C KAILASCHAND JAIN Vs. MOHAMED KASIM

JUDGEMENT

(1.) TENANTS who have lost in both the forums below have come forward with this civil revision petition. Present respondent instituted R.C.O.P.No.10 of 1988 in the Court of Rent Controller (District Munsif), Mayiladuthurai seeking eviction under Sections 10(2) (ii) (b) and 10(2) (iii) of Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 on the allegations that the revision petitioners are using the building for a purpose other than that for which it was leased and that they have committed acts of waste as are likely to impair materially the value or utility of the building. It is the case of the landlord that the demised property is the ground floor measuring 10"X95" of Door No.5, Second street, Mayiladuthurai Town. This non-residential premises was let out to the revision petitioner under Ex.P. 1 agreement dated 31-7-1978 for the purpose of running Textile shop, Jewellery shop and Medical shop for a period of 15 years from 1-7-1978 on a monthly rent ranging from Rs.1000/- to Rs.1238/- as specified therein. However, contrary to the terms of the tenancy revision petitioners are running a Pawn-broker's shop in the premises without the knowledge and consent of the landlord. Besides they have carried out structural alteration in the building in respect of windows, doors, almirahs and angles. They have lowered the floor space below the road level. They have also raised a wall in the verandah thereby putting in a barricade between the verandah portion and the space leading to the staircase. Whereas the revision petitioners contended that they are running only Jewellery shop and Textile shop in this property under the name and style of Maharaja Jewellery and Maharaja Silk House. Ex.R.1 is the Invitation printed for the inauguration of the Jewellery shop. And only on the instructions of the landlord they have put up wall of 6 feet height and 4 feet length in the verandah near the access to the staircase.

(2.) LEARNED Rent Controller found that the revision petitioners have raised the wall without the knowledge and consent of the landlord and carried out structural alteration regarding door, window and almirah, and this constituted acts of waste. And by running Pawn-broker's shop in the demised premises revision petitioners are using the building for a purpose other than that for which it was leased out. So he allowed the application and granted two months" time to the tenants to vacate the premises. There upon the tenants preferred R.C.A.No.5 of 1991 before the Appellate Authority-Sub Judge, Mayiladuthurai, with no success. And these orders are challenged in this revision petition.

(3.) EX.P.2 is the report and plan of the Commissioner filed in O.S. No.112 of 1988 on the file of District Munsif of Mayiladuthurai. In this the Commissioner has observed that in the demised building on the outer wall the names Maharaja Jewellery and Maharaja Pawn-broker's shop are written in paint. On the basis of this report of the Commissioner and on the evidence of R.W.1 that the tenants were formerly carrying on Pawn-broker business in a building in Nayarana Pillai Lane, that there was dispute between them and the landlord and that they had vacated the premises, the Courts below have concurrently found that the running of Pawn-broker trade in the demised premises is true. They have negatived the tenants" claim that since Pawn- broker business requires licence and in the absence of the production of any such licence it cannot be said that the disputed building is used for the purpose of doing Pawn-broker trade also. It is the argument of learned counsel for the revision petitioners that EX.P.2 the report of the Commissioner filed in another suit is inadmissible in evidence in the present action. Since this report has not been proved by the examination of the Commissioner, it cannot go in evidence. Under Order 26 Rule 9 CPC, in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. And Order 26 Rule 10(2) provides that the report of the Commissioner shall be evidence in the suit in which the Commissioner has been appointed. And the report of the Commissioner filed in one action cannot form part of the record in another suit without the examination of the Commissioner and marking the report through him. In Sarat Chandra v. Sarala Bala Ghosh (A.I.R. 1928 Calcutta 63) a Division Bench of the Calcutta High Court has held that although a report and a map prepared by the Commissioner can be taken into evidence only in the suit in which he made the inquiry, yet they can be admitted in evidence in another suit under the Evidence Act on being proved by the person who made them. However, we find from the judgment of the appellate authority, herein that EX.P.2 was marked by consent. In Jainab Bibi Saheb v. Hyderalli Saheb (38 M.L.J 532) a Full Bench of this Court has held that the consent of the parties to a suit can make admissible the evidence given in a previous judicial proceeding between them even in a case in which the conditions prescribed by Section 33 of the Evidence Act do not exist. The Full Bench further pointed out that the effect of Section 33 of the Evidence Act merely is that, while the presiding Judge in the course of trial may ask questions about irrelevant facts including under the scheme of the Act statements made to the witness by other parties or hearsay, he must base his judgment upon facts which are relevant to the issue and are fully proved. It does not throw any light on the question what facts should be considered to be duly proved. The admission by consent of evidence taken in other cases raising the same issues is of daily occurrence in England and must now be taken to be the settled practice which is the law of the Court. There is no sufficient reason for holding that a different rule is applicable in India. So it is not open to the revision petitioners to assail EX.P.2 forming part of the evidence in these proceedings.