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2003 Supreme(Cal) 449
High Court Of Calcutta
D. K. SETH, RAJENDRA NATH SINHA
TARAK NATH SHA - Appellant
Versus
BHUTORIA BROTHERS PRIVATE LTD - Respondent
FIRST APPEAL 88 Of 1990
Decided On : 09/01/2003
B.K.BACHAVAT, HARISH TANDON, Mainak Bose, Sudhis Das Gupta
The comparison of signatures by expert is a technical job requiring some scientific investigation with regard to the nature and the characteristic of the comparable signatures. But an expert cannot conclusively and definitely determine the genuineness of the signature in comparison with the other. It is not a substantial evidence. It is only an opinion evidence. The Court is not bound to accept this evidence. Court has to examine the evidence and consider the same all by himself applying his own vision and expertise in the examination of the comparison between the two signatures having regard to the other evidences available on record to support one way or the other. It cannot be decided with the exclusion of the other evidences. The totality of the evidence has to be looked into.
Headnote:
LEASE - TERMINATION - ACKNOWLEDGMENT CARD - GENUINENESS - PROOF - POSTAL DEPARTMENT EVIDENCE - COMPARISON OF SIGNATURES - COURT'S EXPERTISE - ADMISSIBILITY OF DOCUMENTS - OBJECTION - WAIVER - BURDEN OF PROOF - SHIFTING - HANDWRITING EXPERT - EXAMINATION - NECESSITY - DELAYED PRODUCTION - ADVERSE PRESUMPTION - REGISTRATION RECEIPT - SECTION 27 OF GENERAL CLAUSES ACT - APPLICABILITY - ORDER 13 RULES 1 AND 2, C.P.C. - NON-DISCLOSURE OF DOCUMENT - CONSEQUENCES - CROSS-EXAMINATION - PURPOSE - SECTION 67 OF EVIDENCE ACT - PROOF OF SIGNATURE - SECTION 102 OF EVIDENCE ACT - RELEVANCE - SECTION 16 OF EVIDENCE ACT - PRESUMPTION OF SERVICE - POSTING OF LETTER - PROOF - SECTION 111(H), SECTION 108(Q) AND SECTION 106 OF TRANSFER OF PROPERTY ACT - TERMINATION OF LEASE - NOTICE - REQUISITES - SECTION 25 OF WEST BENGAL PREMISES TENANCY ACT - TENANT'S RIGHT TO RECEIPT FOR RENT - REFUSAL OR NEGLECT - CONSEQUENCES - CREATION OF TENANCY - PROOF - PAYMENT OF RENT - EVIDENCE - ADVERSE INFERENCE.
Fact of the Case:
The appellant Tarak Nath Sha stepped into the shoes of one Ram kewal Sha as trustee in respect of the suit property. M/s. Bhutoria Brothers pvt. Ltd. (BBL), the defendant in the Title Suit No. 812 of 1984 obtained a lease of the suit property for the purpose of residence of its Director, Manmal bhutoria (Manmal), for a period of 21 years outside the purview of West Bengal premises Tenancy Act (WBPT Act) expiring on 22nd March, 1984 from Ram kewal Sha, predecessor in title of the appellant Tarak Nath, executed on 23rd march, 1963. On the expiry of the lease, Tarak Nath filed Title Suit No. 812 of 1984 for recovery of possession with mesne profits. Manmal filed Title Suit No. 240 of 1984 against Tarak Nath and BBL for declaration that Manmal is a tenant in respect of the suit premises and for injunction.
Finding of the Court:
The lease stood terminated with effect from June 1974. A tenancy in favour of Manmal was not created with effect from 1st July, 1974. The lease continued till it expired by efflux of time on 22nd March, 1984.
Issues: 1. Whether the lease in favour of BBL stood terminated with effect from June 1974? 2. Whether a tenancy in favour of Manmal was created with effect from 1st July, 1984? 3. Whether the lease continued till it expired by efflux of time on 22nd March, 1984?
Ratio Decidendi: 1. The genuineness of the signature on the acknowledgment card (Ext. B) was doubtful as it was not proved by examining any witness from the Postal Department and the postal seal on the card was of a post office that did not become a delivery office till 1975. Further, Ext. B was not disclosed in the affidavit of documents filed on behalf of BBL and was produced on the last day of cross-examination of Tarak Nath, which led to an adverse presumption. The registration receipt was also not produced, so no presumption under section 27 of the General Clauses Act could be drawn. 2. The lease could not have been terminated by BBL through Ext. C coupled with the pleading pleaded in the plaint and the written statement in the two respective suits. Ext. C did not notify or appoint any date, time and place for delivery of possession. A copy of this document was also sent to Manmal for information and complying with the requisite contained in the above notice and for negotiating with the landlord, if required, directly. Whereas Manmal claims creation of tenancy with effect from 1st July, 1974. Admittedly, there was no delivery of vacant possession or giving of possession to Manmal by Tarak Nath. It is also not the case either of bbl or of Manmal that vacant possession was given to or taken by Tarak Nath. or delivery of possession to Manmal by Tarak Nath. 3. The lease continued till it expired by efflux of time.
