio, otherwise the Court can enlarge time."

The contention of the learned counsel for the appellant is without any merit. The question with regard to the payment of the Court fee is a question exclusively within the domain of the litigant and the Government. It has been left as such entirely to the discretion of the Court' to extend the time for the payment of the Court fee. The provisions of Sections 148-149 of the Code of Civil Procedure (CPC) are quite explicit, clear and unequivocal on the said point. The said sections as such can be adverted to with profit. Section 148 of the Civil Procedure Code . envisages "Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired." Section 199 specifically relates to the power of the Court to grant time to make good the deficiency in the Court fee. It lays down "Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as' the case may be, of such Court-fee and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance". A close scrutiny of the above provision of law reveals that Section 148 of the Civil Procedure Code deals with those situations in which the Court granted time to make payment of the Court fee. Admittedly in the instant case the learned Sub Judge did not fix any time limit for the payment of the Court fee. The matter was left entirely to the discretion of the appellant. Thus a direction was issued to make good the deficiency without allowing any time to the appellant to do so. Hence, Section 148, Civil Procedure Code is not applicable to the present case. The case of the appellant squarely falls within the ambit of Section 149. The said section authorises the Court to extend the time for the payment of the Court fee from time to time and the moment such payment has been made in respect of a document it will have a retrospective effect and it will have the same force and effect as if such fee had paid in the first instance. The learned appellate court as is manifest from the impugned judgment and order agreed with the learned lower Court on finding of issue No. 6 and likewise directed the respondent herein to make good the deficiency in the Court fee. Thus, the learned Additional District Judge did not direct the respondent to make good the deficiency in Court fee within a stipulated period. Thus, again it was left to the discretion of the respondent to pay the requisite Court fee. The present appeal was filed on 27th November, 1978. The respondent only a few days thereafter i.e. 8th December, 1978 moved an application for permission to deposit the necessary Court fee (vide Cm 949/78). Now the question which arises for determination is as to whether the respondent can be validly permitted to make up the deficiency in the Court fee at this belated stage i.e. in the second appeal? It is crystal clear from the relevant provision of law i.e. Section 149, Cpc, adverted to above, that the Court is competent to extend the time at any stage of the proceedings. Thus there is no let or hindrance in the way of the Court to allow the time to make good the deficiency in the Court fee. The Legislators in their wisdom have used the words "at any stage". It would obviously include even a second appeal. Once a discretion has been given to a Court to exercise it in a particular situation; it is well-known that the discretion is to be exercised judiciously and if the same can be exercised without any legal hindrance and obstruction then I feel it should be exercised in favour of the party claiming the relief. The respondent as I have already observed above has moved an application for permission to deposit the Court fee as per the directions of the Courts below immediately after the presentation of the appeal i.e., on December 8, 1978 (vide Cm No. 949/78) i.e., 11 days after the presentation of the appeal. Thus I fell there is no justification as to why the respondent be not permitted to deposit the Court fee and to reap the fruits of the decree passed by the appellate Court in his favour simply because he got late in depositing the same. This is all the more so when no time limit was fixed for the payment of the Court fee by the Courts below. A problem very much akin to the problem in hand came up for consideration before a Full Bench of the Punjab High Court as late as in the year 1909 in Civil Appeal No. 1909 Dyal Singh & Ors. v. Ram Rakha & Ors., as reported in Punjab Record 1912, Vol. 47, page 367 at page 371. It was dealt with in the following way: " ......if the Court-fee paid on a memorandum of appeal, as in this case, to the `first Court' of appeal is insufficient, it is competent in this Court to call upon the appellant in the first Court of appeal to make good the deficiency in the Court-fee on the memorandum of appeal in that Court, and on his failing to do so, to dismiss the appeal in that Court, should the appeal have been decided in his favour, after reasonable time has been allowed to make good such deficiency, or, in case the appeal in the Lower Appellate Court of the party appealing to this Court has been dismissed, to refuse to entertain his appeal to this Court until the deficiency is made good, a reasonable time being allowed for such purpose, after which, should the deficiency not have been made good, the appeal to this Court would stand dismissed. A similar question which arise in a case before their Lordships of the Supreme Court reported in Mahasay Ganesh Prasad Ray and another v. Narendra Nath Sen and others, , was answered in the following manner: "The question of payment of Court-fees is primarily a matter between the Government and the person concerned and therefore where the High Court in the exercise of its discretion allows the appellant to amend his memorandum of appeal and grants time for payment of deficient Court-fee under Section 149, the other party cannot attack the order on ground that it takes away his valuable right to plead the bar of limitation". This problem also cropped up before a Full Bench of the Kerela High Court in the case as reported in Kathyee Cotton Mills Ltd. v. R.Padmanabha Pillai and others, (Special Bench), and it was tackled in the following way: "Section 149 gives power to the Court to allow a person to pay the deficit Court-fees at any stage which means including the stage of an appeal. It deals with the initial stage of allowing time, at any stage, for payment of the additional Court-fees. Section 148 on the other hand, comes into play when once the time has been already fixed or granted by the Court, not only in matters of Court-fees, but also in all other cases and the Court is given the power to enlarge such period originally fixed or granted even though the period originally fixed or granted may have expired. Therefore there is no conflict or exclusiveness between the two section. A party is not, as of right, entitled under Section 148 to get an extension or an enlargement of a period fixed or granted by the Court. That is a matter entirely within the discretion of the Court though no doubt such discretion should be exercised judicially and not capriciously or arbitrarily". Thus, the Court can always extend the time for the payment of the Court fee at any stage of the proceedings. Hence, the respondent herein is permitted to make good the deficiency in Court fee and the application, being C.M. No. 949/78, is hereby allowed. This brings us to the question as to whether the appellant are entitled to the benefit of Section 29 of the Act? Since we are concerned with the construction of the same, it would be just and proper to examine the provisions of the said Section before embarking upon a detailed discussion on facts and law. It provides as under:- "29.Where any person to whom the provisions of this section apply, is in lawful possession of any immovable property of the class notified under sub-section (2), which is transferred to another person under the provisions of this Act, then, notwithstanding anything contained in any other law, such person shall, without prejudice to any other right which he may have in the property, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held the property immediately before the transfer.: Provided ............."

