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2010 DIGILAW 475 (GAU)

Bimal Dey v. Basudev Subba

2010-07-14

TINLIANTHANG VAIPHEI

body2010
JUDGMENT T. Vaiphei, J. 1. This appeal preferred by the Appellant is directed against the common ex-parte decree dated 8.4.2009 passed by the learned Assistant District Judge, Shillong, in Title Suit No. 4 (H) of 2006 decreeing the suit in favour of the Respondents. 2. The facts of the case leading to this appeal may be briefly noted at the outset. The case of the Appellant is that he is the tenant of the Respondents by paying monthly rent. He deposited a sum of Rs. 360/- as the monthly rent for the months of May and June, 2009 with the Court as the Respondents refused to accept the same. He claims that he has never been a defaulter in payment of the monthly rent. However, the Respondents instituted the suit before the learned Assistant District Judge, Shillong for decrees of eviction, recovery of possession and arrears of rent, etc. on the ground of irregular payment of rents, nuisance and bona fide requirement. The trial Court by the order dated 4.4.2007 directed that the suit be proceeded against him ex-parte. He then filed an application on 23.4.2007 for vacating the ex-parte order against him, which was, however, rejected by the trial Court vide the order dated 5.11.2007. Aggrieved by this, he preferred an appeal from the said order before the learned Additional District, Judge, Shillong, which was registered as F.A.O. No. 12 (H) of 2007. The appeal was dismissed by the appellate Court on 30.3.2009 on the ground that no appeal was maintainable under Order 43, Rule 1 of the Code of Civil Procedure against the order passed under Order 9, Rule 7. Thereafter, the trial Court, without allowing him to participate in the proceeding of Title Suit No. 4 (H) of 2006, passed the impugned judgment dated 30.3.2009 and decree dated 8.4.2009. Hence, this appeal. 3. Assailing the decree, Mr. M.F. Qureshi, the learned counsel for the Appellant, submits that the decree was passed by the trial Court without proper application of mind and without allowing the Appellant to participate in the proceeding on the ground that the suit had proceeded ex-parte: even if the suit had proceeded ex-parte the right of the Appellant to cross-examine the witness of the Respondents and to adduce his rebuttal evidence remained protected by law and, as such, the decree cannot be sustained in law. He also contends that there is no evidence on record to show that he is a defaulter in payment of rent or that there is bonafide requirement on the part of the Respondents in respect of the tenanted premises, and the findings of the trial Court in that behalf are perverse and are, accordingly, liable to be set aside. He maintains that even if the suit had proceeded ex-parte, the trial Court was not absolved of its duty to weigh the evidence adduced by the Respondents, and if no case was made out by the Respondents as in this case. It ought to have dismissed the suit. It is further contended by the learned counsel that the trial Court has completely overlooked the fact that no notice under Section 106 of the Transfer of Property Act, 1882, in the absence of written tenancy agreement, had been issued by the Respondents upon the Appellant and that the conditions prescribed in Section 5(1)(c) and (e) of the Meghalaya Urban Rent Control Act, 1972 are not fulfilled by them for their entitlement to eviction of the Respondents. 4. The admitted facts are that the Appellant, in response to the summons, entered his appearance before the trial Court on 20.3.2006 and the trial Court then fixed for written statement. However, the Presiding Officer retired from service on or about 20.4.2006, which was the date fixed for filing of the written statement by the Appellant and the Court was without a Presiding Officer for about a year. The new Presiding Officer assumed the office on 7.2.2007 and directed the parties to appear before the Court on 13.3.2007. On 13.3.2007, both the parties did not put in their appearance whereupon the Court again fixed 4.4.2007 for their appearance. On 4.4.2007, the Respondents appeared before the Court through their counsel. As the Appellant was absent, the Court directed that the suit be proceeded against him ex-parte and then fixed for ex-parte hearing. On 23.4.2007, the Respondents filed the examination-in-chief of P.W.1 by affidavit. On the same day, the Appellant filed an application for setting aside the ex-parte order dated 4.4.2007. The Court then fixed 11.5.2007 for hearing on the said application. The trial Court ultimately heard the said application on 25.10.2007 and by the order dated 5.11.2007 rejected the application and fixed 3.12.2007 for the evidence of the Respondents. On the same day, the Appellant filed an application for setting aside the ex-parte order dated 4.4.2007. The