1993 Supreme(MP) 404

R.C. Lahoti, J.
Mahesh Chand v. Nagar Palika, Morena
S.A. No. 116 of 1988 (G); Decided on 10.7.1993*.

Headnote:(1) Civil P.C., 1908 -- O. 13, R. 10 -- whole file sought to be summoned -no purpose disclosed -- belated application after closing of plaintiffs evidence -- refusal is proper.

        (2) Civil P.C., 1908 - S. 96 -- appeal under -- all interlocutory orders are subject to scrutiny.

        (3) Landlord and Tenant -- relationship -- cannot be established by receipts mistakenly obtained from the employees of landlord.

        ¼1½ flfoy izfdz;k lafgrk] 1908 & vk- 13] fu- 10 & iwjh Qkby leu fd, tkus dh bZIlk & iz;kstu crk;k ugha x;k & oknh dk lk{; lekIr gksus ds i‘pkr~ foyafcr vkosnu & Bhd ukeatwj fd;k x;kA

        ¼2½ flfoy izfdz;k lafgrk] 1908 & /kkjk 96 & ds v/khu vihy & leLr & varfje vkns‘k laoh{kk ds v/;/khu gSaA

        ¼3½ Hkw&Lokeh vkSj vfHk/kkjh & laca/k & Hkw&Lokeh ds deZpkjh ls Hkwy ls izkIr dh xbZ jlhnksa }kjk LFkkfir ugha fd;k tk ldrkA

        The plaintiffs alleged themselves to be tenants over the suit land holding the same from the Municipal Council, Morena, defendant/respondents No.1 and 2. According to the plaintiffs, the defendants were attempting at forcibly removing the plaintiffs from their possession over the suit land which was impermissible in law unless and until the tenancy of the plaintiffs was terminated and they were evicted in accordance with law. The two Courts below have held that the plaintiffs had utterly failed in proving their having obtained the land from the defendants on lease.

        On 28.1.82 the plaintiffs closed their evidence and the case was posted for defendants evidence on 3.3.82. On that date the plaintiffs moved an application under Order 13 Rule 10 C.P.C. for summonning an original record file from the possession of the Municipal Council.

        Held: It is noteworthy that in the entire application the plaintiffs did not state the names of the documents which they proposed to prove. It was also not stated why the original record only was necessary to be called before the Court. It was further nut stated whether the record proposed to be called was required as part of the plaintiffs evidence or for cross-examining the defendants witnesses. The plaintiffs evidence had already stood closed and there was ample opportunity available at the disposal of the plaintiffs to summon the record while their evidence was going on. No reason was assigned why the application was not moved earlier, if not on the date of settlement of issues. The trial Court was justified in rejecting the application. Presumably it had no other option available with it.

        No doubt the lower appellate Court has stated in its judgment under appeal that the plaintiffs ought to have preferred a revision against the order rejecting the application dated 3.3.82. That observation is unsustainable in law. In appeal preferred against the judgment and decree, the legality and propriety of every interlocutory order affecting the merits of the case is open to challenge. The lower appellate Court should have examined the merits of the order rejecting the application. However, no capital can be built on that failure of the lower appellate Court for the reasons already stated. The application was belated and meritless. Even if the lower appellate Court would have heard on merits of the application, there would have been no occasion for recording any different opinion.

        The question whether the plaintiffs were tenants or nut is basically one of fact and ordinarily the finding recorded thereon (more so when it is concurrent) is not open to challenge in second appeal. Still in view of the serious challenge thrown by the learned counsel for the appellants to the finding concurrently recorded by the Courts below, this Court has chosen to go through the evidence and examine if there was any perversity in the finding recorded by the Courts below. Having gone through the evidence, oral and documentary, with the assistance of the learned counsel for the parties, this Court is satisfied that there has been no misreading or nond`reading of the evidence by any of the Courts below. The finding recorded has been reasonably arrived at.

        it is true that the plaintiff/appellants have filed a few receipts issued by the employees of the defendant/respondents and the submission of the learned counsel for the appellants has been that the receipts showing payment of rent by the plaintiffs to the Municipal Council, spell out the plaintiffs having been inducted as tenants though there was no deed of lease available. This Court is not impressed with the submission. The explanation offered by the learned counsel for the defendant/respondents and indeed that was the explanation offered in the Courts below too, is that if the plaintiffs had succeeded in making payment and securing receipts by mistake from subordinate employees of the Municipal Council, such payments and receipts would not bind the Municipal Council. There appears to be substance in the submission so made and the explanation so offered.

        That apart some of the receipts show no payment of rent but payment of Bhoomi-shulk (land fee or licence-fee) for occupation of land. These receipts do not advance the case of tenancy as pleaded in the plaint. Appeal dismissed.