Zafar Nasim & Others vs Sanjay Kumar Mitra
2021 Latest Caselaw 783 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 (Civil Appellate Jurisdiction)
                        S.A. No. 213 of 2009
                              ........

Zafar Nasim & Others                        .... ..... Appellants
                            Versus
Sanjay Kumar Mitra                          .... ..... Respondent

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
            (Through : Video Conferencing)
                                 ............
For the Appellants        : Mr. Rohit Roy, Advocate.
For the Respondent        : Mr. Indrajit Sinha, Advocate.
                                 ........
10/18.02.2021.

Heard, learned counsel for the appellants, Mr. Rohit Roy and learned counsel for the respondent, Mr. Indrajit Sinha.

Learned counsel for the appellants has submitted that the second appeal has been preferred by the plaintiff against the judgment dated 29.05.2009 and decree dated 12.06.2009 passed by learned Additional District Judge, F.T.C.-1st, Dhanbad, in Title Appeal No. 05/2008, whereby the judgment dated 17.12.2007 and decree dated 05.01.2008 passed by learned Munsif-1st, Dhanbad, in Title Eviction Suit No. 05/2004 has been reversed on the ground that in the case of Building Act, plaintiff has not been examined to prove its case, though defendant has been debarred from filing written statement, but the defendant has right to cross-examine.

Learned counsel for the appellants has submitted that learned lower appellate court has mis-read the evidence, no document has been filed by P.W.-2 to show that he was appointed by the plaintiff to look after the tenanted premises and collect rent from the tenant. No agreement has been brought on record regarding tenanted premises between the plaintiff and the defendant. The agreement Ext. 2/A has been filed, this agreement clearly shows that there is agreement between the husband of the plaintiff and the defendant.

Learned counsel for the appellants has further submitted that learned lower appellate court has completely erred in recording the finding in case of Building Act. It is the settled principle of law that the plaintiff has to prove his case even though defendant has been debarred from fling the written statement and the defendant has right to cross-examine. The definition of "landlord" has been referred in Clause-2(f) of Bihar Building (Lease, Rent and Eviction) Control Act, 1982 and as such, learned lower

appellate court has to only consider, in absence of any pleading from the defendant, when the relationship of the landlord and the tenant is admitted between the plaintiff and defendant. Whether the plaintiff has proved that there is default in payment of rent on the part of the defendant or not? The learned lower appellate court has completely erred and by recording wrong finding, the lower appellate court has reversed the finding passed by the learned court below without any basis on wrong presumption of law.

Learned counsel for the appellants has further submitted that on the previous occasion, the L.C.R. has been called for, which has been received, but the appeal has not been admitted till date.

The appeal is admitted on the following substantial questions on law:-

(i) Whether the lower appellate court has erred in holding that non- examination of the plaintiff in a suit of eviction on the ground of default is not fatal in adjudication of the suit, in view of the definition of landlord as envisaged under Section 2(f) of Bihar Building (Lease, Rent and Eviction) Control Act ?

(ii) Whether the learned lower appellate court has committed an error while adjudicating the issue by mis-reading the evidence brought on record by plaintiff in absence of any evidence brought on record by the defendant as defendant have been debarred from filing written statement, but has right to cross-examine the plaintiff, as such the learned lower appellate court has to consider evidence brought on record in view of the judgment passed by the Apex Court passed in the case of Rattan Dev Vs. Pasam Devi, reported in (2002) 7 SCC 441 (Para-5)?

Para-5 of the aforesaid judgment is re-produced hereunder:-

5. Learned counsel for the respondent has placed reliance on Ishwar Bhai. C. Patel alias Bachu Bhai Patel v. Harihar Behera & Anr., [1999] 3 SCC, 457 wherein this Court has emphasised that withholding of the plaintiff himself from the witness box and thereby denying 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 in to 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 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.

However, liberty is given to the parties to raise other substantial question of law at the time of final hearing of the appeal.

Since, the respondent has already appeared through learned counsel, Mr. Indrajit Sinha, therefore, notice is waived.

Learned counsel for the parties have jointly submitted that it is matter of Building Act and the litigation between the parties is going on since 2004, as such, hearing may be expedited.

Considering the same, office is directed to place this case under the heading "For Hearing" in the monthly list of March, 2021.

(Kailash Prasad Deo, J.) Sunil/-