The learned counsel on the basis of the above has contended that since the appellant herein were the lawful occupant being the tenant of Mohd. Fasihuddin on the date of the transfer of the property in favour of the respondent hence they will be deemed to have become the tenant of the present respondent. The learned counsel in support of his arguments has led me through the observations of a Single Judge of this Court as reported in Parma Nand and anr. v. Qamar Jahan and ors., 1989(1) Rcr 118. It was observed that where it was shown that a person was lawful occupant in a particular property and the same was declared as an evacuee property the said person became a tenant under the Custodian under the Evacuee Property Act. Subsequently if the said properties are transferred from the common pool, a person who is in lawful occupation of that property in that eventuality that person would become the tenant of the transferee on the same terms and conditions. To the same effect are the observations of another Single Judge of this Court as reported in Indra Sharma v. Gopal Dass, 1984(2) Rcr 443. A close and careful scrutiny of the provisions of law referred to above, reveals that Section 29 of the Act would come to the rescue of only those discerning few persons who are lawful occupants on the date of the transfer. The provisions of the said Section can by no stretch of imagination be so extended as to embrace within its fold even the cases of those persons who are unable to show themselves to be the lawful occupants of a particular property. In the above circumstances the question which falls for adjudication in the present case is as to whether the appellant have succeeded in putting forward a case of lawful occupancy of the disputed properties? The respondent has `placed' on record a sale certificate (Ex.PX) issued by the Custodian Department. The factum of ownership of the respondent of the disputed property is not seriously disputed by the appellant. Shri Lurinda Ram (DW2), a partner of the defendant, who appeared as a witness of the defendant, has admitted the factum of purchase of the disputed property by the respondent. Thus, the burden to show in view of the above was on the appellant that they were the lawful occupant of the disputed property. It was observed by a Single Judge of the Bombay High Court as reported in Chandrabai Pandurang Bidwekar v. Nanji Jaywant, ,.... "Where in a suit for ejectment of defendant as trespasser the plaintiff proves his title and the defendant sets up plea of title by way of tenancy under which he seeks to be in occupation of the suit land, it will be for him to establish that title. Unless he does so, the plaintiff by virtue of his title will be entitled to possession of suit land and the defendant must be held to be a trespasser". The case of the appellant as set up in their written statement is that the disputed property belonged to one Fasihuddin and they got the same from him on rent in 1948. Subsequently they got a portion on the second floor on rent of the premises bearing No. 5562 in the year 1958 from Shri Mohd. Usman (vide para 3 of the written statement). Surprising enough Shri Lurinda Ram DW2 on being cross-examined has admitted that he paid rent to Mohd. Fasihuddin. Curiously enough towards the end of his cross-examination he admitted that he never saw Mohd. Fasihuddin. If this is so, it does not appeal is the reason as to how he could have taken on rent the disputed property from a man whom he never saw. This is also beyond comprehension as to how the rent could have been paid to a person whom he never saw. Shri Lurinda Ram DW2 has got this stay in his statement that Shri Mohd. Usman used to collect rent and issue the receipts in token of the receipt of the rent. He is alleged to have issued Exts. D1 to D5. Subsequently he goes on to state that the receipts Exts. D3 to D5 were issued by Abdul Wahid whereas the receipts Exts. D1 & D2 were issued by Mohd. Usman. The subsequent statement is thus contradictory to and inconsistent with his statement in the examination-in-chief that Exts. D1 to D5 were issued by Mohd. Usman. Admittedly receipts Exts. D3 to D5 are alleged to have been issued by Abdul Wahid. Shri Lurinda Ram has admitted during the course of his cross-examination that he did not receive any letter from Mohd. Fasihuddin to pay the rent to Abdul Wahid. It is further in his statement that he did not see any power of attorney with Abdul Wahid. This if any rent was paid to Abdul Wahid the same was without any authority and would not create any tenancy by virtue of the said payment in favour of the appellant. It was observed by a Division Bench of the Patna High Court in the case reported in Mahant Biseshwar Dass v. Sashinath Jha and others, Air 1943 Patna 289, ......" A patwari or even a gomasta, unless he is specially authorised to do so by his proprietor, has no right to inflict a new tenancy on the landlord by recognition or by acceptance of rent. Consequently the acceptance of rent by the proprietor's patwari in the absence of special authority cannot estop the proprietor from challenging the tenancy". Furthermore, it is