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2007 DIGILAW 1228 (MP)

Rajendra Gupta v. Kishori Lal

2007-11-28

P.K.JAISWAL

body2007
ORDER 1. Heard on admission. 2. This appeal is filed by the defendant against the judgment and decree dated 31.8.2006 passed by Fourth Additional District Judge, Gwalior in Civil Appeal No. 26-A/2006, whereby learned Additional District Judge affirmed the judgment and decree of the trial Court by which suit of the respondent-plaintiff was decreed under section 12 (1) (c) of the M.P. Accommodation Control Act, 1961 (for short 'the Act'). 3. The sole contention of the learned counsel for the appellant is that on 19.2.2004, the case was fixed for cross-examination of plaintiff witnesses. On that date, appellant-defendant was present in the Court but his counsel was not present and, therefore, trial Court closed the right to cross examine the plaintiff witnesses and decreed the suit of the respondent under section 12 (1) (c) of the Act. Learned counsel for the appellant drew my attention to the order-sheet dated 19.2.2004. On perusal of the record of the trial Court, the affidavit of the plaintiff witnesses under Order 18 Rule 4 of CPC was filed before the trial Court. On 19.2.2004, plaintiff witnesses Kishori Lal and Umesh Gupta were present. At the early hours of the day, respondent sought time and prayed that the matter shall be taken up at 4:00 p.m. At the request of the defendant, the matter is taken up at 4:00 p.m. and upto 4:30 p.m., his counsel was not present. The trial Court directed the defendant to cross examine the plaintiff witnesses but he refused to do so and, therefore, trial Court closed the right of the defendant to cross examination the plaintiff witnesses and fixed the case for cross-examination of the plaintiff witness Shri Umesh Gupta on 24.2.2004. On 24.2.2004, PW 3 Umesh Chand Gupta was cross-examined by the defendant counsel. Thereafter, the appellant filed an application under section 151 of CrPC for recalling the order dated 19.2.2004. The trial Court vide order dated 11.8.2004 rejected the said application by holding that affidavit of the plaintiff witnesses was filed on 28.11.2003 and case was fixed for cross-examination of the plaintiff witnesses on 9.12.2003. On 9.12.2003, the defendant is stead of cross-examining the plaintiff witnesses filed an application under Order 18 Rule 4 of CPC which was rejected on 5.2.2004 and fixed the case for recalling the evidence for cross-examination of the defendant witnesses on 19.2.2004. On 9.12.2003, the defendant is stead of cross-examining the plaintiff witnesses filed an application under Order 18 Rule 4 of CPC which was rejected on 5.2.2004 and fixed the case for recalling the evidence for cross-examination of the defendant witnesses on 19.2.2004. The defendant was granted ample opportunity to ask his counsel to present before the Court and cross-examine the plaintiff witness but he failed to appear on 19.2.2004 and the cause shown by him that he was busy in civil suit before Fifth Civil Judge, Class I, Gwalior was not found correct because no order-sheet of the said case was filed. 4. The trial Court after considering the oral and documentary evidence of the parties gave a finding in Paras 23 to 25 and has held that appellant without permission from the landlord closed the door and damaged the house of the respondent. The matter was reported at Police Station vide Ex. P-3 and in respect of illegal construction, Commissioner, Municipal Corporation submitted its report vide Ex. P-4. On the basis of the above, trial Court granted decree under section 12 (1) (c) of the Act. 5. The lower appellate Court has held that appellant-defendant was given sufficient opportunity to cross-examine the plaintiff witnesses. The appellant in spite of sufficient opportunity failed to cross-examined and only cross-examined the PW 3 on the next date of hearing. 6. On perusal of the material available on record as well as the order passed by the lower appellate Court, I am of the considered view that Courts below have not committed any legal error in decreeing the suit of the respondent the finding recorded by the Courts below is a finding of fact based on evidence on record. It is not the case of the appellant that finding is contrary to the evidence on record or is perverse. The reasoning assigned by the lower appellate Court while dismissing the appeal of the appellant is just and proper. No substantial question of law arises in this appeal, the appeal filed by the appellant has no merit and is accordingly dismissed in limine.