(Petition under Section 25 of the TN Buildings (Lease and Rent Control Act 1960) praying the High Court to revise the order of the Court of the Appellate Authority (Kovilpatti Sub Court) dated 4.3.99 and made in RCA 16/98 (RCOP 15/95 dated 25.3.98 on the file of the Rent Controller, Kovilpatti)

C.M.P. No. 9235 of }999 Petition presented to the High Court to receive the letters dated 1.11.92 executed by the respondent as additional document in the above C.R.P.)

Landlord in R.C.O.P. No. 15 of 1995, on the file of Rent Controller (District Munisf. Kovilpatti) is the revision Petitioner.

2. The eviction petition was filed by the landlord alleging that the respondent has committed wilful default in payment of rent and has also committed acts of waste, in the sense that the building has been materially altered.

3. It is alleged by the landlord that the rate of rent is Rs. 325/- and the tenant committed wilful default by not paying rent from December 1994 till 31.1.1995. Regarding material alteration to the building, it is alleged that without the consent of the landlord, various changes have been made to the building, affecting the very structure. He has prayed for eviction of the respondent.

4. As against the said allegations, respondent contended that the rate of rent is only Rs. 110/- and he has paid an advance of Rs. 25, 000/- at the time of commencement of the tenancy. He has also alleged that he has not committed any default, and that it is not the habit of the landlord to issue receipts. According to him, he has not made any material alteration so as to affect the structure, but has only improved the building. He prayed for dismissal of the eviction Petition.

5. The Rent Controller, as per order dated 25.3.1998, dismissed the petition. Before the Rent Controller, both the landlord and tenant got themselves examined. There was no documentary evidence on either side. The Rent Controller was of the view that it is for the landlord to prove the rate of rent and also the date of default, and the landlord should have taken steps for production of certain documents which he alleged to have given to the tenant evidencing receipt of rent. Regarding material alteration also the Rent Controller was of the view that there is no legal evidence to prove that the building is damaged or that there is some alteration which has affected the physical features of the building.

6. Against the order of the Rent Controller, landlord filed R.C.A. No. 16 of 1998, on the file of Sub Judge, Kovilpatti. The Appellate Authority dismissed the appeal, confirming the order of the Rent Controller. The concurrent findings of the authorities below are challenged in this Revision Petition.

7. Notice of motion was ordered and respondent has also entered appearance. I heard learned counsel on both sides.

8. In regard to the claim for eviction on the ground that there is material alteration to the building, the finding of the Rent Controller as well as the Appellate Authority that there is no legal evidence to prove the same is correct. Excepting the evidence of P.W.I, no other evidence has been let in to prove-that there is any change in the physical features of the building as to how the structure of the building has been changed. The concurrent finding cannot, therefore, be interfered with in this Revision.

9. In regard to wilful default in payment of rent, I feel that the decisions of the Authorities below require interference.

10. According to landlord, the rate of rent is Rs. 325/-, whereas, according to tenant, it is Rs. 110/- It is true that regarding rate of rent, it is for the landlord to prove the same. Let us assume that the rate of rent is Rs. 110/- per mensem, as alleged by the tenant. But, even then, the question to be considered is whether the decisions of the Authorities below are in accordance with law.

11. When the landlord alleges that rent has not been paid from December 1994, it is for the tenant to prove that the had paid it. It is for the tenant to prove that he has paid the rent, and he has discharged his statutory obligations. A mere swearing by tenant that he has paid the rent is not sufficient. The entire burden is on the tenant to substantiate the same. The Rent Controller as well as Appellate Authority assumed that it is for the landlord to prove the default. The landlord can only allege that he has not received the rent, and the person who alleges discharge of rent has to prove the same. Merely because the tenant happens to be an advocate, I feel that both the Authorities below have twisted the law against the landlord. It is really unfortunate that both the Authorities have not only deviated from the well-settled legal principles, but they have also accused the landlord that he has not discharged the burden. When the burden of proof has been wrongly cast, that will be a material irregularity an that justifies an interference under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act.

