{"id":216129,"date":"1971-12-09T00:00:00","date_gmt":"1971-12-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kiran-bahadur-singh-vs-harikrishan-mathur-and-ors-on-9-december-1971"},"modified":"2017-09-03T13:38:13","modified_gmt":"2017-09-03T08:08:13","slug":"kiran-bahadur-singh-vs-harikrishan-mathur-and-ors-on-9-december-1971","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kiran-bahadur-singh-vs-harikrishan-mathur-and-ors-on-9-december-1971","title":{"rendered":"Kiran Bahadur Singh vs Harikrishan Mathur And Ors. on 9 December, 1971"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Kiran Bahadur Singh vs Harikrishan Mathur And Ors. on 9 December, 1971<\/div>\n
Equivalent citations: AIR 1972 All 369<\/div>\n
Author: K Asthana<\/div>\n
Bench: K Asthana<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 K.B. Asthana, J.<\/p>\n
 1. This is a defendant tenant’s appeal from a decree of the appellate Court evicting him from a house in suit and awarding arrears of rent and damages in favour of the plaintiffs landlords. The trial Court dismissed the plaintiffs’ suit but the lower appellate Court by reversing the trial Court decreed the suit.\n<\/p>\n
 2. Sri Gopal Behari, learned counsel appearing for the defendant appellant agitated a large number of questions of law in support of the appeal, but I think for the purpose of deciding this appeal I need not notice all the grounds urged in support of the appeal except the one on the question of the defendant tenant having failed to pay the arrears of rent demanded by the plaintiffs-landlords by a notice under Section 3 (1) (a) of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, as my answer to that question would be conclusive of the appeal.\n<\/p>\n
 3. Admittedly the plaintiff landlords who are real brothers inherited the house in dispute from their ancestors, and so did the defendant tenant inherited the tenancy from his predecessors, father and uncle. It is further admitted that beside the defendant tenant his brother is also living in the house in suit. On 15-11-1966 a composite notice signed by a lawyer on behalf of the plaintiffs landlords addressed to the defendant tenant was sent demanding the payment of arrears of rent within one month of the receipt thereof, terminating the tenancy and calling upon the tenant to vacate the house on the expiry of one month from the receipt thereof. This notice was served on the tenant on 17-11-1966. On 9-12-1966 a letter was sent by the tenant to the landlords informing them that the arrears of rent had been remitted by a money order on 7-12-1966 to one of the landlords on his Delhi address. In this letter the tenant admitted that he was the tenant of the landlords since the tine of the grandfather of the landlords This letter was received by the landlords on 15-12-1960 but they filed the suit giving rise to this appeal on the allegation that the tenant having defaulted in payment of the arrears of rent within one month of the service of notice and his tenancy having been terminated, he was liable to be evicted and pay arrears of rent and damages. It was alleged in the plaint that no money order was ever received by the landlords in payment of the arrears demanded. The suit was contested by the tenant on the pleas, inter alia, that the suit not having been brought by all the landlords was not maintainable, that the suit having been brought for eviction of only one of the en-tenants was defective and liable to he dismissed; that a money order dated 7-12-1966 was sent to one the landlords at his Delhi address after the tender of the amount to the Karinda of the landlords at Agra on 6-12-1966 had been refused; that in any case on 16-12-1966 the whole amount of arrears was paid to Smt. Manorani, one of the co-owners of the house in suit and thus the notice of demand of arrears was complied with and the suit was barred by Section 3 of the U. P (Temporary) Control of Rent and Eviction Act.\n<\/p>\n
 4. As already said above, I am not inclined to consider the arguments advanced on behalf of the appellant on the question of maintainability of the suit though there may be some tenability in those arguments since I have, on a consideration of the material on record and after hearing the able arguments of the learned counsel for the bar, come to the conclusion that the findings of the lower appellate Court on the question of compliance by the tenant with the notice of demand of arrears of rent are untenable and liable to be reversed. The first point which I considered was as to the correctness of the finding of fact recorded by the court below on the factum of the arrears of rent having been tendered to Dcodutt Gupta, the admitted Karinda of the landlords at Agra on 6-12-1966. Deodutt Gnpta was produced as a witness by the plaintiffs landlords. He stated that neither the tenant nor anybody on his behalf came and tendered to him the arrears of rent on 6-12-1966. The defendant tenant himself appeared as a witness and stated that on 6-12-1966 he had gone to the house of Karinda at Agra and tendered the arrears of rent to Deodutt but he declined to accept the same for the reason that notices had already been served upon the tenant by the landlords and advised that the