IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 2.3.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1016 of 2007 1.Sanjaykumar Chordia 2.Ajaykumar Chordia ... Appellants/Defendants vs. 1.Mahaveer & Company HUF by its Kartha Mahaveerchand Bagmar 2.Mrs.Manjula Devi .... Respondents/Plaintiffs This second appeal is filed U/Sec 100 of CPC against the judgement and decree dated 11.7.2007 passed by the III Additional Judge, City Civil Court, Chennai in A.S.No.573 of 2005 reversing the judgement and decree dated 13.9.2005 passed by the XIV Asst.City Civil Court, Chennai, in O.S.No.574 of 1999. For Appellants : Mr.R.Subramanian For Respondents : Mr.R.Thiagarajan JUDGMENT This second appeal is focussed by the defendants, inveighing the judgement and decree dated 11.7.2007 passed by the III Additional Judge, City Civil Court, Chennai, in A.S.No.573 of 2005 reversing the judgement and decree dated 13.9.2005 passed by the XIV Asst.City Civil Court, Chennai, in O.S.No.574 of 1999, which was filed for recovery of possession of the suit property and for damages etc. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. Narratively but precisely, broadly but briefly the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: https://hcservices.ecourts.gov.in/hcservices/ (a) The respondents herein as plaintiffs filed the suit seeking the following reliefs: "to pass judgement and decree against the defendants- a) directing the defendants to deliver vacant possession of the premises in the second floor at No.36, Thirupalli Street, Sowcarpet, Chennai-79, morefully described in the plaint schedule; b) directing the defendants to pay the plaintiffs a sum of Rs.1000/- per day by way of damages for illegal and unlawful occupation of the suit premises from January, 1999 till the date of handing over vacant possession; c) directing the defendants to pay the plaintiff the arrears of rent totalling to Rs.18,000/- (from 1.10.1998 to 31.12.1998) and arrears of electricity charges of Rs.3,829/- in all Rs.21,829/-; d) directing the defendants to pay the plaintiffs the costs of the suit." (extracted as such) (b) Written statement was filed by the defendants, resisting the suit. Whereupon, the trial Court framed the issues. (c) On the side of the plaintiffs, the first plaintiff examined himself as P.W.1 and marked Exs.A1 to A25. On the defendants' side, the 1st defendant examined himself as D.W.1 and marked Exs.B1 to B19. The handwriting expert was examined as C.W.1 and Exs.C1 to C7 were marked as Court documents. (d) Ultimately, the trial Court dismissed the suit, as against which, the appeal was filed. Whereupon the first appellate Court reversed the findings of the trial Court and decreed the suit. 4. Challenging and impugning the judgement and decree of the first appellate Court, the second appeal has been filed by the defendants on various grounds inter alia thus: (i) The first appellate Court failed to adhere to Order 41 Rule 31 of C.P.C. in rendering its findings quite antithetical to the reasoned findings given by the trial Court. (ii) While the first appellate Court responding to the prayer of the plaintiffs to send Ex.B9 for expert opinion, so as to verify the disputed signature of the first plaintiff, it failed to send along with it the admitted ante litem motam signatures of the first plaintiff available on record. The sample signatures of the first plaintiff taken before the Court and the signatures found in Vdakalat and affidavit should not have been relied on by the expert for giving his opinion as though the disputed signature is a forged one. https://hcservices.ecourts.gov.in/hcservices/ (iii) Exs.B3, B6, B11 and B12 clinched the issue and they proved unambiguously and unequivocally that the defendants took on lease two portions, so as to say, the ground and the second floor belonging to the plaintiffs for a total rent of Rs.6,000/-, so to say, at the rate of Rs.3000/- p.m. for each floor and for that alone Rs.50,000/- each totalling one lakh was paid as advance. But all these facts have not been considered by the first appellate Court. (iv) The self-contradictory statements made by the plaintiffs were not considered by the first appellate Court. (v) The Tamil Nadu Buildings (Lease and Rent Control) Act even though was very much applicable to the demised premises, the first appellate Court erroneously held as though the building concerned is a new building and it is exempt from the purview of the said Act. 5. Accordingly, the following substantial questions of law are found suggested in the second appeal. "a) Whether the judgement of the lower appellate Court is vitiated due to the fact that the lower appellate Court has not given its reasons for not agreeing with the findings/conclusions of the trial Court? b) Whether the lower appellate Court was right in holding that the appellants herein cannot challenge the finding on the maintainability of the suit without filing a cross-objection. c) Whether the lower appellate Court was right in accepting the report of the handwriting expert more so when the comparison was not made with signatures in contemporaneous documents but with subsequent documents. d) Whether the lower appellate Court was right in granting a decree for eviction without deciding on the validity of the notice of termination?"