JAGARNATH RAM Vs. MOHAMMAD YUSUF ABASI AND OTHERS

JUDGEMENT

(1.) THIS is a tenants second appeal from the decision of the Civil Judge, Ghazipur confirming a decree for his ejectment and recovery of arrears of rent from him. The plaintiff-respondents Mohammad Yusuf Abbbasi and others alleged that they were the owners of the house and the defendant-appellant Jagarnath Ram their tenant on a rent of Rs. 20/- per month from the year 1951; that the defendant appellant had not paid any rent from 1-12-1953 till the date of the suit; that he had been served with a notice demanding rent and terminating his tenancy but had not paid the rent; hence the suit. The appellant admitted the tenancy but alleged that the rent was Rs. 3/- and not Rs. 20/- per month; that no rent was due as it had been adjusted against the price of goods purchased by the plaintiffs from the appellants shop and the expenses incurred by him on repairs of the house. He also contended that the notice of demand and the termination of tenancy was not in accordance with law.

(2.) THE trial court recorded the statements of the parties under O. 10 R. 2, C.P.C. Mohammad Yusuf Abbasi, one of the plaintiffs, stated that the defendant-appellant originally took the shop on rent from his mother Sadrulnissa Bibi in the year 1940 but he (Mohammad Yusuf Abbasi) did not know on what rent. He further stated that after the death of his mother in 1950 he (Mohammad Yusuf) added one more shop to the old shop and the defendant made an oral contract with him settling the rent at Rs. 20/- per month. He also alleged that this agreement was made in the presence of two persona whom he named. The defendant in his statement under O. 10 R. 2 stated that he took the shop on Rs. 3/- per month as rent from Sadrulnissa Bibi in 1940, and after her death he continued as the tenant of the plaintiffs and paid the same rent to them. He further stated that he supplied goods to the plaintiff and the price of the articles was set off against rent and this fact had been endorsed by the plaintiffs in their"diary."

(3.) GOPI Nath, learned counsel for the appellant advanced four arguments in support of this appeal. First, he contended that as the plaintiff-respondents story of addition of a new shop and consequent enhancement of rent had been disbelieved, the appellants case that the rent was Rs. 3/- per month should have been accepted by the courts below. Learned counsel argued that the Civil Judge had tried to explain away the plaintiffs statement under O. 10 R. 2 by surmises and conjectures for which there was no basis. I have read the statements of the parties under O. 10 R. 2 and also the remarks of the learned Judge. He took the view that the plaintiffs statement was either made under a misapprehension or wrongly recorded by the trial court. This was pure speculation on the part of the Civil Judge for which there was no basis. The statement of Mohammad Yusuf is crystal clear and relates a definite story about which there could be no misapprehension in His mind. Statements under O. 10 R. 3 are usually made in the presence of counsel and if there is any error in recording it counsel can have it rectified. Mohammad Yusufs statement was signed by him and its correctness was not challenged by him at any stage of the suit. An appellate court is not entitled to get round or explain away a clear statement made under O. 10 R. 2 C.P.C. on the speculative surmise that the trial court might have wrongly recorded it. This type of speculation is not only unfair to the trial Judge in attributing to it an error in the discharge of his duties but also introduces an element of uncertainty into the record of the proceedings for no reason. The appellate court is bound to accept the correctness of the statement recorded by the trial court unless there is a clear proof of error. I must, therefore, hold that the plaintiff did make a statement that the rent was increased after he had added a chop to the old accommodation and that this story was disbelieved by both the courts below.