Court then fixed 11.5.2007 for hearing on the said application. The trial Court ultimately heard the said application on 25.10.2007 and by the order dated 5.11.2007 rejected the application and fixed 3.12.2007 for the evidence of the Respondents. On 3.12.2007, the trial Court by invoking Order XVIII, Rule (4)(?) proceeded to dispose of the suit and fixed 19.2.2008 for judgment. It appears that the Appellant, in the meantime, preferred an appeal being F.A.O. No. 9(H) of 2007 against the order rejecting his application for setting aside the ex-parte order dated 23.4.2007 before the learned Additional District Judge, Shillong. The appeal was, however, dismissed on 30.3.2009 by the learned Additional District Judge holding that no appeal was maintainable under Order 43, Rule 1 of the Code against the order passed under Order 9, Rule 7 of the Code. The case was again placed before the trial Court, which, in the presence of both the parties, by the order dated 30.9.2008 fixed 7.11.2008 for the evidence of the Respondents. On 7.11.2008, the Respondents informed the Court that as they had already submitted their evidence by affidavit, judgment might be pronounced on the next date. It is not clear from this order that the Appellant prayed for cross-examining the witness of the Respondents nor is it clear that he was present in Court on that day. The ex-parte judgment decreeing the suit was delivered by the trial Court on 30.3.2009. It may be not at this stage that the Appellant did not challenge the order dated 30.3.2009 dismissing F.A.O. No. 9(H) of 2007 preferred by him before the learned Additional District Judge on 30.3.2009. In my judgment, it is now, therefore, too late in the day for the Appellant to question the legality of the ex-parte proceeding against him. 5. What is the effect of the ex-parte order passed by a Court under Order 9, Rule 7 of the Code, which is not set aside? This provision is couched in the Mowing language: 7. Procedure where Defendant appears on the day of adjourned hearing and assigns good cause for previous non-appearance. 5. What is the effect of the ex-parte order passed by a Court under Order 9, Rule 7 of the Code, which is not set aside? This provision is couched in the Mowing language: 7. Procedure where Defendant appears on the day of adjourned hearing and assigns good cause for previous non-appearance. Where the Court has adjourned the hearing of the suit ex-parte, and the Defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. 6. The learned Single Judge of the Madhya Pradesh High Court; Gwalior Bench, with due respect, has elaborately dealt with and completely answered the above question, if I may say so, correctly, in Suraj Pal and Ors. v. Mandir Mahadeoji and Ram Janki Village reported in 2000 (4) MPHT 259 in the following manner: 9. The learned counsel for the applicants has strenuously urged that the trial Court has acted with material irregularity in exercise of its jurisdiction in shutting out the applicants from leading evidence in rebuttal. The contention is that although in the absence of a written statement the applicants could not be entitled under the law to lead evidence in support of special pleas but otherwise they could not be prevented from leading evidence in rebuttal to negative or demolish the Plaintiff's case. 10. In support of the aforesaid submission, the learned counsel for the applicants has heavily relied upon the observations made by this Court in its decision in the case of Rajrani and Ors. v. Yadram Chaurasia and Ors. reported in 1979 JLJ 172 . 11. In the aforesaid decision, referring to the observations made by the Apex Court in the case of Sangram Singh v. Election Tribunal, Kotah and Anr. v. Yadram Chaurasia and Ors. reported in 1979 JLJ 172 . 11. In the aforesaid decision, referring to the observations made by the Apex Court in the case of Sangram Singh v. Election Tribunal, Kotah and Anr. reported in AIR 1955 SC 425 , it had been pointed out that even in a situation where the Defendant who had not filed a written statement, such defaulting Defendant could join the proceedings at the stage he appeared and could cross-examine the Plaintiff's witnesses and lead evidence in rebuttal in case the suit had not proceeded beyond the stage of framing of the issue, clarifying however that the only limitation in such case would be that such a Defendant would not be entitled to lead evidence or cross-examine on facts which may amount to special pleas which he could have raised had he filed a written statement as that would prejudice the Plaintiffs as he had no notice of those facts. 