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PETITIONER: DUTTA CYCLE STORES & ORS.

       Vs.

RESPONDENT: SMT. GITA DEVI SULTANIA & ORS.

DATE OF JUDGMENT25/01/1990

BENCH: THOMMEN, T.K. (J) BENCH: THOMMEN, T.K. (J) SHETTY, K.J. (J)

CITATION:  1990 AIR  656            1990 SCR  (1) 152  1990 SCC  (1) 586        JT 1990 (1)    79  1990 SCALE  (1)70

ACT:     Bihar Buildings (Lease, Rent and Eviction) Control  Act, 1947.’ S. 11(1)(d)--Tenant--Eviction of on grounds of wilful default--Held  on facts that no reason seen to suspect  rent remained in arrears.

HEADNOTE:     The appellant-defendants fell in arrears of rent for the months  of February and May to August 1974 for  the  demised premises.  The respondent-plaintiffs sought  their  eviction under  s. 11(1)(d) of the Bihar Buildings (Lease,  Rent  and Eviction)  Control  Act,  1947 on the  grounds  of  default. Decreeing the suit, the trial court found that rent for  the said five months had not been paid. The decree was  affirmed by  the appellate court in part, that is, in respect of  May and June, 1974. That finding was affirmed by the High Court. Allowing the appeal by special leave, the Court,     HELD: The Supreme Court does not ordinarily interfere in proceedings  under Article 136 of the Constitution  particu- larly when all the courts below had reached the same conclu- sion. But where the finding of fact is based on no  evidence or  opposed to the totality of evidence and contrary to  the rational  conclusion  to which the state  of  evidence  must reasonably lead, then the Court will in the exercise of  its discretion  intervene  to prevent  miscarriage  of  justice. [154C-D]     In the instant case, there was no reliable oral evidence on the side of the plaintiffs to support the allegation that rents  were in arrears. Nor was there any  documentary  evi- dence in support of their case. Neither the first plaintiff, the widow nor the other two plaintiffs, her children, testi- fied  in  support of the allegation PW-4, who  verified  the plaint on behalf of the plaintiffs admittedly had no person- al knowledge that the defendants were in arrears of rent  or whether  the  first plaintiff or anybody else  had  demanded rent from the defendants. [156F-G]     On  the other hand, DW-8, one of the defendants,  stated that  for  the months of May and June 1974 he had  paid  the rent in June 1974 by 153 handing  over the amount to the first  plaintiff’s  daughter

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when she went to his shop tO collect the rent. Since she was a  minor he accompanied her to her house to make  sure  that the amount was received by her mother, the first  plaintiff. This  evidence  has been supported by DW-7. He was  the  Ac- countant of the first defendant firm. DW-6 also spoke of the fact  that in June 1974 the defendants had given  Rs.200  as rent to the younger daughter of the plaintiff. These  state- ments  of defence witnesses were categoric and clear.  There was  no contradiction in term for there was no  evidence  on the  side of the plaintiffs to the contrary. The  conclusion arrived  at by the courts below that rents remained  in  ar- rears  was,  therefore, perverse  and  totally  unjustified. [155A-B, E; 156D, F, G]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  652  of 1982.     From the Judgment and Order dated 22.8.1980 of the Patna High Court in Second Appeal No. 125 of 1977 (R). Ashok K. Sen and D.P. Mukherjee for the Appellants.     N.H.  Hingorani, Ms. Kapila Hingorani and R.P.  Wadhwani for the Respondents. The Judgment of the Court was delivered by     THOMMEN,  J.  This  civil appeal  by  special  leave  is brought by the defendants against the judgment of the  Patna High  Court, Ranchi Bench, in Second Appeal No. 125 of  1977 dismissing  in limine their appeal against the  judgment  of the  learned District Judge in Title Appeal No. 2/5 of  1977 whereby  the  decree  for eviction granted  by  the  learned Munsiff in Title Suit No. 3 of 1975 was in part affirmed.     The plaintiffs (respondents) instituted the suit against the  defendants  (appellants)  for  eviction  under  Section 11(1)(d)  of the Bihar Buildings (Lease, Rent and  Eviction) Control Act, 1947 on the ground that the defendants were  in arrears of rent for the months of February 1974 and May 1974 to August 1974. The defendants contested the suit on various grounds.  Their main defence was that they were not  in  ar- rears  of rent as alleged by the plaintiffs.  Decreeing  the suit, the learned Munsiff found that rent for the months  of February 1974 and May 1974 to August 1974 had not been  paid by  the defendants. This decree was affirmed by the  learned District  Judge in part, that is, in respect of the  alleged arrears for the months of May 154 and June 1974, and not for any other period. The finding  of the First Appellate Court was affirmed by the High Court  by dismissing the defendants’ appeal in limine.     The  question which arises for consideration is  whether the courts below were justified in coming to-the conclusion, which  they  did, and whether the impugned judgment  of  the High  Court is liable to be interfered with in  the  present appeal  brought  by special leave under Article 136  of  the Constitution.     Whether  or not rent for the two months in question  had been duly paid by the defendants is a question of fact,  and with a finding of such fact, this Court does not  ordinarily interfere in proceedings under Article 136 of the  Constitu- tion,  particularly  when all the courts below  reached  the same  conclusion. But where the finding of fact is based  on no  evidence  or  opposed to the totality  of  evidence  and contrary  to the rational conclusion to which the  state  of evidence  must reasonably lead, then this Court will in  the exercise of its discretion intervene to prevent  miscarriage