tenant should deal with the landlords direct in the matter. Mr. G. N. Shiromani, an Advocate and colleague of the defendant tenant at the bar in Agra, also appeared as a witness and corroborated the statement of the defendant The learned Mun-sif believed this evidence adduced on behalf of the defendant tenant and discarded the testimony of Deodutt. A finding was recorded by the learned Munsif that on 6-12-1966 the defendant tenant tendered the arrears of rent to the Karinda of the landlords who refused to accept the same. The learned Judge of the lower appellate Court preferred to rely on the evidence of Deodutt, the Karinda, and rejected the testimony of the defendant and his witness Sri G. N. Shiromani. The finding was reversed and it was held that no tender of any arrears of rent was made by the defendant tenant on 6-12-1966 to the Karinda of the landlords at Agra. This is a finding of fact binding in second appeal unless it were shown that it was vitiated by any error of law or procedure.\n<\/p>\n
 5. Sri Gopal Behari for the ap
\npellant contended that the above rinding
\nwas vitiated and not binding in second
\nappeal inasmuch as it was arrived at not
\non the basis of a judicial scrutiny and
\nassessment of the material on record but
\non the basis of arbitrary, capricious and
\nprejudicial approach adopted by the learn
\ned Judge, Sri H. C. Saxena, who allowed
\nhis mind to be influenced by an unfortu
\nnate and wrong impression prevailing with
\nhim as regards the lawyers and legal prac
\ntitioners as a class. It so happened that
\nthe defendant tenant and the witness Sri
\nG. N. Shiromani are practising lawyers in
\nthe courts at Agra. The submission was
\nthat the testimony of the defendant and
\nof his witness has not been rejected on
\nmerits hut on consideration entirely extra
\nneous because they belonged to a class of
\npersons against whom in the mind of the
\nlearned Judge there appears to be great
\nprejudice. I have given my careful consi
\nderation to this submission of the learned
\ncounsel. I am constrained to observe that
\nSri H. C. Saxena, the learned Second Addi
\ntional Civil Judge, Agra, who heard the
\nappeal has betrayed a trend of mind, for
\ntunately rarely found in our subordinate
\njudicial officers, which cannot be counte
\nnanced by any Judge of fact and law.\n<\/p>\n
Some of the observations made by the
\nlearned Judge quoted below not only
\nshowed that the learned Judge has a jaun
\ndiced view of lawyers” life and character
\nbut also showed that the learned Judge
\nlost his balance of mind as he was dealing
\nwith the case of a lawyer tenant. At one
\nplace in his judgment the learned Judge
\nobserved:\n<\/p>\n
  “When an Advocate is a party in a suit he can sometimes take more false pleas than an ordinary litigant can think of.”\n<\/p>\n
 Next   the   learned   Judge   observed:\n<\/p>\n
  “Similarly a friend who is in the same profession can also oblige his colleague by stating facts to suit his case.”\n<\/p>\n
 At yet   another   place  the  learned  Judge observed:\n<\/p>\n
  “The ejectment from a house which is with a defendant for about fifty years on a comparatively nominal rent is certainly a thing for which even an Advocate defendant or his colleague in his profession can state a wrong fact to somehow avoid an ejectment.”\n<\/p>\n
 6. As if not being satisfied with the above condemnation of the lawyers and their character the learned Judge added yet another condemnation:\n<\/p>\n
  “After a suit for ejectment is filed, it is quite natural that the defendant should find ways and means to avoid ejectment decree and as such he can make pleas of oral tender of rent and try to get it proved also.”\n<\/p>\n
 7. One need not carefully scrutinise and consider the above observations to find out how the mind of the learned Judge was working. The thing speaks for itself. There is absolutely no justification for a Judge to bring into a judgment which is a solemn judicial document, his jaundiced impressions about a class of men of matters and then after generalising the same make use of them in assessing evidence on record. The defendant or his lawyer friend, if he can be called so were not on trial as to their character. The learned Judge of the court below who was the final court of fact, ought to have strictly applied himself to scrutiny and assessment of their evidence and after finding some thing intrinsic in their evidence pointing to falsehood or untruth then should have discarded them, more so when the trial Court before whom they appeared and who had studied their testimony had to act upon it. Sri Gopal Behari was on strong ground when he submitted that the whole estimate of the learned Judge of the lower appellate Court had been coloured by the lopsided and exaggerated personal opinion which the learned Judge has in regard to the lawyers and members of the legal profession. If at all I can give any credit to Sri Saxena for making these observations it is that at least he has been frank in his abuse to the lawyers. I have been also a member of this honourable profession and I do not share the experience which the learned Judge of the court below seems to have that a lawyer when-. ever he is involved in litigation will utter falsehood and his lawyer friends will coma to support him and will perjure themselves, Irrespective of the station in life of a witness and his profession, unless that is relevant for the enquiry, a court of law is under a duty to scrutinise his testimony given on oath on merits and not on prejudice. I have no hesitation in observing that Sri Saxena failed in his duty in applying his judicial mind to the evidence of the defendant and his witness.\n<\/p>\n