Final Decision: Both these appeals succeed. The judgment and decree in Title Suit No. 812 of 1984 and Title Suit No. 240 of 1984 dated 6th October, 1989 passed by the learned Chief Judge, City Civil Court, Calcutta appealed against are hereby set aside. Title Suit No. 812 of 1984 is hereby decreed. The Title Suit No. 240 of 1984 is hereby dismissed. The Title Suit No. 812 of 1984 is hereby decreed. The plaintiff/appellant in F. A. No. 87 of 1990 shall be entitled to a decree in terms of prayers (a), (b) and (c) of the plaint in title Suit No. 812 of 1984.
( 1 ) THERE two appeals F. A. No. 87 of 1988 and F. A. No, 88 of 1988 arise out of the common judgment and decree dated 6th October, 1989 passed in Title Suit No. 812 of 1984 and Title Suit No. 240 of 1984 respectively. These two appeals are heard together. The appellant had filed an application under Order 41 Rule 27 of the Code of Civil Procedure (CPC) for additional evidence in respect of some documents being correspondences with the Postal authorities.
( 2 ) THE cases in the two suits are based on the same facts out of which two different reliefs are being sought for by the respective parties against each other. The narration of facts-hereafter would give us a clear picture. The appellant Tarak Nath Sha (Tarak Nath) stepped into the shoes of one Ram kewal Sha as trustee in respect of the suit property. M/s. Bhutoria Brothers pvt. Ltd. (BBL), the defendant in the Title Suit No. 812 of 1984 obtained a lease of the suit property for the purpose of residence of its Director, Manmal bhutoria (Manmal), for a period of 21 years outside the purview of West Bengal premises Tenancy Act (WBPT Act) expiring on 22nd March, 1984 from Ram kewal Sha, predecessor in title of the appellant Tarak Nath, executed on 23rd march, 1963. On the expiry of the lease, Tarak Nath filed Title Suit No. 812 of 1984 for recovery of possession with mesne profits. Manmal filed Title Suit No. 240 of 1984 against Tarak Nath and BBL for declaration that Manmal is a tenant in respect of the suit premises and for injunction.
( 3 ) THE plaint case of Manmal in Title Suit No. 240 of 1984 was that originally the lease was taken by BBL for the purpose of residence of its Director Manmal, who resigned from the post of Director of the company and severed all his connections sometimes before April 1974. BBL terminated the lease with the expiry of June 1974 by its letter dated April 18,1974 in terms of clause (lll) (iii)contained in the Deed of Lease after having paid rent till the month of June 1974. Manmal comnlenced negotiation with Tarak Nath for grant of tenancy in his personal capacity from July 1,1974 at a rate of Rs. 1,100/- per month payable according to the English calendar comprising of the suit premises together with an additional piece of adjoining vacant land. Tarak Nath in spite of assurances failed and neglected to grant tenancy to Manmal in respect of the adjoining land although was agreeable to Manmal's continuation of occupation as a monthly tenant at the rent of Rs. 1,100/- per month since paid by Manmal to tarak Nath regularly, though, however, no rent receipt was granted by Tarak nath. Suddenly by a letter dated 27th January, 1984, Tarak Nath demanded possession of the premises from BBL ignoring what had transpired for the last ten years. Manmal pointed out by a letter dated 9th February, 1984 to Tarak nath that the lease was terminated with the expiry of June, 1974 and Tarak nath was attempting to deny Manmal's right as a tenant taking advantage of his having never granted rent receipts. On these grounds Manmal had filed the Title Suit No. 240 of 1984 for declaration of his tenancy and for injunction against Tarak Nath impleading BBL as defendant No. 2. Title Suit No. 812 of 1984 was dismissed. Title Suit No. 240 of 1984 was allowed. The appellant, therefore, had preferred these two appeals against the common judgment and decree as stated before.
( 4 ) WHEREAS BBL sought to defend Title Suit No. 812 of 1984 on the ground that the lease was terminated with the expiry of June 1974 and since then manmal was accepted as tenant by Tarak Nath. On the other hand, Tarak nath repeated his plaint case denying termination of lease or creation of tenancy in favour of Manmal as his defence in Title Suit No. 240 of 1984.
( 5 ) THE parties have adduced evidences both oral and documentary and had contested the suit. The learned Counsel for the respective parties had argued the case for days together. The questions which fall for determination
