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2003 DIGILAW 414 (MP)

Fazal Abbas v. Shivram Sharma

2003-03-13

R.B.DIXIT

body2003
JUDGMENT This revision has been filed against the order dated 5.11.2001 passed by Rent Controlling Authority. Guna in Case No. 5-A/90-Rent-98-99 whereby directing eviction of the petitioners from the tenanted premises. The case of the respondent before the Rent Controlling Authority under section 23-1 of the M.P. Accommodation Control Act was that he is a retired employee of State Bank of Indore and needs the tenanted premises for his own use as well for use of his married sons. The petitioners contested the application on the ground that applicant is not the owner of the house as it was mortgaged to some Deepak Kumar. It was also contended that applicant owns other two houses in the city of Guna itself. The learned Rent Controlling Authority by the impugned order held that except the tenanted premises respondent has no other suitable accommodation for his residence and fort he residence of his family, therefore directed eviction from the tenanted premises by the impugned order. The first contention of the learned counsel of the petitioners is that the applicant had previously also filed a Civil Suit No. 26A/81 before Civil Judge, Class II, Guna, for the same purpose. However, that case was compromised. The learned trial Court has held that the suit was compromised on 9.8.1983 and since after lapse of about 16 years the situation has changed now, and therefore, filing of the previous suit has no adverse effect on the present proceedings. The Hon'ble Apex Court in the case of K.S. Sunderaraju Chttiar v. M.R. Ramchandra Naidu, reported in AIR 1994 SC 2129 has also observed that it should be borne in mind that cause for eviction is a recurring cause of action and even if the existence of such cause of action had not been found in a previous proceedings for eviction, the same cannot be discarded if such claim is established by cogent evidences adduced by the landlord in a subsequent proceeding. The next contention of the learned counsel of petitioners is that respondent is not governed by the definition of landlord envisaged under section 23-J of the M.P. Accommodation Control Act as he is neither a Government servant nor a servant of the company owned or controlled either by the Central or State Government. The next contention of the learned counsel of petitioners is that respondent is not governed by the definition of landlord envisaged under section 23-J of the M.P. Accommodation Control Act as he is neither a Government servant nor a servant of the company owned or controlled either by the Central or State Government. The learned counsel of respondent, on the other hand, has submitted that sub-clause (ii} of section 23-J of the Act applies to the respondent which envisaged that a retired servant of a company owned or controlled either by the Central or State Government is a landlord for the purpose of this chapter. A Division Bench of this Court in the case of Ranjit Narayan Haksar v. Surendra Verma, reported in 1994 JLJ 740 has made it clear that the expression 'Company' has a specific and restricted meaning as contained in the provisions of the Companies Act, 1956 as also a general meaning in the legal sense as in a association, collection of individuals or as the company incorporated by a Special Act of the legislature. 'Company' in the general legal sense can include what is known as statutory corporation, which is also regarded as a statutory company. There is nothing in the language or context of section 23-J (ii) indicating any intention to give a restricted meaning to the expression 'company'. The legislature did not refer to the Companies Act in section 23-J (ii) and did not specifically exclude statutory corporation. The expression 'Company' has been used in its general legal sense and takes in Government owned or controlled Statutory Corporations. The aforesaid Division Bench decision of this Court has been confirmed by the Hon'ble Supreme Court in the case of Surindra Verma v. Ranjeet Narayan Haksar, reported in 1995 JLJ 460 . It is not disputed that respondent is a retired employee of the State Bank of Indore. The Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, provides for acquisition and transfer of the undertakings and certain banking companies and section 9 of this Act provides that the Central Government may after consultation with the Reserve Bank, make a scheme for carrying out the provisions of this Act. For the aforesaid reason bank falls within the category of a company controlled by the Central Government. The provisions of section 23-J (ii), therefore, is applicable to the case of the respondent. For the aforesaid reason bank falls within the category of a company controlled by the Central Government. The provisions of section 23-J (ii), therefore, is applicable to the case of the respondent. Lastly, it has been vehemently argued by the learned counsel of petitioners that the learned trial Court has wrongly held in the impugned order that the petitioner Fazal Abbas has not examined himself. This is contrary to the record. I have perused the record of the trial Court from which it transpires that examination-in-chief of Fazal Abbas was incomplete on 23rd October 2000 and because petitioner has moved an application under Order 13 Rule 2 CPC lateron even when this application was allowed the examination-in-chief of Fazal Abbas was not complete and however he was not offered for cross-examination by other party. Even without completing his examination-in-chief the petitioner further examined his two witnesses and on 28th May 2001 declared his evidence closed, specifically stating that he does not want to adduce any other evidence. Even subsequently no request was made before the trial Court to re-summon the petitioner for completing his examination or offering him for cross-examination by the respondent. The Hon'ble Supreme Court in the case of Vidhyadhar v. Mankikrao and another reported in AIR 1999 SC 1441 , has held that where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. He did not state the facts pleaded in the written statement on oath in the trial Court and avoided the witness box so that he may not be cross-examined. In view of above position of law in the facts and circumstances of the present case, the incomplete examination-in-chief of the petitioner cannot be considered to be a evidence in the case, and, therefore, the learned trial Court has rightly held that the petitioner has not examined himself. For the reasons stated hereinabove, there is no substance in the revision and consequently revision fails and is dismissed.