 8.        The     learned    counsel     for the plantiffs   respondents   did   not      justify    the general   observations   made   by   tne   learned Judge.    He   pointed  out  that  the      learned Judge   did   consider   the   evidence   of     the said  two  witnesses   on  merits  and  he     .did not think  it worthy of reliance  on the  probabilities.    It   was   pointed  out  that   Sri  G. N.   Shiromani  was   a  relation  of  the   defendant   and   in   his   cross-examination   he   had not been  able   to  answer material   questions asked.    It   was    further   submitted   that the defendant  himself being  an   interested  person  his   evidence   has   been   rightly  rejected by the   court below, he having not referred to   the   incident   of   6-12-1966   in  his  letter to  the   landlord dated   9-12-1966.    Had  the learned   Judge   not   preferred   the  discussion in   his   judgment   on   this   question   of   fact by   the    observations    mentioned   above,      I would   have    been   inclined   to   agree   with the   submission   of   the   learned   counsel   for the respondent   that if   a court   of  fact disbelieves   a  witness  on   a   ground  which  can be   said   to   be   judicial   merely  because   an appellate    Court   who    is   bound   by   finding of  fact  thinks   that  the      grounds   were  insufficient   will   not   interfere   with   the   estimate,  but  here  is  a  case   where it   is  difficult   to   disentangle   the  prejudice  from  the reality  or   the  subjectivity  from  the  objectivity.    Two   cases   of   Calcutta   High   Court Jaggurnath   Deb       v.       Mahomed   Mokeen, (1872)   17 Suth  WR  161  and J. P.   Wise v. Musst.   Rubba      Khatoon,     (1873)   19   Suth WR   299,   furnish   instances  where   a  higher court   bound  by  findings   of fact   held   that a   finding   of  fact   by   a   lower      appellate Court   may   be   interfered   with   if  the   reasonings   and   the  views   upon  which      that finding   is   based   are   erroneous   in   law   and it is  an error of law to   reject the evidence of  certain  class   of   persons   merely  because they belonged to   that  class and accept the evidence   of another set of witnesses merely because  they   belonged   to   another   particular class.   Sri  Saxena,  the   learned  Judge   of the   lower   appellate   Court,   in   the     instant case   has   rejected   the   evidence of the   defendant    and   his   witness   substantially   for the   reason   because  they  belonged  to     the legal  profession.\n<\/p>\n
 9. On the probabilities, I think there is nothing inherently improbable in the version of the defendant and his witness. It is the admitted case of the parties that Deodutt was the Karinda of the landlords at Agra and used to realise the rent from the defendants. It was natural conduct on the part of the defendant to go to him and to tender the arrears of rent as soon as possible after the service of the notice of demand. There is nothing inherently wrong in the stand that the defendant who is a practicing lawyer went to meet the Karinda who as the evidence shows used to come and collect rent from the defendant. There is further nothing unnatural in the reply which the Karinda gave that the landlords having served the notice on the defendant the matter should be settled between the defendant and the landlords directly. No Karinda would have been prepared to take the responsibility upon himself hi such circumstances. Sri Shiromani, the witness for the defendant testified to the fact that the episode took place before him and he stated the facts which he remembered. Nothing is shown from the cross-examination of Sri Shiromani that he had no business to be present at the spot. Shiromani would be a natural witness. Simply because Shiromani was not able to give satisfactory answer to some questions of detail as to what was the exact time when the tender was made, what was the exact spot where the tender was made, will not make him an untruthful witness. The fact that the two witnesses were related to each other, though not directly, should not detract from the credibility of Shiromani. Much was tried to be made out on behalf of the respondent that had the story of tender of the arrears to Deodutt been true, it must have found mention in the letter of the defendant dated 9-12-1966 addressed to tha landlords. This circumstance seems to have influenced the learned Judge of the court below. By itself this circumstance is not so strong as to overshadow the testimony itself, but at the same time it cannot be said to be irrelevant. How the mind of the learned Judge of the Court below would have worked had he