12. Taking into consideration the observations made by the Apex Court in its decision in the case of Sangram Singh (supra), there can be no manner of doubt that the Defendant in such a situation, where he had not filed a written statement or had put in appearance at a later stage, has not right to set back the hands of the clock. He has to remain content to proceed from the stage at which he comes in. 13. In the present case, the Defendants-applicants had chosen not to file a written statement. In such a situation, there could be no occasion for permitting them to lead any evidence in support of pleas which had never been set up. Their right to demolish the Plaintiff's case on the evidence and the materials brought on record by the Plaintiff however could not be denied. 14. The learned Counsel for the Plaintiff-Respondent has stated that the Plaintiff has already closed its evidence and the Defendant had been permitted to cross-examine the Plaintiff's witnesses. 15. In the aforesaid situation, the question which has come up for consideration is as to whether the Defendants-applicants could be permitted to lead evidence in rebuttal and if so for which purpose? 16. 15. In the aforesaid situation, the question which has come up for consideration is as to whether the Defendants-applicants could be permitted to lead evidence in rebuttal and if so for which purpose? 16. This Court in its decision in the case of Rajrani (supra) has already clarified that in a case where the written statement has not been filed and the issues have also not been framed, the Defendant could cross-examine the Plaintiff's witnesses only on such facts which may not amount to special pleas which could have been raised had a written statement been filed but such a Defendant could lead evidence in rebuttal in respect of the matters which fell beyond the purview of special pleas but had the effect of demolishing the Plaintiff's case. Thus, a very limited type of evidence is permissible to be led in rebuttal. The observation of the trial Court that no evidence in rebuttal could be led at all does not appear to be correct. 7. The term "special pleas" or "special pleadings" means a responsive pleading that does more than merely deny allegations, as by introducing new matter to justify an otherwise blameworthy act. Thus even after closing of evidence by the Plaintiff, the Defendant has the limited right to cross-examine the witnesses so examined and also can even lead rebuttal evidence on the evidence and materials already brought on record but does not have the right to introduce a new case or evidence which he could do so only had he filed a written statement. In the instant case, after his application for setting aside the ex-parte order dated 4.4.2007 was rejected, the Appellant filed an appeal before the learned Additional District Judge, Shillong challenging the said order of rejection, but the appeal was dismissed on the ground of non-maintainability. As no further appeal or revision was preferred by him thereafter, the ex-parte order dated 4.4.2007 has attained finality. By this time, the examination-in-chief of P.W. 1 by affidavit was already filed by the Respondents. On 30.9.2008, the Appellant filed his hazira whereupon the trial Court fixed 7.11.2008 for evidence of the Respondents. On 7.11.2008, the Respondents asked the trial Court pronounce the judgment as they had already filed their examination-in-chief by affidavit. The judgment was ultimately pronounced on 30.3.2009 by decreeing the suit ex-parte. On 30.9.2008, the Appellant filed his hazira whereupon the trial Court fixed 7.11.2008 for evidence of the Respondents. On 7.11.2008, the Respondents asked the trial Court pronounce the judgment as they had already filed their examination-in-chief by affidavit. The judgment was ultimately pronounced on 30.3.2009 by decreeing the suit ex-parte. There is no evidence on record to indicate that the Appellant cross-examined P.W. 1 nor did he make a prayer to cross-examine the witness though it was his right to participate and cross-examine the witness. All that he was prohibited at that stage was not to introduce facts or pleadings which ought to have been pleaded by him by filing a written statement had he filed the same. In my opinion, on the facts so established, the Appellant has waived his right to participate in the proceeding or adduce evidence in rebuttal or cross-examine P.W. 1. Therefore, the contention of Mr. M.F. Qureshi, the learned Counsel for the Appellant that the Appellant was not given an opportunity of cross-examining P.W. 1 is noted only to be summarily rejected. 8. It is next contended by the learned Counsel for the Appellant that the trial Court acted mechanically and did not properly appreciate the evidence on record, which ought to have been ignored by it as they are based on no evidence. What is the procedure to be adopted by the trial Court if a suit proceeds ex-parte without a written statement filed by the Defendant, is explained by the Apex Court in Ramesh Chand Ardawatiya v. Anil Panjwani 2003 SAR (Civil) 543 in the following manner. 