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2000 DIGILAW 600 (MP)

Dhanya Kumar Jain v. Mata Prasad Gupta

2000-06-27

S.C.PANDEY

body2000
JUDGMENT S.C. Pandey, J. 1. This is plaintiff s appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 23-7-1992 passed by Xth Additional Judge to the Court of District Judge, Jabalpur in Civil Appeal No. 3-A/1991 reversing the judgment and decree dated 10-1-1991 passed by IInd Civil Judge Class II, Jabalpur, in Civil Suit No. 57/89. 2. The appellant filed a suit against the respondent for ejectment and arrears of rent amounting to Rs. 375/- between the period of 1-11-87 to 31-1-1988. It appears that the grounds for ejectment were under Sections 12 (1) (a), 12 (1) (b) and 12 (1) (c) of the M.P. Accommodation Control Act (hereforth the Act). So far ground for ejectment for non-payment of it arrears of rent is concerned it was alleged that the respondent had not paid Rs. 375/-despite service of notice of demand, even after two months of receipt of notice till the filing of the suit. The ground for ejectment under Section 12(1) (b) of the Act was pleaded by saying that the respondent No. 1 Mataprasad Gupta had sublet the suit house to Ramesh Kumar respondent No. 2 without any consent of the appellant in writing. It was further alleged that the respondent No. 1 had sublet the suit premises to the respondent No. 2 for running a flour mill in the premises. It was stated in the plaint that subletting for the purpose of running a flour mill amounted to nuisance within the meaning of Section 12 (1) (c) of the Act. 3. The respondent No. 1 Mataprasad Gupta actually filed the written statement. However, the written statement appeared to have been filed on behalf of respondent No. 2 also for the reason it bore signature of Rakesh Kumar. In this written statement the allegations made in the plaint were denied. It was pleaded that Mataprasad Gupta never sublet the suit premises for running a flour mill to Ramesh Kumar and therefore the question of eviction under Section 12 (1) (b) or 12 (1) (c) of the Act did not arise. The non-payment of rent was also denied by saying that the rent was deposited with the Rent Controlling Authority, Jabalpur with the consent of the appellant. It was also said in the alternative that the rent was being remitted by money order. 4. The non-payment of rent was also denied by saying that the rent was deposited with the Rent Controlling Authority, Jabalpur with the consent of the appellant. It was also said in the alternative that the rent was being remitted by money order. 4. The Trial Court on the pleadings of the parties framed as many as 10 issues and tried the case of the parties. The Trial Court came to the conclusion that respondent No. 1 Mataprasad is liable to be evicted from the suit premises and accordingly decree for eviction was granted. The trial Court did not find that the respondent No. 1 was liable to be evicted under Section 12 (1) (a) and 12 (1) (c) of the Act. Nor did the Trial Court grant decree regarding arrears of rent in favour of the appellant. However, the Trial Court granted decree under Section 12 (1) (b) of the Act for eviction of the appellant from the suit premises and granted one month's time to the respondent No. 1 to vacate the suit house. 5. The respondent No. 1 filed an appeal against the judgment and decree of the Trial Court which was reversed by the Lower Appellate Court on the ground that the finding regarding subletting of the suit house was not proved by the appellant in accordance with law and therefore the respondent No. 1 was not liable to be evicted. 6. In this appeal the following substantial question of law was framed by this Court by order dated 28-6-92 :-- "Whether on the fact of the evidence of P.W. 2 (defendant No. 2) the reversal of the finding of the Appellate Court (Trial Court) on the question of sub-letting is just and is in accordance with law?" 7. In this appeal the learned counsel for the appellant argued that the unrebutted testimony of Ramesh Kumar (P.W. 2) was accepted by the Trial Court for arriving at the finding that the suit premises were sublet and the Lower Appellate Court should not have ignored the testimony of Ramesh Kumar (P.W. 2) as he was defendant No. 2 in the case. He had entered the witness box as defendant No. 2 and had virtually supported the case of the appellant by stating that the suit premises were sublet to him and he was not working as the servant of the respondent No. 1. He had entered the witness box as defendant No. 2 and had virtually supported the case of the appellant by stating that the suit premises were sublet to him and he was not working as the servant of the respondent No. 1. This witness was not cross-examined by the respondent No. 1 and there was no reason to discard his testimony. The reversion of the finding of the Trial Court by the Lower Appellate Court was perverse and could not be sustained in the eyes of law. Learned counsel for the respondent on the other hand tried to support the decree of the Lower Appellate Court by referring to Paragraph 8 of the judgment of the Lower Appellate Court wherein the Lower Appellate Court had held that Ramesh had given his evidence against his pleadings in the written statement and further on the ground that the appellant did not rebut the evidence of respondent No. 1. That flour mill was running from the very first day of his tenancy. 8. The Court does not accept the vague assertion of the counsel for the respondent No. 1 that counsel appearing for his client did not cross-examine the respondent No. 2 when he entered the witness box on the ground that he was arrayed as defendant No. 2. The formost question in the mind of the Court is if any opportunity was given by the Trial Court to the counsel for the respondent No. 1 to cross-examine this witness and it appears from the order-sheets on record that when the respondent No. 2 entered the witness box on 16-2-90, the Court waited upto 4 P.M. for counsel to cross-examine the witness Ramesh Kumar. Thereafter, the case was adjourned to 6-3-90. On 6-3-90 also Ramesh Kumar was present. His signature is found in the order sheet. The respondent No. 1 who was present in the Court sought adjournment on the ground that somebody had died in the family of his Counsel. The case was therefore adjourned to 4-4-90 for cross-examination of plaintiffs witness. Thereafter, the case was adjourned to 6-3-90. On 6-3-90 also Ramesh Kumar was present. His signature is found in the order sheet. The respondent No. 1 who was present in the Court sought adjournment on the ground that somebody had died in the family of his Counsel. The case was therefore adjourned to 4-4-90 for