12. Both the Authorities below have also accused the landlord for not taking action against the tenant for not producing the diary or passbook which the landlord has given to the tenant wherein entries are made as and when rent is paid. By making such an accusation against the landlord, it is clear that there is a passbook or diary, and the same is maintained by tenant. The landlord cannot be accused of not taking steps to produce that document, for, it is well-settled legal principle that the person who is in possession of the best evidence is bound to produce the same, whether it is demanded or not. In (1968) II S.C.W.R. 882 (Gopal Krishnaji Ketkar v. Mohammed Haji Latif and others), commenting on Section 114 of the Evidence Act, their Lordships have said thus:

Even if the burden of proof does not lie on a party the court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issue in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Manickayasaka Pandora , Lord Shaw observed as follows:

A practice has grown up in Indian procedure of those in possession of important documents or information lying trusting to the abstract doctrine of the onus of proof and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough they have no responsibility for the conduct of the suit, but with regard to the parties to the suit it is, in their Lordships opinion,

an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.

This passage was cited with approval by this Court in a recent decision Biltu Ram others v. Jainandan Prasad and others . In that case reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Bilas Kunwar v. Desraj Ran/it Singh and others:

But it is open to a litigant to refrain from producing any documents that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper, if he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents.

But Shah, J., speaking for the Court, stated:

The observations of the Judicial Committee do not support the proposition that unless a party is called upon expressly to make an affidavit of documents and inspection and production of document is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such a rule is inconsistent with illustration (g) of S. 114 of the Evidence Act, and also an impressive body of authority.

By the production of the dairy in the case on hand even the rate of rent could have been proved. The tenant has failed to produce the document, and naturally an adverse inference has to be drawn against him as per the decision cited supra. When P.W.I was examined, he has said thus:

Tamil

He has not been cross-examined on this point, though in one portion of his evidence, respondent (tenant) has said that no separate receipts are issued. Both the authorities below have also found fault with the landlord for not examining the broker through whom the rent all arrangement was entered into. According to me, the said approach by the authorities below is most irrelevant when the rental arrangement is admitted. The tenant has a case that he has paid a sum of Rs. 25,000/- as advance. Absolutely no evidence has been let in that regard. At the time when the rental arrangement is entered into, the parties are strangers. It is impossible to believe that the tenant will part with a sum of Rs. 25,000/- without any record. Merely because the rental arrangement is oral, that docs not follow that whatever the tenant says will have to be believed. As I said earlier, only because the tenant happened to be legal practitioner, the Authorities below twisted the entire legal principles, to disbelieve the case of the landlord.

13. When P.W.I was examined, he has said that after the eviction petition was filed in 1995, the tenant has paid the rent only on 5.1.1998, i.e., nearly three years after. The said conduct of the tenant has not been taken into consideration by the Authorities below.,

They have accused the landlord of not issuing a registered demand to the tenant. At the same time, the Authorities below failed to note that the legal practitioner is the best person to know his contractual as well as statutory obligations towards his landlord, and he should not have waited to pay the rent till a registered demand is made. R.W.1 has also said that he is well aware of his contractual and statutory obligations. He has also said that he was aware as to when the rent had become due. His explanation is,

Tamil

The said explanation itself is enough to show that the tenant had been callous in not paying the rent and that the default is intentional. The tenant has committed wilful default in payment of even the admitted rate of rent. That circumstance alone is sufficient to hold that the tenant has committed default in paying the rent and that the same is wilful.

14. In the result, the orders of the Authorities below are set aside. There will be an order of eviction against the respondent on the ground that he has committed wilful default in paying the rent. Taking into consideration the facts and circumstances of the case, I do not think that the tenant should be given any time to surrender vacant possession. The Civil Revision Petition is allowed with costs throughout.

15. As regard C.M.P. No. 9235 of 1999 filed by the revision petitioner herein to receive additional document as evidence, it is to be pointed out that the same is not necessary for the disposal of the Revision. Hence, the C.M.P. is dismissed.