Mishri Bai Vs. Krishna Lal Chaddha - Court Judgment

Excerpt:
rajasthan premises (control of rent & eviction) - act, 1950--section 13(1)(j)--eviction statements showing that defendant did not use disputed shop continuously for 6 months--held, plaintiff is entitled to decree for eviction.;from the statements of d.w. 2 laxmi kant tewari and d.w. 3 hari kishan sharma it appear that d.w. 3 hari kishan sharma started business in the disputed shop after the filing of the suit. there is no evidence that the defendant respondent was doing his business in the disputed shop continuously proceeding the filing of the suit. under such circumstances the plaintiff-appellant is entitled to a decree of eviction under section 13(1)(j) of the act.;appeal allowed - - i am aware of this fact that a finding of fact recorded by the lower appellate court is ordinarily binding on the high court but where the high court comes to the conclusion that the lower appellate court failed to take into consideration the important piece of evidence effecting the decision of the case or records a finding contrary to the evidence on record, it has to reverse the same to do justice to the party against whom such finding has been recorded. air1967cal205 ,the calcutta high court held that where inspite of statement-in-chief, the opposite party failed to cross-examine, the courts should presume that the statement of the witnesses in examination-in-chief has been accepted by the opposite party.r.s. kejriwal, j.1. the suit for eviction from the disputed shop filed by the plaintiff appellant was decreed by the additional civil judge (junior division) and judicial magistrate no. 5, jaipur city, jaipur, vide his judgment and decree dated 19.7.1995.the said court recorded the following findings:(1) that the defendant-respondent committed default in the payment of rent;(2) that the disputed shop was not used by the defendant respondent without any reasonable cause for the purpose for which it was let-out to him for a continuous period of more than six months immediately proceeding the date of suit;(3) that the defendant-respondent obtained suitable premises for his business in transport nagar, jaipur; and(4) that the defendant-respondent sublet/parted with possession of the disputed shop to shri hari kishan sharma.2. being aggrieved with the said judgment and decree, the defendant-respondent filed an appeal, which was allowed by learned additional district judge no. 1, jaipur city, jaipur, by his judgment and decree dated 9.10.1996. the learned judge held as under:(a) that sub-clause (i) of sub-section (1) of section 13 of the rajasthan premises (control of rent & eviction) act, (for short the 'act') is applicable only to residential premises and is not applicable to commercial premises;(b) that the premises was not sub-let/parted with possession to shri hari kishan sharma but shri hari kishan sharma was agent/servant of the defendant-respondent;(c) that the finding of the trial court that hari kishan sharma has been doing business of his own and has not been doing the business of defendant-respondent is perverse; and(b) that the finding of the trial court that the disputed shop was not used without reasonable cause by the defendant for a period of more than six months is also perverse.3. the lower appellate court did not decide the question of default, as the defendant had already deposited the amount determined by the trial court under section 13(3) of the act. being aggrieved with the said judgment and decree, the plaintiff-appellant has filed this civil second appeal.4. mr. goyal, counsel for the appellant submits that the findings recorded by the trial court are based on record. the trial court after considering the evidence found that the premises have been parted-with possession to shri hari kishan sharma. p.w. 1 smt. misri bai and p.w. 2 shri sita ram stated on oath that the premises were parted-with possession to shri hari kishan sharma, after filing of the suit. the defendant in para no. 5 (ka) of his written statement did not mention that shri hari kishan sharma was his agent or servant. he only mentioned that he has taken the agency of m/s. globe transport company. mr. goyal submits that the statements of the defendants-witnesses are contradictory in this regard. the trial court after taking-into consideration the statements of p.w. 1 smt. misri bai and p.w. 2 shri sita ram, came to the conclusion that the disputed shop was not used by the defendant-respondent for more than six months immediately proceeding the date of the suit for the purpose for which it was let-out to him. the defendant respondent neither cross-examined the plaintiffs witnesses, nor said a single word in his statement that he continuously