not suffered from prejudice against the lawyer witnesses, it is difficult to predicate. Whether a circumstance not so weighty by itself would have influenced his mind to reverse the estimate of the trial Court when considered with a normal bent of mind, is again a matter on which it is difficult to form an opinion. Sri Gopal Behari tried to explain away this circumstance by suggesting that the non-acceptance by the Karinda in the circumstances would have appeared so natural and normal that it would not have been regarded by defendant as of such importance so as to be intimated to the landlords. However, since the learned Judge of the lower appellate Court completely went off the tangent in assessing and estimating the evidence, I am unable to affirm his finding. But at the same time I think it necessary that I should record a finding of my own and I would prefer to act on the findings recorded by the trial Court on this question of fact.\n<\/p>\n
 10. The next point which was urged in connection with the question of compliance with the notice of demand of arrears of rent was that the defendant having paid the arrears of rent to Smt. Mano-rani, one of the co-owners, on 16-12-1966, complied with the notice under Section 3 (1) (a) of the Rent Act and the suit of the plaintiff was liable to be dismissed. The trial Court recorded a finding in favour of the defendant on this question But tha lower appellate Court on a very specious reasoning held that payment to Smt. Manorani by the defendant was not a payment to the landlord. The learned Judge-of the court below reasoned that since the defendant in reply to the notice of the landlords stated that the persons on whose behalf the notice was sent were the landlords and he was their tenant he could not, in law, claim that Smt. Manorani was also the landlady as she was not one of those persons on whose behalf the notice of demand was sent. This reason does not appeal to me. Firstly, the learned Judge of the court below took a very pedantic view of the words used in the reply of the defendant dated 9-12-1966, paper 58-C oa record. I do not find any thing in that reply which would estop the defendant from claiming that besides the four brothers there are other co-owners of the house in suit. It is the admitted case of the plaintiffs themselves that Smt. Manorani is one of the persons who had inherited the house as an heir. She is a co-owner — She is the daughter of the sister of the four plaintiffs. The house has been inherited by them from their ancestors. All o them would be tenants-in-common being co-owners. In law Smt. Manoraui would be a co-owner. Therefore, any rent paid to her by the tenant of the house in suit of which she is the co-owner would be a legal discharge of the liability of the tenant. See Hiralal Neksi v. Agarchand Gorelal, AIR 1957 Madh Pra 5. It is proved that more than the amount of the arrears due was paid to Smt. Manorani on 16-12-1966 by the defendant tenant. To that effect there is a concurrent finding. There is no doubt in my mind that the notice of demand for arrears of rent under Section 3 of the Act was complied with by the defendant tenant and he was entitled to the protection of Section 3 of the said Act.\n<\/p>\n
 11. The third point raised was
\nthat a presumption should be drawn under
\nSection 114 of the Indian Evidence Act
\nthat the money order sent by the defendant
\ntenant on 7-12-1966 would have been
\ntendered by the postman to the landlord
\nwithin three or four days and thereby the
\ndefendant would be deemed to
\nhave performed his part of the
\nliability of tendering the rent
\nwithin one month of the receipt of the
\nnotice. Reliance was placed on two deci
\nsions, of this Court in the case of Smt.\n<\/p>\n
Parmeshwari Devi v. Abrar Husain, AIR
\n1971 All 22 and Abdul Baqi v. Aklaq
\nAhmad, 1962 All LJ 1146. Since I have
\nheld above that payment of arrears of rent
\nto Smt. Manorani, one of the co-owners,
\nwithin one month of the receipt of the
\nnotice of demand, was in compliance with
\nthe notice under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, I need not consider this point, it not being necessary.\n<\/p>\n
 12. The result is that this appeal is allowed, the judgment and decree of the court below is set aside and that of the court of first instance is restored with costs throughout.<\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Kiran Bahadur Singh vs Harikrishan Mathur And Ors. on 9 December, 1971 Equivalent citations: AIR 1972 All 369 Author: K Asthana Bench: K Asthana JUDGMENT K.B. Asthana, J. 1. This is a defendant tenant’s appeal from a decree of the appellate Court evicting him from a house in suit and awarding arrears […]<\/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":[9,8],"tags":[],"class_list":["post-216129","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nKiran Bahadur Singh vs Harikrishan Mathur And Ors. on 9 December, 1971 - 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\/kiran-bahadur-singh-vs-harikrishan-mathur-and-ors-on-9-december-1971\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kiran Bahadur Singh vs Harikrishan Mathur And Ors. on 9 December, 1971 - 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