{"id":114905,"date":"1983-07-06T00:00:00","date_gmt":"1983-07-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kastruchand-vs-qazi-syed-saifuddin-on-6-july-1983"},"modified":"2015-06-19T14:22:41","modified_gmt":"2015-06-19T08:52:41","slug":"kastruchand-vs-qazi-syed-saifuddin-on-6-july-1983","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kastruchand-vs-qazi-syed-saifuddin-on-6-july-1983","title":{"rendered":"Kastruchand vs Qazi Syed Saifuddin on 6 July, 1983"},"content":{"rendered":"
Bombay High Court<\/div>\n
Kastruchand vs Qazi Syed Saifuddin on 6 July, 1983<\/div>\n
Equivalent citations: AIR 1983 Bom 360<\/div>\n
Bench: Waikar<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
1.    This is plaintiff’s second appeal, both the Courts below having dismissed his claim  for ejectment and possession.\n<\/p>\n
        2.  Admitted facts are that the defendants was the monthly tenant of the plaintiff on occupation of these premises on monthly rent of Rs. 200\/-.  The plaintiff approached the Rent Controller for permission to determine the tenancy of the defendants.  Before the Rent Controller, the parties came to terms on the point of default in payment of rent for the  period Nov. 1972 to May 1973, and in terms of the compromise arrived at, the Rent Controller passed the following order.\n<\/p>\n
       “I, therefore, order that whereas the non-applicant issued two cheques for arrears of rent from 1-11-1972 to 31-5-1973 and if they are dishonoured, applicant-landlord shall be deemed to have been granted a permission under Clause 13 (3) ibid”.\n<\/p>\n
       3. Admittedly,  in pursuance of the terms of the compromise order.  the defendants issued  one cheque for  Rupees 1,000\/- dated 23-9-1973 and the other for Rs. 400\/- dated 15-10-1973.  The first cheque dated 23-9-1973 for Rs. 1,000\/- was honoured.  while the other cheque dated 15-10-1973 for rupees 400\/- was dishonoured.  This second cheque for Rs. 400\/-, which  was dishonured, was  for the arrears of rent of two months, viz.,  April and May 1973.\n<\/p>\n
       4.  The plaintiff determined the tenancy of the defendants by a quite-notice dated 9-11-1974 on the assumption that consequent upon one of the cheques being dishonoured, permission was deemed to have been granted to him by  the Rent Controller.  He therefore, claimed ejectment, possession and arrears of rent  of Rs. 400\/- for the months of April and May. 1973. and Rs. 400\/- for the months of February and March 1974, total Rupees 800\/-.\n<\/p>\n
      5.  The defence was that it was in the event of both the cheques being dishonoured that permission could he deemed to have  been granted.  Since the first  cheque was duly honoured, the plaintiff had no right to determine the tenancy.  In reply to the claim for arrears of  rent, the plea was that Rupees 150\/- were allowed for  essential repairs every year.  On 13-10-1973.  Rupees 200\/- were paid to Shrimal. the authorised agent of the plaintiff, and in the month of November 1973, Shrimal passed a receipt in token  of having received rent for the months of November and December 1973 and January 1974.  It was further  contended that Rupees 750\/-. which  were lying in deposit with the plaintiff, could have been adjusted.\n<\/p>\n
      6. The trial Court construed the order of the Rent Controller to mean that it was only in the event of both the cheques being dishonoured that permission was deemed to have been granted and since  the first cheque was honoured, the tenancy of the defendants could not be  determined.  The claim for arrears of rent of Rs. 800\/- was. however, fully decreed.\n<\/p>\n
      7.  Aggrieved by this decision, both the plaintiff and the defendants preferred separate appeals.  Plaintiff’s appeal No. 136 of 1978 was dismissed and so also defendant’s  appeal No. 206 of  1978.\n<\/p>\n
       8.  Though the defendants did not prefer any further  appeal so far as the decree for money passed against him was concerned, the plaintiff however, preferred this second appeal against the dismissal of the  claim for  ejectment  by  both the Court below.\n<\/p>\n
