Jharkhand High Court
Junnu Rain vs Raj Kishore on 23 February, 2022
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 15 of 2014
1. Junnu Rain
2. Kurtul Ain @ Annu
3. Haji Ali Hassan .... .... Appellants
Versus
1. Raj Kishore
2. Sanjeet Urvashi @ Brij Kishore .... .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellants : Mr. Amar Kumar Sinha, Advocate Mr. K.K.Ambastha, Advocate For the Respondents : Mr. Arun Kumar, Advocate C.A.V. ON 16.02.2022 PRONOUNCED ON 23 /02/2022
1. The plaintiffs are the appellants who have preferred the appeal against the judgment of reversal passed in Title Appeal No. 20 of 2006, whereby and whereunder the plaintiff's Eviction Suit No. 4 of 2002 decreed in favour of the plaintiffs, has been set aside.
2. The parties shall be referred to their placement in the original suit and will include their legal representatives.
3. The plaintiff landlady Bibi Sagirunnisha brought the suit against the tenants for eviction on the ground of default in payment of rent and on the ground of bonafide personal necessity. It has been averred by the plaintiff that there was default in payment of rent of Rs.600/- per month since April, 2001. The landlady was running a shop adjacent to the tenanted premise and wanted to widen and enlarge the shop for its requirement.
4. The case of the defendant is that there had been no default in payment of rent and the plaintiff-respondent had no bonafide need for the shop in question and the suit was only filed for an additional salami of Rs.1,00,000/- and to enhance the monthly rent from Rs.600/- to Rs.2000/-. It has been further pleaded that the shop in question was initially constructed by the appellant himself and only the open land was leased to them. The plea of bonafide necessity has been contested on the ground that plaintiff had other available vacant shops which can be used for widening her existing shop there.
5. On the basis of the pleadings of the parties the following main issues were framed :
2III. Whether the defendant No. 1 Raj Kishore Prasad is a monthly tenant of the plaintiff?
IV. Whether the defendant defaulted in payment of monthly rent since April, 2001?
V. Whether the plaintiff is entitled to recover the arrears of amount through judicial process?
VI. Whether the plaintiff has bonafide requirement of the disputed premises in order to widen her own shop?
VII. Whether the defendant No. 1 is entitled to adjust an amount of Rs.43,350/- against the arrears of rent?
6. The learned Trial Court decreed the suit after recording the following findings of facts :
i. Defendant No. 1, Rajkishore Prasad and defendant No. 2, Sanjiv Urvashi were the tenant in the disputed shop which was constructed by the plaintiff. The defendants were tenants within the meaning of Section 2(h) of the B.B.C. Act, 1982. ii. The plaintiff failed to prove that defendant had committed default in payment of rent for the month of April, 2001 to December, 2001 and, therefore, the plaintiff was not entitled to claim rent of this period.
iii. The suit has been decreed on the ground of personal necessity of the plaintiff landlady as there was a bonafide personal necessity of the shop by the plaintiff for widening the existing shop. The plaintiff was an old and infirm lady and was not in a position to walk and, therefore, had appointed P.W.-10 as the power of attorney holder on her behalf. One of the sons of the plaintiffs was unemployed who was running the shop of National Sports but since it was a very small shop, therefore, he faced lot of difficulty in properly running the shop. iv. Defendant No. 1 was not entitled to adjust Rs.43,350/- against the arrears of rent and this issue was decided in favour of the plaintiff.
7. The learned Court of Appeal concurred with the finding of facts of the Trial Court but allowed the appeal dismissing the suit for eviction, mainly on the ground that the plaintiff had not been examined. The Appellate Court also noted in para-38 of its judgment that the plaintiff's 3 'National Sports' shop was a very small triangular shop lying on the close left side of the tenanted 'Urvashi shop" which could be expanded and enlarged by taking back the tenanted 'Urvashi shop' and by its merger with the plaintiff's own shop.
8. The main ground on which the appeal has been allowed by the Lower Court is that Order III C.P.C. permits appointment of the power of attorney holder for entering into appearance to file application or act on behalf of the principle but such an authority did not confer the attorney holder to depose for any act or facts not conducted by him. In this regard reliance has been placed by the learned Court below on A.I.R. 1999 S.C. 1441 and A.I.R. 2005 S.C. 439.