(extracted as such) 6. After hearing both sides and considering the materials available on record, I am of the view that the following substantial questions of law could be framed for consideration: (i) Whether the first appellate Court erroneously held as though the premises concerned is exempt from the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act, by misinterpreting and misreading the evidence on record? (ii) Whether the first appellate Court failed to take into consideration the documentary and oral evidence adduced on the side of the defendants and more specifically Exs.B3, B6, B11 and B13? (iii) Whether the first appellate Court committed error in relying https://hcservices.ecourts.gov.in/hcservices/ upon the alleged unreliable opinion of the handwriting expert which emerged out of comparing sample signatures, which were not ante litem motam in nature, with the disputed signature? (iv) Whether the first appellate Court, without adhering to Order 41 Rule 31 of C.P.C. reversed the findings of the trial Court. (v) Whether the first appellate Court was not justified in awarding damages for use and occupation by enhancing the old rate of rent by 25%, in the absence of any clinching evidence? (vi) Whether there is any perversity or illegality in the judgement of the appellate Court. 7. Both sides took notice of the above substantial questions of law and advanced arguments. 8. Piloting the arguments on the side of the appellants/defendants, the learned counsel would put forth and set forth his submissions, which could succinctly and precisely be set out thus: (i) The first appellate Court is expected to take into consideration the reasons given by the trial Court in its judgement and while reversing the findings of the trial Court, reasons should be been given by the first appellate Court as to how such findings of the lower Court are wrong. However, in this case, the first appellate Court did not do so. (ii) The first appellate Court was not justified in obtaining sample signatures before the Court when already ante litem motam admitted signatures of the first plaintiff were available on record. (iii) The handwriting expert's opinion was not a proper one to be relied on. (iv) The plaintiffs simply denied, so as to suit their plea that Exs.B3, B6 and B11 were not at all sent by the defendants to the plaintiffs. (v) The contradictory statements given by the first plaintiff in his deposition also was over looked by the first appellate Court. Anticipating that the ground floor also would be handed over to the defendants by the plaintiffs as promised earlier, the former were paying rent for that ground floor also and that was why for both the floors, namely, the ground and the second floor, totally a sum of Rs.6,000/-p.m. was sent. (vi) The originals of Ex.A15 to A21-the receipts signed by the first plaintiff were sent in a bunch in the cover-Ex.B2 and they were returned by the defendants in person to the plaintiffs on the ground that those https://hcservices.ecourts.gov.in/hcservices/ receipts did not reflect the realities, as maliciously it was found incorporated therein as though those rents were paid for only the second floor. (vii) Ex.A24-the Temporary Assessment of House tax notice and Ex.A14 would not in any way evidence that the building itself was a new building, exempt from the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act. (viii) The incongruities as found embodied in the very plea of the plaintiffs as though the second floor alone was rented out for a sum of Rs.6000/- in favour of the defendants, were not considered by the first appellate Court. Accordingly, the learned counsel for the appellants/defendants prayed for allowing the second appeal and for restoring the judgement and decree of the trial Court. 