BABULAL JEWRAJKA Vs. KAMALA DEVI FATEPURIA

JUDGEMENT

(1.) This Rule was obtained by the defendant against an order passed by Sri S. N. Bhattacharjee, learned Judge of the Small Causes, Calcutta.

(2.) By his order the learned Judge maintained the distress warrant which was issued at the instance of the plaintiff opposite party in respect of rent due for a period of seven months. The defendant was a tenant under the plaintiff. An application was made by the plaintiff for the issue of a distress warrant in terms of Section 53 of the Presidency Small Cause Courts Act in respect of arrears of rent alleged to be due from" the 3rd of May, 1950, to 21st of May, 1951. After the warrant had been executed the defendant filed an application before the learned Judge for lifting the distress warrant. He raised various contentions before the learned Judge which the learned Judge overruled. In this Court Mr. Sen who has appeared in support of the petition has limited bis contention to one point only, namely, that there is no legal evidence to prove that rent was in arrears for the requisite period. It is the contention of Mr. Sen that the evidence on behalf of the plaintiff shows that rent was realised by the plaintiff durwan. The durwan has not been examined nor has the plaintiff or her son or Laduram to whom, according to the defendant, rent was paid, in order to deny the defence version. The only person who was called was P. W. 1, Sri Kedia, the manager of the plaintiff's estate. P. W. 1 proved certain entries in the account books. He admitted that rent was realised by the durwan and also stated that the account books were written by Laduram in his presence. According to Mr. Sen, this evidence does not legally prove that rent was not paid by the defendant as alleged by them. Mr. Sen further contended that the entries in the account books by themselves cannot charge the defendant with liability and that in the absence of corroborative evidence the entries are insufficient to prove non-realisation of rent. In my opinion, this contention, though plausible, cannot be accepted. In this case the learned Judge has disbelieved the defence, namely, his plea of payment. The plaintiff was merely called upon to show that no rent was paid. The account books were put in for the purpose of showing the absence of any entry in those account books evidencing payment of rent by the defendant. There was no question of charging the defendant with liability by reason of an affirmative entry in the account books. The account books were duly proved by the manager, because he stated that the entries were made in his presence. This plaintiff's manager deposed to say that the defendant never paid the rents claimed. The learned Judge has also referred to certain circumstances in support of his view that the defendant's version cannot be believed. These circumstances are that the plaintiff granted the defendant a receipt for payment of rent in respect of prior period and there is a Money Order coupon showing payment of rent for a prior period. The defendant failed to produce any receipt showing that rent was paid for the period now in question. The learned Judge also commented on the fact that the defendant did not produce his account books. He also disbelieved the defendant's evidence, In these circumstances, it is impossible to say that the learned Judge had no legal evidence on which to base a conclusion as to non-payment of rent by the defendant. There is therefore no substance in the contention raised" on behalf of the petitioner that there is no legal evidence to support the finding of the learned Judge that rent was not paid for the disputed period. The only contention raised in support of the petition must therefore fail.

(3.) The Rule Is accordingly discharged with costs, hearing fee being assessed at five gold mohurs.