9. This appeal has been admitted to be heard on the following substantial question of law;
"Whether on account of non-examination of the plaintiff landlord in a suit for eviction filed under the Provisions of BBC Act adverse inference could have been drawn by the Lower Appellate Court reversing the judgment of the trial Court on extraneous consideration?
10. It is argued on behalf of the plaintiff/appellant that despite concurring with the finding of fact recorded by the Trial Court that there was bonafide personal necessity of the appellant/plaintiff the eviction suit has been dismissed by the learned Appellate Court on the technical ground that the plaintiff had not been examined and the power of attorney holder (P.W.-10) was not competent to testify on behalf of his mother, the plaintiff of the case. It is further submitted that it is not in dispute that the plaintiff was an old and infirm lady who could walk only with much difficulty and there was other sufficient evidence on record which were accepted and finding of fact was recorded in favour of the plaintiff that there was a bonafide personal necessity for eviction. Reliance has been placed on the following authorities:
a. High Court of Chhattisgarh at Bilaspur in Second Appeal No. 343 of 1998 and Second Appeal No. 345 of 1998; Nawal Kishore Tapadia vs. Munnilal Tailor & Ors.
b. Rattan Dev vs. Pasam Devi, 2002 Supp (2) SCR 394, Appeal (Civil) 5838 of 2002, wherein it was held that withholding of the plaintiff himself from the witness box and thereby denying 4 the defendant an opportunity for cross-examination of himself results into an adverse inference being drawn against the plaintiff. That proposition of law is undoubtable. However, as we have already said, that is a fact to be kept in view and taken into consideration by the Appellate Court while appreciating other oral and documentary evidence available on record. May be that from other evidence - oral and documentary produced by the plaintiff, or otherwise brought on record, the plaintiff has been able to discharge the onus which lay on him, and, subject to the court forming that opinion, a mere abstention of plaintiff himself from the witness box may pale into insignificance.
c. A.I.R. 1981 S.C. 2235, Pandurang Jivaji Apte vs. Ramchandra Gangadhar Ashtekar, wherein it has been held that the question of drawing an adverse inference against a party for his failure to appear in court would arise only when there is no evidence on the record on the point in issue.
11. The learned counsel on behalf of the respondents has argued that the plea of personal necessity was not bonafide as the plaintiff had other shops and moreover after the death of the plaintiff the very plea of personal necessity loses its force and has become infructuous. It is further argued that the learned Court of First Appeal had rightly drawn an adverse inference and dismissed the suit for eviction for withholding the plaintiff who never stepped into the witness box so that her personal necessity could have been tested in cross-examination. Reliance has also been placed on the following authorities:
a. (2011) 4 Supreme Court Cases (Civ) 484 Khatri Hotels Private Ltd. and Anr. vs. Union of India & Anr. in which it has been held that non-examination of appellant No. 2 who was cited as the first witness appeared to be a part of calculated strategy to save him for explaining the contradictions for the pleadings.
b. Vidhyadhar v. Manikrao, (1999) 3 SCC 573 : 1999 SCC Online SC 294 at page 583.
"17. Where a party to the suit does not appear in the witness- box and states his own case on oath and does not offer himself to be 5 cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh [AIR 1927 PC 230 : 32 CWN 119] "Adivekka and Ors. vs. Hanamavva Kom Venkatesh 'D' By Lrs. & Anr. (2007) AIR (SCW) 3060 c. In Mohinder Kaur v. Sant Paul Singh, (2019) 9 SCC 358 Hon'ble Supreme Court followed the ration in Janki Vashdeo [Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217], wherein it was held that a power-of-
attorney holder, who has acted in pursuance of the said power, may depose on behalf of the principal in respect of such acts but cannot depose for the principal for the acts done by the principal and not by the power-of-attorney holder. Likewise, the power-of-attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross-examined. In our opinion, the failure of the respondent to appear in the witness box can well be considered to raise an adverse presumption against him as further observed therein as follows: (SCC p. 223, para 15) d. S Kesari Hanuman Goud Vs Anjum Jehan & Ors. 2013 (2) JLJR 359 SC- Power of attorney holder cannot depose in place of the principal. Word acts in the provisions confined only to acts done by the power granted to him by virtue of the instrument and would not include deposing in place of principal.