9. Denying and impugning, gain saying and challenging and in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the defendants, the learned counsel for the plaintiffs would advance his arguments which could pithily and precisely be set out thus: (a) The Rent Controller, in the earlier proceedings initiated by D1, held that the building was exempt from the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act, as it happened to be a new building and the connected R.C.A. also was dismissed, confirming the order passed by the Rent Controller, over which there was no C.R.P. filed. Hence, the competent authorities under the Tamil Nadu Buildings (Lease and Rent Control) Act held that the demised premises did not come within the purview of the Act and as such, it is not open for the D1 to rack up the same issue before the Civil Court. (b) Trial Court as well as the first appellate Court gave their findings that the demised premises was exempt from the purview of the Act, as it happened to be a new building, relating to which, no cross appeal or cross-objection was filed by the defendants before the first appellate Court. (c) Exs.B3, B6 and B11-the letters were not received by the plaintiffs and those are all self-serving documents having no probative force, fabricated by the defendants themselves. (d) The first appellate Court appropriately and appositely, correctly and legally obtained the sample signatures of the irst plaintiff as per Section 73 of the Indian Evidence Act and sent those sample signatures along with the sample signatures available in the vaklat as well as in the affidavit of the plaintiffs and in such a case, absolutely no wrong procedure was adopted by the first appellate Court https://hcservices.ecourts.gov.in/hcservices/ in sending those documents and in obtaining the expert opinion. (e) The hand writing expert was examined as C.W.1 and he, on oath clearly and categorically deposed in support of the opinion given by him to the effect that the disputed signature found in Ex.B9 was not that of the first plaintiff and he also gave reasons to fortify his opinion. The first appellate Court also applied its mind and accepted such findings, warranting no interference in second appeal. (f) Exs.A2, A6, A11 to A21 would all exemplify and demonstrate, prove and establish that the defendants took on lease the second floor only for a monthly rent of Rs.6000/-, after paying a total advance of Rs.1,00,000/- in the form of two cheques. (g) Inasmuch as the defendants did not pay the electricity charges and water charges, the plaintiffs were constrained to pay such charges and claimed reimbursement, which was correctly and justly ordered in favour of the plaintiffs by the first appellate Court. (h) Regarding Ex.B11 is concerned, there is no reference to it in the written statement at all. The contention of the defendants that the originals of Ex.A15 to A21 in a bunch were sent in a cover to the first defendant, is also not found set out in the written statement. Any amount of evidence without the back up of the pleadings should be eschewed. (i) The first appellate Court thread bare discussed the pros and cons of the matter and disagreed with the view taken by the trial Court, which was carried away by the self-serving documents of the defendants, in dismissing the suit. (j) The termination notice was properly given by the plaintiffs. As per the amended Section 106 of the Transfer of Property Act, the suit itself was filed 15 days after the receipt of such notice by both the defendants in respect of the said residential suit premises. Accordingly, the learned counsel for the plaintiffs would pray for the dismissal of the second appeal. Substantial Question of Law (i): 10. Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act exempts new buildings from the purview of its operation for a period of five years. 11. Indubitably and indisputably, D1 filed RCOP for the purpose of getting restored the electricity connection and at that time, the Rent Controller himself gave a finding, after hearing the first plaintiff herein that the said building is exempt from the purview of the said Act, https://hcservices.ecourts.gov.in/hcservices/ because it happened to be a new building, over which, R.C.A.was filed for nothing but to be dismissed by the appellate Court confirming the findings given by the Rent Controller. 12. In my considered opinion, once the Rent Controller and the appellate authority give a finding that a particular building is exempt from the purview of the Act, because it happened to be a new building, then it cannot be challenged in the civil Court. 13. If an authority under the special enactments holds that a particular case does not fall within its purview, then it would not open for the civil Court to hold to the contrary that the statutory authority is having jurisdiction over that matter. As such, if viewed, it is clear that the contention of the defendants herein that only the Rent Controller has got jurisdiction in this case relating to eviction, is a mis-conceived one. 14. Be that as it may, even on merits, both the civil Courts below, by placing reliance on Ex.A24-the temporary assessment notice and Ex.A14-the demolition notice, held justifiably and correctly that the then existed old building was demolished and the new building was erected in that place and as such, in second appeal, this Court can not give any contrary finding quite antithetical to the concurrent findings given by both the Courts below on that point in the absence of any perversity or illegality in their finding. 