found in the statement of DW2 Lurinda Ram during the course of his cross-examination that he has been maintaining regular account books. He further goes on to state that the payment of rent shown in Exts. D1 to D5 must have been shown in the account books. If this is so the said account books were the best possible evidence to throw light on the facts of the present case. Admittedly the same are within the power and possession of the appellant. However, for the best reasons known to the appellant they had not been produced before the lower Court. Hence an adverse inference is liable to be drawn in favour of the respondent and against the appellant. Shri Lurinda Ram DW2 has then deposed to the fact that the appellant were accepted as a tenant by the Custodian Department. Curiously enough there is absolutely nothing on record to substantiate the said contention. In fact the judgment and order dated March 19, 1966 instead of helping the appellant has set at naught the entire defense version. A perusal of the same reveals that the learned Settlement Commissioner dismissed the revision petition, cancelled the atonement letters and the order passed by Shri J.C.Gulati, Authorised Settlement Commissioner dated November 23, 1965 was affirmed. Shri J.C.Gulati set aside the order passed by Shri Kartar Singh, Managing Officer (Rent) dated December 11, 1964. Therefore, the appellant were never accepted as a tenant by the Custodian. There is another aspect of the matter. The case of the appellant in their written statement is that they took the disputed property on rent from Mohd. Fasihuddin who is alleged to have died in 1950. Thus, this has never been the case of the appellant that they were the tenant of the Custodian Department. Hence, this statement of Shri Lurinda Ram on this point appears to be an after-thought. It does not lead us anywhere. It is a case beyond their pleadings and inconsistent with and contradictory to their defense as set up in their written statement. It is in the statement of DW2 Shri Lurinda Ram that Mohd. Usman issued the rent receipts Exts. D1 and D2. A perusal of the said rent receipts reveals that they are dated November 17, 1956. Admittedly a portion of the alleged tenanted accommodation was taken on rent from Mohd. Usman in the year 1958. Thus if this is so how Mohd. Usman could have issued the receipts in the year 1956. It can thus be clearly inferred from the testimony of DW2 Shri Lurinda Ram that whatever he has stated is nothing but a white lie. Admittedly, according to Shri Lurinda Ram DW2, Mohd. Usman and Munshi Abdul Wahid used to collect the rent from him for and on behalf of Mohd. Fasihuddin. Thus, the said witnesses were the best possible witnesses to depose with regard to the facts of the present case. Strangely enough for the best reasons known to the appellant neither of them was examined to throw light on the facts of the present case. This is not the case of the appellant that either of them is dead. Thus, the appellant are guilty of suppressing the best possible evidence which could have been led in the circumstances of the present case. Hence, an adverse inference is liable to be drawn against the appellant in favour of the respondent. There is another side of the picture. A mere presentation of the receipt in the absence of any rent note from the side of the appellant does not help them particularly when the contents of the said receipts have not been proved in accordance with law on account of the failure on the part of the appellant to examine Mohd. Usman and Abdul Wahid before the Court below. Shri Lurinda Ram DW2 has simply stated that he identified their signatures and the said receipts were got exhibited on his statement. However, the statement of Shri Lurinda Ram is of no avail to the appellant because he could not have proved the contents of the said receipts. The factum of receipt of rent from the appellant was admittedly within the knowledge of Mohd. Usman and Abdul Wahid. Hence, they and they alone could have proved the said receipts in accordance with law. Thus, the said receipts are not even worth the paper on which they have been recorded and as such they are liable to be flung to the winds. I am supported in my above view by the observations of a Division Bench of the Bombay High Court as reported in Sir Mohammed Yusuf and another v. D. and another, , .... "The evidence of the contents contained in the document is hearsay evidence unless the writer thereof is examined before the Court. An attempt to prove the contents of the document by proving the signature or the handwriting of the author thereof is to set at naught the well recognised rule that hearsay evidence cannot be admitted. Even if the entire document is held formally proved, that does not amount to a proof of the truth of the contents of the documents. The only person competent to give evidence on the truthfulness of the contents of the document is the writer thereof." In the circumstances stated above I am of the view that the appellant are not entitled to the benefit of Section 29 of the Act. Hence, the present appeal fails and is consequently dismissed with costs.