used the disputed shop for his business immediately preceeding the filing of the suit. he submits that under these circumstances the statements of the plaintiffs witnesses should be accepted. the lower appellate court did not give any reason for setting-aside the finding of the trial court. under such circumstances the judgment passed by the lower appellate court is perverse and deserves to be set-aside.5. on the other hand, shri chadda, counsel for the defendant-respondent submits that the findings recorded by the lower appellate court are pure findings of fact based on the material on record and as such this court should not interfere the findings recorded by the lower appellate court he submits that sub-clause(i) of sub-section (1) of section 13 of the act is not applicable in the present case. if a tenant obtains a suitable accommodation for his business a decree of eviction can not be passed against him on that ground.6. i heard counsel for the parties and gone through the record.7. p.w. 1. smt. misri bai in her statement stated as below:izfroknh us igys rks oknxzlr nqdku djhc nks lky cun j[kh a fqj mlds ckn gfjfd'ku dks lcysv dj nh a og hkh vkuliksvz dk dke djrk gs gfjfd'ku dks nqdku dk nkok djus ds ckn es nh x;h a8. p.w. 2. sita ram in his statement stated as below:izfroknh us nkok djus ds ms< nks lky igys viuk nrj vkuliksvz uxj es yxk fy;k vksj oknxzlr nqdku dks ms< nks lky rd cun j[kh a nkok fd;k x;k ml jkst nqdku cun fkh a mlds ckn xyksc vkuliksvz ds uke ls gfjfd'ku bl nqdku ij nkok djus ds 1&2 lky ckn ls csbrk gs a gfjfd'ku xyksc vkuliksvz dh ;gka dh czkup dk izksijkbzvj gs a9. the aforesaid witnesses have not been cross-examined on this point. the defendant in his statement did not say a single word that the disputed shop did not remain closed for a period of six months continuously immediately before the filing of the suit. the learned additional district judge no.l, jaipur city, jaipur, at page no. 8 of his judgment, without discussing the evidence of the witnesses, recorded the following finding:v/khulfk u;k;ky; dk ;g fu'd'kz lgh ugh gs fd 6 eghus ls t;knk le; fy, oknxzlr nqdku dks vihykav us dke es ugh fy;k gks a 10. in my opinion the aforesaid finding of the learned additional district judge is perverse and is not based on record. the learned judge did not consider the statements of the plaintiff's witnesses and the reasons given by the trial court while deciding issue no. 6 in favour of the plaintiff-appellant. i am aware of this fact that a finding of fact recorded by the lower appellate court is ordinarily binding on the high court but where the high court comes to the conclusion that the lower appellate court failed to take into consideration the important piece of evidence effecting the decision of the case or records a finding contrary to the evidence on record, it has to reverse the same to do justice to the party against whom such finding has been recorded. from the statements of p.w. 1 smt. misri bai and p.w. 2 shri sita ram it has been proved that the defendant-respondent did not use the disputed shop continuously for a period of more than six months immediately preceeding the filing of the suit. the witnesses were not cross-examined by the defendant-respondent. in babulal chaukhani v. caltex (india) ltd. : air1967cal205 , the calcutta high court held that where inspite of statement-in-chief, the opposite party failed to cross-examine, the courts should presume that the statement of the witnesses in examination-in-chief has been accepted by the opposite party.11. similar view was taken in traders syndicate v. union of india : air1983cal337 , a.e.g. caraouet v. a.y. derderian : air1961cal359 , chunnilal dwarka nath v. hartford fire insurance co. ltd air 1985 punj. 440. further more, from the statements of d.w. 2 laxmi kant tewari and d.w. 3 hari kishan sharma it appear that d.w. 3 hari kishan sharma started business in the disputed shop after the filing of the suit. there is no evidence that the defendant respondent was doing his business in the disputed shop continuously preceeding the filing of the suit. under such circumstances the plaintiff-appellant is entitled to a decree of eviction under section 13(1)(j) of the act. as i am passing decree of eviction on the ground that the defendant-respondent did not use the disputed shop continuously for a period of six months without any reasonable cause immediately preceeding the filing of the suit, it is not necessary to decide the other questions raised by counsel for the appellant.12. consequently, i allow the appeal, set-aside the judgment and decree passed by learned addl. distt. judge no. 1, jaipur city, jaipur, and confirm the decree of the trial court. parties to bear their own costs.