15. The learned counsel for the appellants/defendants also would submit plausibly and acceptably that temporary assessments are made only relating to new buildings. 16. Incontrovertibly and ungainsayably no cross-appeal or cross- objection was filed by the defendants before the first appellate Court when the plaintiffs' appeal was pending before it and in such a case as per the dictum of the Hon'ble Apex Court reported in 2010(7) SCC 717 [ Laxman Tatyaba Kankate and another vs. Taramati Harishchandra Dhatrak] and as found enunciated in the following excerpts, "24. It is a settled principle of law that before the first appellate court, the party may be able to support the decree but cannot challenge the findings without filing the cross-objections. ..........................." the defendants now in this second appeal cannot agitate over the finding of both the Courts below that the suit property herein was exempt from the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act. 17. Wherefore, in the result, I am of the considered view that the contention on the side of the appellants/defendants that the building concerned was not a new building and that it attracted only the Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Buildings (Lease and Rent Control) Act, is not at all legally tenable. Accordingly, the substantial question of law (i) is decided as against the defendants and in favour of the plaintiffs. 18. Substantial Questions of Law (ii) to (iv): A recapitulation and 'resume' of relevant facts absolutely necessary for disposal of this second appeal would run thus: (a) The plaintiffs on the one side and the defendants and their father on the other side were once friends, it appears, admittedly. On the one side the plaintiffs would contend that they agreed to lease out only the second floor for a monthly rent of Rs.6000/- after receiving an advance of Rs.1,00,000/-(one lakh) repayable without interest, at the time of vacating the premises by the defendants. (b) However, the contention on the side of the defendants was that the ground floor as well as the second floor was agreed to be leased out by the plaintiffs in favour of the first defendant for a monthly rent of Rs.3000/- each and that too, after receiving a sum of Rs.50,000/- as advance, for each of the portions. 19. The contention on the side of the defendants was that in the ground floor certain carpentry and painting work were to be undertaken by the plaintiffs and that alone resulted on the part of the plaintiffs in delaying the handing over of the ground floor in favour of the defendants; however, subsequently, the plaintiffs turned turtle and had a volte face and dished out a plea as though they agreed to lease out only the second floor and not the ground floor. 20. In support of the contention of the appellants/defendants, they would rely mainly on Ex.B3, Ex.B6 and Ex.B11. It is therefore just and necessary to analyse those documents. 21. Ex.B3 is the letter dated 3.3.1998 written by the first defendant to the plaintiffs incorporating the terms and conditions of the lease relating to the said two floors. The plaintiffs would gainsay the receipt of such letter and according to the plaintiffs, it is a self- serving letter. 22. I recollect the following maxims: (i) Affirmatis est probare – He who affirms must prove. (ii) Affirmanti, non neganti incumbit probatio – The burden of proof lies upon him who affirms, not upon one who denies. The above sister maxims would evince that the burden is on the person who affirms it. Here, the defendants affirms that it was D1, who sent Ex.B3 to the plaintiffs; but the former could not prove it. On the defendants side, they seek to explain by pointing out that it was handed over in https://hcservices.ecourts.gov.in/hcservices/ person. But the plaintiffs would gainsay the same. No acknowledgement endorsement also was found obtained in Ex.B3. The normal conduct of any one is that if a letter or a document is prepared with a carbon copy then after parting with the original, in the carbon copy concerned the acknowledgement endorsement should be obtained or a separate receipt or acknowledgement should be obtained. But in this case, that was not done so by the defendants. 23. Ex.B6 is the letter dated 12.5.1998 purported to have been written by the first defendant to the plaintiffs and he claims to have despatched it as per a postal receipt. However, the plaintiffs would deny the receipt of such letter. On the other hand, the plaintiffs would contend that the demand draft-Ex.A16 alone was found in the said cover sent as per the postal receipt. 