33. ...Even if the suit proceeds ex-parte and in the absence of a written statement, unless the applicability of Order VIII Rule 10 of the Code of Civil Procedure is attracted and the Court acts thereunder, the necessity of proof by the Plaintiff of his case to the satisfaction of the Court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the Plaintiff is not very heavy. A prima facie of the relevant facts constituting the cause of action would suffice and the Court would grant the Plaintiff such relief as to which he may in law be found entitled. In the absence of denial of plaint averments the burden of proof on the Plaintiff is not very heavy. A prima facie of the relevant facts constituting the cause of action would suffice and the Court would grant the Plaintiff such relief as to which he may in law be found entitled. In a case which has proceeded ex-parte the Court is not bound to frame issues under Order XIV and deliver the judgment on every issue as required by Order XX, Rule 5. Yet the Trial Court would scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the "points for determination" and proceed to construct the ex-parte judgment dealing with the points at issue one by one. Merely because the Defendant is absent the Court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence. 9. In the case at hand, the suit filed by the Respondents was one for eviction of the Appellant from the tenanted premises and for recovery of arrears of rent due from him. The fact that the Appellant is the tenant of the Respondents is admitted by him in his memo of appeal. All that he denies is that he has never been a defaulter in paying the monthly rent. In the affidavit evidence, P.W. 1 i.e. the Plaintiff-Respondent No. 1, deposed that the Appellant had been very irregular in paying the monthly rent since the month of August, 2001 and that after several reminders, he paid to him Rs. 1,500/- on 20.7.2004, Rs. 1,500/- on 28.12.2004, Rs. 1,000/- on 27.2.2005, Rs. 1,200/- on 14.4.2005 and Rs. 600/- on 16.7.2005. According to P.W. 1, the total amount of rent outstanding against the Appellant was Rs. 24,000/-. He further deposed that the tenanted portion of the building was in a dilapidated condition and that the same was bona fide required by him for his own use. Now, under Section 102, Evidence Act, 1872, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Thus, the burden of proof lies at first on that party who would be unsuccessful if no evidence at all were given on either side. Now, under Section 102, Evidence Act, 1872, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Thus, the burden of proof lies at first on that party who would be unsuccessful if no evidence at all were given on either side. This being the test, the burden of proof cannot remain constant but must shift as soon as he produces evidence which prima facie gives rise to a presumption in his favour. It may again shift back on him if the rebutting evidence produced by his opponent preponderates. In the case at hand, the Respondents would have failed had no evidence been led by them. But, as noted earlier, they have examined P.W. 1 in affidavit and have, therefore, established a prima facie case giving rise to a presumption in their favour. It was then for the Appellant, be it an ex-parte proceeding or otherwise, to produce rebuttal evidence to demolish the case of the Respondents that he was a defaulter in payment of rent or that the tenanted premises were bona fide required by them. As already noticed, no written statement was filed by him: no cross-examination of P.W. 1 was also done by him nor was rebuttal evidence led by him on the evidence and materials brought on record by the Respondents to demolish their pleaded case. The law is now taken to be well-settled that where in an eviction suit, if the tenant wants to defeat the claim of the landlord that he is not a defaulter in payment of rent or that the tenanted house is not bona fide required by the landlord, it is for the tenant to plead and establish the same. The Appellant has miserably failed to discharge the onus of proving that he is not a defaulter or that the Respondents do not bona fide require the tenanted premises for their use. In that view of the matter, I do not find any infirmity in the findings of the learned Assistant District Judge warranting the interference of this Court in the impugned decree. 10. For what has been stated above, there is no merit in this appeal, which is hereby dismissed. However, on the facts and in the circumstances of the case, I direct the parties to bear their respective costs. Let the decree stand. 10. For what has been stated above, there is no merit in this appeal, which is hereby dismissed. However, on the facts and in the circumstances of the case, I direct the parties to bear their respective costs. Let the decree stand. Transmit the L.C. record forthwith. Appeal dismissed.