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2016 DIGILAW 3904 (ALL)

Varun Agrawal v. Jamuna Devi

2016-12-02

ANJANI KUMAR MISHRA

body2016
JUDGMENT Anjani Kumar Mishra, J. -- Heard Shri P.K. Jain, learned Senior Advocate for the revisionist and Shri Ranjit Saxena, learned counsel appearing for the opposite party. 2. This revision has been filed challenging the order dated 28.5.2016 passed by the Additional District Judge, Court No. 9, Varanasi, in S.C.C. Suit No. 29 of 2007 (Smt. Jamuna Devi vs. Sri Varun Agrawal), whereby the suit has been decreed. 3. The said suit was filed by the respondent for arrears of rent, ejectment and means profits, regarding a shop. 4. The contention of learned counsel for the revisionist is that the original plaintiff Smt. Jamuna Devi died during the pendency of the proceedings. She was substituted by her heirs and legal representatives. Ajay Kumar, one of her legal representatives, deposed as P.W. 1 and his statement-in-chief was filed on affidavit. Thereafter, he was cross-examined on several dates. However, before the cross-examination could be completed, he also died. It is also submitted that no other witness deposed on behalf of the plaintiffs. 5. Since, the cross-examination of P.W. 1 was not complete, prior to his death, his statement could not have been relied upon by the court below for decreeing the suit. It is, therefore, submitted that the judgment in the suit is in the teeth of the provisions of Section 33 of the Indian Evidence Act, 1872, and therefore, perverse. 6. Reliance has been placed by counsel for the revisionist, upon the Judgment in the case of Narsingh Das vs. Gokul Prasad and others; AIR 1928 All. 140, which holds that the statement of a witness, who dies before his cross-examination, is inadmissible in evidence. 7. Reliance has also been placed upon the decision in the case of Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra and others; AIR 2013 SC 58 , whereby it has been held that an affidavit of one's statement cannot be regarded as evidence, on the basis of which, a Court can come to a conclusion as regards a particular situation. However, the same can be relied upon, in case, opportunity is given to other side to cross-examine. 8. The contention, therefore, is that since, the court below has placed reliance upon inadmissible evidence, the impugned judgment is perverse and liable to be set aside on this short ground. 9. Other legal pleas have also been raised. However, the same can be relied upon, in case, opportunity is given to other side to cross-examine. 8. The contention, therefore, is that since, the court below has placed reliance upon inadmissible evidence, the impugned judgment is perverse and liable to be set aside on this short ground. 9. Other legal pleas have also been raised. However, this Court does not consider it expedient to refer to the other submissions made as the case can be decided on the submission noted herein above. 10. Shri Ranjeet Saxena, learned counsel for the respondent has reiterated the reasoning given in the impugned order for relying upon the statement of P.W. 1 while passing the impugned order. 11. He has tried to contend that the statement-in-chief of P.W. 1 was filed on affidavit in the year 2009. Thereafter on several dates, he was also cross-examined. However, since, the revisionist-defendant did not complete the cross-examination, the death of the said P.W. 1, thereafter, would not render his statement inadmissible in evidence. It is further contended that default in payment of rent was established on record and, therefore, the impugned order has rightly been passed. 12. I have considered the submissions made by learned counsel for the parties and have perused the impugned orders, which reveals that P.W. 1 was the sole witness in the case on behalf of plaintiff. 13. It is clear from a bare perusal of impugned order itself that the cross-examination of P.W. 1 could not be completed before his death. This has not been denied by learned counsel for the opposite parties. 14. Under the circumstances, therefore, and especially in view of the judgments cited on behalf of the revisionist, the statement of P.W. 1, as contained in his affidavit, alone, cannot be the basis of the impugned order. The same could have been made on the basis of the impugned order, in case, the cross-examination of P.W. 1 was complete. 15. In view of above, the impugned order must necessarily be held to be perverse. The order impugned, therefore, cannot be sustained and is liable to be set aside. 16. Accordingly, S.C.C. Revision No. 257 of 2016 is allowed. 17. The impugned order dated 28.5.2016 is set aside and the matter is remanded back to the trial court to enable the surviving plaintiffs or the substituted heirs to adduce evidence to prove the plaint allegations. The order impugned, therefore, cannot be sustained and is liable to be set aside. 16. Accordingly, S.C.C. Revision No. 257 of 2016 is allowed. 17. The impugned order dated 28.5.2016 is set aside and the matter is remanded back to the trial court to enable the surviving plaintiffs or the substituted heirs to adduce evidence to prove the plaint allegations. The trial court may thereafter hear the parties and pass appropriate orders in the suit. 18. Insofar as, the connected S.C.C. Revision (Defective) No. 190 of 2016 is concerned, the same has been filed by the plaintiff, challenging the damages imposed and praying for its enhancement. 19. However, since, the order of eviction and damages has already been set aside by me in the connected S.C.C. Revision No. 257 of 2016, S.C.C. Revision (Defective) 190 of 2016 has been rendered infructuous and is, accordingly dismissed as such. 20. Accordingly, S.C.C. Revision No. 257 of 2016 is allowed, the order impugned dated 28.5.2016 is set aside and the matter is remanded to the trial court for a fresh decision in accordance with the observations/directions contained in the body of the judgment. 21. S.C.C. Revision (Defective) No. 190 of 2016 is dismissed as infructuous.