24. In this connection, the learned counsel for the defendants would draw the attention of this Court to the cross-examination of P.W.1, the following are the concerned excerpts: @/ // / // / gpujpthjpfs; gy fojk; vGjp cs;shh;fs; vd;W brhd;dhy; rhpay;y/ xnu xU Kiw jhd; fojk; vGjp ,Uf;fpd;whh;fs;/ 13/5/98 md;W fojk; vGjp miu ehd; bgw;W bfhz;ljw;fhd m";ry; xg;g[if ml;il k;lLk; gp/rh/M/1 MFk;/ 14/9/98 md;W gjpt[ jghy; K:yk; xU brf; te;jJ/ 2/11/98 y; ve;jtpjkhd fojKk; ,y;yhky; fth; kl;Lk; vdf;F te;jJ/ / / / / / 25. As such, placing reliance on the said answer given by the first plaintiff as P.W.1 during cross-examination, the learned counsel for the defendants would develop his argument that this is a clear admission on the part of the first plaintiff relating to the receipt of the original of the letter dated 12.5.1998, i.e. the original of Ex.B6. 26. However, the learned counsel for the plaintiffs would draw the attention of this Court to the cross-examination of P.W.1 on 21.7.2005 and an excerpt from it would run thus: @gp/rh/M/1y; 13/5/98 y; xU ouhg;l; kl;Lk; ehd; bgw;nwd;/ mjw;F ve;j khjj;jpw;F mDg;gg;gl;lJ vd;W ehd; nfl;ftpy;iy/ thlif ml;thd;!; bfhLf;Fk;nghJ 1/3/1998 y; xU fthpy; byl;lh; bfhLj;jhh;/ mJ vd;dplk; nehpy; bfhLf;fg;gl;ljhFk;/ // // / / / / /@ placing reliance on the same, the learned counsel for the plaintiffs would submit that the first plaintiff clarified, during cross-examination on 21.7.2005 that only Ex.A16-the demand draft was received by him as per the said postal receipt. 27. In this connection, I recollect the trite proposition of law https://hcservices.ecourts.gov.in/hcservices/ that preponderance of probabilities would govern the adjudication in civil cases and it is also well settled that the answer given by a witness during cross-examination should not be taken in isolation and on that basis he should not be mulcted with liability. 28. It is the consistent case of the plaintiffs that they leased out only the second floor for a monthly rent of Rs.6000/- per month, after receiving two cheques each for Rs.50,000/- bearing Nos.436793 and 681995 and by way of acknowledgement, the first plaintiff issued receipt as per Ex.A25 dated 3.3.1998 and the said exhibit was marked during the cross- examination of D.W.1(D1). 29. Inasmuch as the plaintiffs tried to fasten the defendants with liability and also knowledge about the factum of the defendants having taken on lease the second floor for a sum of Rs.6000/- per month, after payment of Rs.one lakh as advance, the defendants, as a defensive measure placed reliance on Ex.B6-the letter dated 12.5.1998 as though they allegedly informed the plaintiffs that the lease was concerning two floors for a total rent of Rs.6000/- p.m. 30. The learned counsel for the defendants would submit that the two cheques bearing Nos.436793 and 681995 referred to in Ex.A25 could not have been given on 1.3.1998 because that day happened to be a Sunday and according to P.W.1 himself Sunday was holiday for his office. 31. A pertinent question arises as to whether such answer could be taken for disbelieving the plea of the plaintiffs. Nowhere it is stated that on Sunday, the first plaintiff would not be available in office. It is common knowledge that on Sundays office might not function, but the person relating to that office might be available in the office. As such, on the mere fact that 1.3.1998 happened to be a Sunday, the version of the plaintiffs cannot be disbelieved in toto. 32. There is no explanation at all as to why those two cheques should be written on 1.3.1998 and that they should be handed over, as per D.W.1, on 3.3.1998. 33. Ex.B9 is the most crucial document, which the defendants relied on so as to fasten the first plaintiff with his alleged commitment to lease out both the floors for a total monthly rent of Rs.6000/-. In the written statement also there is no whisper that the two cheques of Rs.50,000/- each were issued concerning each of the floors. It is found stated in the plaint generally that a sum of Rs.1,00,000 was paid as advance for taking on lease the premises. The plaintiffs would deny in toto his purported signature in Ex.B9. However, on the other hand the plaintiffs relied on Ex.A2-the purported letter dated 1.3.1998 written by D1 agreeing for the terms and conditions of the lease, as projected by the plaintiffs before this Court. D1 would deny his signature therein. It so happened that even when the matter was pending before the trial https://hcservices.ecourts.gov.in/hcservices/ Court, steps were taken by D1 to get his disputed signature in Ex.A2 being verified by a handwriting expert, but the trial Court rejected it and as against which, the C.R.P.was filed for nothing but to be dismissed. It is also a fact that