e. Janki Vashdeo Bhojwani and Anr. Vs Indusind Bank (2005) 2 SCC 217
12. What can be culled out from the authorities relied upon by both sides is that when the party to the suit is not examined an adverse inference can be taken under section 114 of the Evidence Act. The law is settled that under Order III Rule 1 & 2, if power of attorney holder renders some acts in pursuance to power-of-attorney, he may depose for principal in respect of such acts, but cannot depose for 6 principal in respect of matter, which principal can only have personal knowledge and in respect of which principal could be tested by cross-examination. The word 'acts' used in Rule 2 of Order III does not include the act of power of attorney holder to appear as a witness on behalf of the party. It is also a settled proposition of law that drawing of an adverse inference for nonproduction of evidence would depend upon the facts and circumstances of each case. If there is sufficient other evidence on record, mere non-examination of a party in the suit cannot throw out the case. In any case presumption of fact under section 114 of the Evidence Act is a rebuttable presumption and not a mandatory presumption of law. Presumption, is characteristically, a rule of law, fixed and relatively definite in its scope & effect, which attaches to certain evidential facts. The court is not bound to draw any presumption of fact and it is within its discretion to draw presumption or not.
13. Here in the present case, there is an inherent dichotomy in the appellate Court judgment in so far as it has concurred with the finding of fact of the Trial Court regarding personal necessity and then has dismissed the suit for eviction on the ground that plaintiff herself has not been examined. Once the finding of fact had been recorded on the basis of evidence on record, there was no room for drawing an adverse inference on account of non-examination of the plaintiff. Non- examination of plaintiff could have been a ground for differing with the finding of the Trial Court if there had been no other cogent evidence, but when on the basis of other evidence on record, concurrent finding of fact has been recorded regarding bonafide personal necessity, drawing of adverse inference is self-contradictory. Further, there is no law that non-examination of plaintiff is fatal in all circumstances and that bonafide personal necessity can be proved only if the landlady enter into the witness box. It will depend on the nature of suit, evidence on record and overall facts and circumstance of the case whether non- examination of plaintiff was deliberate to avoid being tested in cross- examination or it was for any other reason. Here in the instant case the cause for non-examination has been sufficiently explained as the plaintiff was an aged and infirm lady. The suit for eviction was based on the plea of personal necessity for widening of the existing shop 7 which has been sufficiently established by other evidence on record. The facts of the authorities relied upon by the respondent is very different from the present case. Here, it is the definite case of the plaintiff that the tenanted premises were required for expansion of her adjacent shop which has been proved by the evidence on record. Therefore, non-examination of the plaintiff cannot be regarded as fatal.
14. Another plea that has been taken on behalf of the defendant respondent is that the suit was filed by the plaintiff for personal necessity who died during the pendency of the appeal and, therefore, there does not exist any personal necessity and the decree of the trial court has otherwise also become in fructuous. Reliance has been placed on:
a. Kedar Nath Agrawal Vs Dhanraji Devi (2004) 8 SCC 76 wherein it has been held that right of the parties should be determined on the basis of institution of suit or proceeding but that does not mean subsequent events cannot be taken into consideration. Requirement pleaded by the landlord must not only adjust on the date of action but also subsist in the final decree or order for eviction is made.
b. Pasupuleti Venkateswarlu Vs The Motors and General Traders 1975 AIR 1409 for making the right or remedy, claimed by the party just in meaningful as also legally and factually in accord with current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rupees of fairness to both sides are scrupulously obeyed.
15. As per the ratio laid down, in appropriate cases subsequent events and developments can be considered for making the right or remedy just and meaningful. Here in the present case as discussed above, it was the consistent case of the plaintiff (since dead) that the tenanted premises was required for expansion of the adjacent, this requirement did not over by the death of the original plaintiff. To accept such a plea in eviction cases will add premium to procrastinators who will gain by simply delaying the litigation. Under the circumstance the plea that the death of the plaintiff had extinguished the personal necessity is not accepted and rejected.
16. Substantial question of law is therefore answered in favour of the 8 plaintiff/appellant.
The Judgment and decree passed by the appellate Court is set aside and the suit of the plaintiff for eviction is decreed. The appeal is allowed.
(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated the 23rd February, 2022 NAFR / AKT