       9.  This appeal was partly  heard by  Tulpule, J., and by his order dated 2-4-1981 which he passed under Court. 41, r. 25, C. P. C., he directed  the trial Court to record a finding as to whether the defendants proved the payment of Rs. 400\/- on 15-10-1973  to plaintiff Golcha, giving  liberty to the parties to  lead any additional  evidence on the question  as they chose to adduce.  The trial Court was  directed to remit its finding to the lower Appellant  Court which was also directs  to record its  own finding and then  transmit  the same together with the record of this Court for further hearing  of this appeal.  Shri Tulpule in para-13 of his remand order, however, observed that the order of the Rent Controller. in fact, meant that non-realisation of payment of any of the cheques amounts to grant of permission by the Rent Controller to the plaintiff.  Now, having held so, with  the concurrent finding  of fact of both the Court below that the defendants did not pay Rs. 400\/- on or before 15-10-1973  and the claim for the same as rent for the months of April and May 1973 having been decree by  both  the Courts  below in favour of the plaintiff,   there  should have  been no difficult for  Tulpule. J, to allow the second appeal and decree the claim for ejectment.  It was,  however, observed by hi that the matter could not be disposed of on the finding that bouncing of  any one of the two cheques was enough to enable the plaintiff to determine the tenancy as it was the  contention of the defendants that he had paid a sum of Rs.  400\/- to the plaintiff in the first week of  October 1973.\n<\/p>\n
        10.  After remand, both  the Courts below reiterated the same finding that defendants failed to prove that he paid Rs. 400\/- to the plaintiff in the first week of  October 1973 as contended.\n<\/p>\n
       11.  This finding is sought to be challenged before me when the appeal came up for further  hearing, by Shri K. High. Deshpande. the learned counsel appearing on behalf  of the respondent-defendant.  It is submitted that the receipt (EX. 33) executed  by Shrimal, the manager of the plaintiff. in the month of November 1973 for Rs. 1,000\/- for rent for the months of September 1973 of January 1974, has not been properly construed and understood by the Courts below.  As this receipt shows no arrears in the printed column of arrears,. it must follow that the arrears for the months of April and May 1973 were paid and were not outstanding. Now. even assuming  such an inference of interpretation is permissible, it cannot necessarily follow that the arrears for the months of April and May 1973 were paid prior to 15-10-1973,  which was the stipulated  date of the cheque. Be that  as it may  the question whether the defendants proved  that he did not pay Rupees 400\/- on or before 15-10-1973 is purely  a question of fact and no amount of skill or ingenuity can even turn this into a question of law.  Merely because in the  process of deciding this issue of fact, one of pieces of evidence is this document and the construction and the contents thereof, the main issue does not become  an issue of law.  The omission to mention arrears in the printed column of the receipt would  not necessarily amount to an admission of fact that rent for the months of April and May 1973 were paid, and  that the said payment  was made before 15-10-1973.  In the nature of things,. it is highly importable that the defendant would not take any receipt. particularly for  the payment of rent of these two months, when the non-payment of the same was  to expose him to such a serious consequence of eviction.  Apart from this document, the prevarication in the stand of the defendants is apparent.  The defendants in his evidence before remand deposed that the plaintiff told him on 4-7-1978  that this cheque was misplaced and, hence,  he paid  him Rupees 400\/-  in the first week of October 1973.  After remand, he deposed that he paid Rs. 250\/- and that Rs. 250\/-  were deduced on account  of repairs.  I need not drag myself  to evaluate the entire evidence on record  on the  point.  In instant case, because  of the remand, we have fortunately a pronouncement of a concurrent finding of fact on four occasion by the two Courts below.  It is also pertinent to note in this context that there  exists a final finding  between the parties that the rent for the said two months is not  paid by the defendants and the  defendants is suffering a decree for money no that count.  Having regard to the Legislative changes  and the wording of S. 100, C. P. C. suffice it to say that the issue raised and argued is not a question of law, much less a substantial question of law.  The concurrent finding repeated twice over by the two Courts below, I take, is binding and hold that the defendants did not pay the rent of the two months for which the cheque  dated 15-10-1973 was  issued, which admittedly bounced and was  dishonoured.\n<\/p>\n
        12.  I would, therefore, proceed to consider  the other submission with the proved and accepted  position that the defendants failed to prove that he paid Rs. 400\/- to the plaintiff on or before 15-10-1973.\n<\/p>\n
