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2018 DIGILAW 166 (JHR)

Narendra Kumar Vora v. Gurwant V Patel

2018-01-18

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. – Aggrieved of order dated 06.04.2017 passed in Title (Eviction) Suit No.10 of 2004 by which the application filed by the defendant for summoning the register from the postal department has been rejected, the defendant has approached this Court. 2. Title (Eviction) Suit No.10 of 2004 was instituted for a decree of eviction of the defendant from Schedule-B premises and for recovery of khas possession of the plaintiff over there. Another relief sought by the plaintiff was for recovery of arrears of rent from the defendant. The plaintiff pleaded that he owned and possessed 6 decimal of land comprising a double-storied building over Plot No.6888 under Khata No.405 within Mouza-Chas, PS-Chas, District-Bokaro. The defendant was inducted on month to month tenancy in respect of two shop rooms under the ground floor, that is, Schedule-B property on monthly rent of Rs.1,000/- besides electricity charges. The suit was instituted on the ground of default in payment of rent. The plaintiff has pleaded that the defendant continued to pay rent regularly till 2000, but thereafter the rent for the suit premises was not paid regularly. The defendant contested the suit disputing service of notice through registered post. On 23.09.2004, the plaintiff filed list of documents, however, the envelope alongwith A/D card by which notice was allegedly sent to the defendant did not figure in the list of documents. The defendant filed additional written statement on 05.09.2007 which was accepted by the court. Issues were subsequently recast and the following two issues were settled: (i) Is the suit barred for non-joinder of Deepak Electrical as party, (ii) Whether the alleged legal notice through lawyer has duly been sent and served through postal department. 3. In the meantime, the application for recall of P.W.3 was filed which was allowed vide order dated 27.07.2012. Mr. V.P. Singh, the learned Senior counsel for the petitioner, however, submits that the plaintiff did not produce P.W.3 for his cross-examination on the date fixed. 4. Contending that the defendant must be provided an opportunity to disprove a fact in issue, Mr. V.P. Singh, the learned Senior counsel for the petitioner assails the legality of order dated 06.04.2017. Contention raised on behalf of the petitioner is, that for bringing true facts on record the prayer calling for register from postal department vide application dated 27.02.2017 should have been allowed. 5. V.P. Singh, the learned Senior counsel for the petitioner assails the legality of order dated 06.04.2017. Contention raised on behalf of the petitioner is, that for bringing true facts on record the prayer calling for register from postal department vide application dated 27.02.2017 should have been allowed. 5. Section 59 of the Indian Evidence Act, 1872 provides that all facts, except the contents of documents or electronic records, may be proved by oral evidence. Section 60 mandates that oral evidence must be direct. In a suit filed for ejection of the defendant, it is for the plaintiff to establish prima-facie relationship of landlord-tenant between the parties, the default in payment of rent by the defendant and service of notice upon him. Whether notice through registered post was sent by the plaintiff (as pleaded in paragraph no.10 of the plaint) or not, is for the plaintiff to prove. The contention that the plaintiff who has failed to produce the registered postal cover with A/D card but insisted that a legal notice was issued to the defendant and for that reason the register from the postal department should be called at the instance of the defendant, in my opinion, is not the procedure under the Civil Procedure Code which a defendant can adopt. Even in the cases where the defendant has failed to establish its defence conclusively, the suit cannot be decreed on the weakness in the defendant''s case. Parties must stand on their own legs and it is for the plaintiff to prove its case, is the law declared by the Supreme Court. In the above facts, in my opinion, application dated 27.02.2017 was misconceived and it has been rightly dismissed by the trial Judge. 6. Finding no infirmity in the impugned order dated 06.04.2017, the writ petition is dismissed. I.A. No. 5809 of 2017 also stands disposed of.