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of justice.     The  suit  was instituted by the  widow  of  Rameswarlal Sultania. The plaint was verified by Rameswarlal  Sultania’s nephew on behalf of the plaintiffs, and he deposed as  PW-4. Neither  the  first plaintiff, the widow nor the  other  two plaintiffs, her children testified in support of the  plaint allegations.  The nephew, PW-4 frankly admitted in  the  box that  he had no personal knowledge of the facts  alleged  in the  plaint.  He    did not know if the defendants  were  in arrears of rent or whether his aunt, the first plaintiffs or anybody else had demanded rent from the defendants. None  of the witnesses on the side of the plaintiffs had any personal knowledge  of the facts alleged by the plaintiffs in  regard to  the  arrears of rent. PW-4 is, amongst  the  plaintiff’s witnesses,  the  only person who speaks to  this  fact,  but admittedly  speaks without any claim of personal  knowledge. In the circumstances, there is no reliable oral evidence  on the side of the plaintiffs to support the plaint  allegation regarding the arrears of rent. Nor is there any  documentary evidence in support of their case.     On  the other hand, the defendants categorically  stated that  they had paid the rent for the two months in  question to the first plaintiff. At that time her husband was  alive, but  he was in no condition, on account of poor  health,  to give  a receipt for the rents paid. The defendants, in  view of their personal relationship with him, did not insist upon a receipt. 155     DW-8  is one of the defendants. He categorically  stated that for the months of May and June 1974 he paid the rent in June  1974  by handing over the amount to the  first  plain- tiff’s  daughter  when she went to his shop to  collect  the rent. Since she was a minor he accompanied her to her  house to make sure that the amount was received by her mother, the first plaintiff. His evidence on the point is in the follow- ing words: "It  is incorrect to say that I have not paid the  rent  for May-June  1974. In June, the daughter of Rameshwar Babu  had come to demand Rs.200 towards the rent for May-June 1974 and I had given the (Illegible) at that time. I had demanded the receipt,_ but he was unwell and as such did not give it". "Rameshwar  Babu was not living in his senses in  June,  74. His  brain was not in proper condition. In June, 74  I  gave Rs.200 to his wife (plaintiff), after taking the same to his house. Even subsequently my brother had gone to pay the rent to the plaintiff, Gita Devi for two-three times." This evidence is supported by DW-7. He is the Accountant  of the  first defendant-firm of which defendants Nos. 2  and  3 who are brothers are partners. Referring to these  partners, and a neighbour by name Nandi (DW-6), this is what he says: "In  June 74, the defendants, Bibhuti and  Prahalad  Chandra Dutta had given Rs.200 two hundred rupees to the daughter of Rameshwar  Babu.  Nandi  Babu,  Bibhuti  Babu  and  I   were (present)  in  the shop, at that time. This money  was  paid towards the rent of the house". Nandi (DW-6) also speaks on this point: "The   defendants  always  used  to  pay  the  rent  in   my presence   .......  In June, 1974, they had given Rs.200  as rent to the younger daughter of Ramesh Babu in my  presence. I told (them) that as she was a small girl, they should also accompany her. Then Bibhuti Bhusan Dutta reached the girl."     The  evidence of these three defence witnesses  is  that the rent for the months of May and June. 1974 had been  duly paid in June 1974 in 156

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the  sum  of Rs.200 by the second defendant  (DW-8)  to  the landlord, Rameswarlal Sultania by handing over the amount to his  minor  daughter  who went to the  defendants’  shop  to collect the same and by accompanying her to her house to see to the safe delivery of the same to the first plaintiff, her mother  who obviously received it on behalf of her  husband, the  landlord. The evidence seems to be clear on  the  point and we see no contradiction in this.     The  courts  below  did not appreciate  that  this  much evidence  was staring in the face, and there was  total  ab- sence of evidence on the point on the side of the  plantiffs to  contradict the defence evidence. The  plaint  allegation regarding arrears was not spoken to on the plaintiffs’  side by any person having personal knowledge. The plaintiffs made no attempt to let in any reliable evidence on the point. The evidence of PW-4 who admittedly had no personal knowledge on the  point  is no evidence at all. On the  other  hand,  the evidence of DW-8, supported by the evidence of his  Account- ant (DW-7) and his neighbour (DW-6) is categoric and clear.     The learned District Judge disbelieved this evidence  on the assumption that DW-6 contradicted himself when he stated that  the  amount was paid to the daughter and also  to  her monther. In his written statement he stated that the  amount had been paid to the landlord, Rameswarlal Sultania.     In  the  light of what we have stated above, we  see  no contradiction  in these statements. The amount was,  in  our view, rightly stated to have been paid to Rameswarlal Sulta- nia when it was handed over to the daughter to be paid  over to her monther, viz., the first plaintiff who was reasonably understood  to  have received it for and on  behalf  of  her husband. If the statement is true, there is no contradiction in  it  and it is categoric and clear. We see no  reason  to suspect that it is not true for there is no evidence on  the side  of the plantiffs to the contrary. As  stated  earlier, there  is no evidence at all on the side of  the  plaintiffs that rents were in arrears. In the absence of any reason  to disbelieve the clear and categoric testimony of the  defence witnesses on the point, we see no reason to suspect that the rents  remained in arrears. In the circumstances, we are  of the  view  that the courts came to the conclusion,  as  they did,  without  any  evidence whatsoever to  support  it  and contrary  to the available evidence let in by  the  defence. Their  conclusion was, therefore, perverse,  irrational  and totally  unjustified.  For  this reason, we  set  aside  the impugned decree and judgment of the courts below. The appeal is allowed with costs. P.S.S.                                                Appeal allowed. 157