        13.  Shri. J. N. Chandurkar, the learned counsel for the appellant, submitted that with the finding already pronounced by Tulpule. J. in the remand order that the order of the Rent Controller, in fact. meant granting of permission on default of any of two  payments under the two cheques, nothing now survives for consideration and the appeal must be allowed and the claim for ejectment be decreed.\n<\/p>\n
        14.  Shri. K. High. Deshpande, the learned counsel for respondent, relying upon Gopinath Shukul v. Sat Narain Shukul (AIR 1923 All 384).  Upendra Lal v. Jogesh Chandra ()  and Gogula Gurnumurthy v. Kurimeti Ayyappa<\/a> , submitted that an order of remand under Court. 41,  R. 25, C. P. C., in fact, decides nothing and the finding  to Tulpule. J., while remanding the case is not conclusive between the parties and it can be reopened at the time of final determination of this appeal.\n<\/p>\n
        15. The position of law, to my mind, is abundantly clear.  The finding of Tulpule, J. recorded in the remand order, under Court. 41, R. 25, C. P. C., though entitled to  some  weight, is certainly neither final between the parties nor binding on me.\n<\/p>\n
       16.  This, therefore, brings me to the true interpretation and meaning of the order of the Rent Controller passed in terms of the compromise.  The compromise petition filed before the Rent Controller is not before us.  What is before us is the order of the Rent Controller which there is reason to believe, was passed on the basic  of the terms of the compromise between the parties.\n<\/p>\n
       17.  It is pointed out by Shri. J. N. Chandurkar, the learned Counsel for the appellant, that in the plaint para 2.  this is what was a alleged:\n<\/p>\n
          “It was a condition of the compromise that if any of the  cheques was dishonoured by the bank on the due date permission to determine the tenancy of the defendants would be deemed to have been granted”.\n<\/p>\n
        18. In the written-statement, the defendants, it is  pointed out, replied there allegations in this way:\n<\/p>\n
         “It is admitted that in case any of the cheque was dishonoured on due date. this tenancy of the defendants would be deemed to have been  determined and the permission of the Rent Controller accordingly granted”.\n<\/p>\n
         19.  I wonder, why the trial Court framed issue No. 3 in the  teeth of such a state of pleading.  It is submitted on behalf of the respondent that the admitted position is about  what was agreed between the parties before the Rent Controller and not about the interpretation and construction of the final order that was passed by the Rent Controller.  Now. if  it was  agreed that  any default  was to enable the landlord to determine the tenancy and if the final order passed by the Rent Controller is also  capable Court such an interpretation, there is no reason why such  an interpretation should not be  put, calling in aid the intention of the parties and the fact that the Court purported to  pass that order  in pursuance of the agreement between the parties. In this context and also under the circumstance of the case.  As such the expression “………………if they are dishonoured” must be construed not as meaning “……..if both are dishonoured” but  “if any is dishonoured”.  With respect, I agree with  the observations of Tulpule J. and set  aside the finding of High two Court below.\n<\/p>\n
        20. The defendants, therefore, having not paid the amount of the second cheque. permission must be deemed to have been granted to the plaintiff and  the claim  for ejectment should have been decreed.\n<\/p>\n
        21.   In the result, the second appeal is allowed with costs though out.  The order of dismissal of the claim of the plaintiff for ejectment is hereby set aside  and his claim for possession is hereby decreed.\n<\/p>\n
22. Appeal allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Kastruchand vs Qazi Syed Saifuddin on 6 July, 1983 Equivalent citations: AIR 1983 Bom 360 Bench: Waikar JUDGMENT 1. This is plaintiff’s second appeal, both the Courts below having dismissed his claim for ejectment and possession. 2. Admitted facts are that the defendants was the monthly tenant of the plaintiff on occupation […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-114905","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nKastruchand vs Qazi Syed Saifuddin on 6 July, 1983 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kastruchand-vs-qazi-syed-saifuddin-on-6-july-1983\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kastruchand vs Qazi Syed Saifuddin on 6 July, 1983 - 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