cross-examination of plaintiffs witness. On 4-4-90 also the counsel of the respondent No. 1 and the respondent No. 2 too was present when the case was called and the respondent No. 1 requested the Court to fix the case at 3 P.M. and further the case was adjourned to 4 P.M. and thereafter at 4 P.M. when the counsel for the respondent No. 1 did not appear for cross-examination then the Court below closed the evidence of appellant/plaintiff and directed the respondent No. 2 to examine his witness on the next date of hearing. Thus, it is clear from the order-sheets that the respondent No. 1 was given full opportunity to cross-examine Ramesh respondent No. 2 and to support the case of the appellant. It may be that the respondent No. 2 may have made a complete volte face and had spoken a lie in the Court of law. But this fact had to be established like any other one by evidence on record. The counsel for respondent No. 1 achieved nothing for his client when absented himself at the time of cross-examination of the respondent No. 2, who appeared as the witness of the plaintiff. On the other hand the very omission gives an impression to the mind in favour of the case of the appellant. The uncross-examined testimony of Ramesh is to the effect that he had not signed the written statement purported to be jointly filed by respondent No. 1 and his counsel. In the absence of any cross-examination on behalf of respondent No. 1, the unchallenged testimony of respondent No. 2 Ramesh Kumar was accepted by the Trial Court, and therefore there was no occasion for the Lower Appellate Court to hold that the testimony of this witness as a whole cannot be accepted on the ground that he was denying the statement made in his written statement. The reason given by Lower Appellate Court is not accepted because it ignores the fact that the respondent No. 2 stated that he had never signed the written statement. The reason given by Lower Appellate Court is not accepted because it ignores the fact that the respondent No. 2 stated that he had never signed the written statement. It is elementary that when the witness stated that he did not sign the written statement, he cannot be held to deny the allegations in written statement. In view of this, the finding of the Lower Appellate Court on this ground appears to be totally perverse. So far as the other aspect of the matter relied upon by the learned counsel for the respondent No. 1 is concerned that the appellant did not deny the running of the flour mill. It is neither here nor there. In Paragraph 2 of his statement the appellant asserted that Ramesh was running the flour mill and he was also doing the business of cycle shop. It was also stated by this witness in Para 7 that he had initially let-out the suit premises for running a flour mill to respondent No. 1. Under these circumstances the statement of this witness that the respondent No. 1 had allowed the respondent No. 2 to run the flour mill was rightly accepted by the Trial Court. Moreover the Lower Appellate Court ignored the vital evidence of Ramesh Kumar who stated in Para 2 of his deposition to the effect that the had taken the premises for running the flour mill at Rs. 25/- per day from respondent No. 1 Mataprasad Gupta. In other words Mataprasad had sublet the flour mill to him. The finding of the Lower Appellate Court is not only perverse, but it is arrived at by ignoring vital piece of evidence against the respondent No. 1. Learned counsel for the respondent No. 1 also argued when a suit is filed against the tenant the burden lies on the landlord to say that the suit premises was sublet. In this connection Section 106 of the Evidence Act would be attracted because the question of subletting is best known to the tenant and the sub-tenant and not to the landlord. Section 106 of the Evidence Act says when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In this connection Section 106 of the Evidence Act would be attracted because the question of subletting is best known to the tenant and the sub-tenant and not to the landlord. Section 106 of the Evidence Act says when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It is true that in this case the negative burden is cast upon the tenant to prove that the tenanted premises is not sublet, but this could not be otherwise. Therefore under Section 12 (1) (b) of the Act, the burden should be placed on the tenant. Under these facts and circumstances, since it is negative burden, the tenant may not be required to prove his case to the hilt but he could place-material on record to disprove the assertion of the plaintiff that the suit house was sublet. In this connection learned counsel for the appellant had referred a decision of the Supreme Court under Section 12 (1) (b) of the Act. This case is reported in 1998 (II) M.P. W. 1 (Bharat Sales Ltd. Vs. Life Insurance Corporation of India). It is pointed out that in that case that subletting by its very nature transaction between the tenant and subtenant and therefore the landlord would not be in a position to produce direct evidence of the transaction. This fact is best known to the tenant or subtenant. He can only prove certain circumstances pointing to subletting and in such circumstances it was not necessary to prove the consideration on which the suit house was sublet. It appears from the ruling of the Supreme Court that the Court gave great emphasis to delivery of possession to the subtenant along with circumstances indicating that tenant had lost central over the tenanted premises and it was exclusively possessed and utilised by sub-tenant. However in the present case the sub-tenant himself entered the witness box to state that suit premises were sublet at a given rate o rent. This testimony was not challenged in cross-examination and what is there important it was accepted by the Trial Court. Consequently the Lower Appellate Courts conclusion for the reasons already given, appeared to have no legal sanction in the eye of law. 9. The result of the aforesaid discussion is that this appeal succeeds and is allowed. This testimony was not challenged in cross-examination and what is there important it was accepted by the Trial Court. Consequently the Lower Appellate Courts conclusion for the reasons already given, appeared to have no legal sanction in the eye of law. 9. The result of the aforesaid discussion is that this appeal succeeds and is allowed. The judgment and decree of the Lower Appellate Court is hereby set-aside and that of the Trial Court is restored. The suit is accordingly decreed under Section 12 (1) (b) of the M.P. Accommodation Control Act. There shall be no order as to costs. 10. Second Appeal allowed.