Azima Khatooon Wife Of Moizuddin ... vs Md. Usman Son Of Allauddin
2022 Latest Caselaw 2844 Jhar

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     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          S.A. No. 193 of 2008

 Azima Khatooon wife of Moizuddin Ahmad , Resident of 77, Kuli Road,
 Zakir Alagar, Police Station Azad Nagar, (Mango),Town Jamshedpur,
 District- East Singhbhum.
                                          ..... .....         Appellant
                        Versus
 Md. Usman Son of Allauddin, Resident of Chepa Pool, Road No.18,
 Jawahar Nagar, Near Lions Club, Police Station Mango, Town Jamshedpur,
 District Singhbhum East.
                                          .... ....           Respondent
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellant          : Mr.Rahul Kumar Gupta, Advocate
For the Respondent         : Mr. Amit Kumar Das, Advocate
                             Mrs. Swati Shalini, Advocate

CAV ON 05.05.2022                             PRONOUNCED ON 25.07.2022

1. Appellant is the plaintiff who has preferred the appeal against the judgment of reversal.

2. The plaintiff filed the suit for eviction of the defendants from the suit premises and for a decree for recovery of arrears of rent on the ground of default and personal necessity.

3. As per the case of the plaintiff the suit property was purchased by the plaintiff by a registered sale deed No.3424 dated 27.4.82. After the purchase of the property the name of the plaintiff was mutated on 20.7.99 and the rent was fixed at the rate of Rs. 33 and the plaintiff has been paying rent to the state of Bihar. The suit property had been rented out in favour of defendant on a monthly rent of Rs. 60 per month. The defendant did not pay rent from the month of December, 2002 and hence the suit.

4. The defendant appeared in the suit but did not file written statement, consequently he was debarred from filing the WS by order dated 27.4.04 and no issue has been framed.

5. Seven witnesses were examined and the rent receipt in the name of the plaintiff was marked as exhibit. Although the defendant was debarred from filing WS but was permitted to cross examine the witnesses. The learned trial court decreed the suit on ground of default and personal necessity.

6. The court of first appeal reversed the judgement and dismissed the suit on the ground that plaintiff had failed to establish landlord tenant relationship. The learned Court while appreciating the oral testimony of the witnesses noted that PW1 had stated that the defendant was inducted in the suit premises two - three years prior to filing of the suit but has not stated clearly in the plaint that when the defendant had been inducted as tenant. There was no documentary proof of the tenancy nor any evidence to show that the defendant had ever paid rent to the plaintiff. No witness stated that they had seen the defendant paying rent.

7. This appeal has been admitted to be heard on the following substantial questions of law

(i) Whether the finding of the lower appellate court is correct specially when un-controverted assertions were made by the landlord - appellant and the defence of the tenant was struck off?

(ii) Whether in absence of any evidence to controvert the oral evidence and examination in chief of the plaintiff an order against the landlord could have been passed and the impugned order suffers from material illegality?

8. When a civil suit is filed and summons are issued the defendant is expected to file his written statement (WS) of defence (Order 8 CPC) . In a WS the defendant admits or denies the averment in the plaint or places his own version of fact.

Order 8 Rule 5 is 1[(1)] Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

2[(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.

(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.

(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.] Where the defendant appears and does not file his written statement or despite being given the opportunity his right to file the WS is closed the suit proceeds in an uncontested state. No issue arises.

9. Yet even in this situation in order to maintain sanctity of the Court judgment the plaintiff is expected to give some proof in support of his claim. In absence of any contest degree of proof in support of the averments made in the pleading is lighter than in a contested suit.

10. In the present case the plaintiff adduced evidence which the trial Court found sufficient. The first appellate Court without realizing the basic principle of law that in the absence of a contest, very little proof will suffice, proceeded to address the matter as if a written statement had been filed and , issues raised and framed and the Court was deciding whether the plaintiff's evidence was sufficient. When the landlord-tenant relationship remained unchallenged and the plaintiff led sufficient evidence on the point, there was no occasion for the trial Court to disbelieve all the oral evidence and hold that the plaintiff had failed to establish landlord-tenant relationship only for the reason that documentary evidence was not led. The first appellate Court having taken a perverse approach contrary to law and procedure accepted the appeal and dismissed the suit.

11. That Judgment passed by the first appellate Court is contrary to law and also to facts and is set aside. The Second appeal is accepted and the substantial questions of law are answered in favour of the appellant. The Judgment (18.1.2008) of the Trial Court is restored. The plaintiff appellant will be entitled to eviction order and also entitled to the mesne profit from the date of Judgment till the date of recovery of possession at market rate.

12. Only for the limited purpose of enquiring into the mesne profit the suit shall continue and is remanded to the Trial Court to carry out the enquiry according to law and pass order of recovery of mesne profit with interest @ 10% per annum commencing from the 1st of each calendar month till recovery. Mesne profit shall be computed as per the principles laid down in Martina & Harris Pvt Ltd & anr Vs Rajendra Mehta 2022 SCC On Line 792.

13. Thus, after passing the decree of eviction the tenancy terminates and from the said date the landlord is entitled for mesne profits or compensation depriving him from the use of the premises.

The plaintiff appellant shall bear her own cost throughout. The appeal is allowed.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 25th July, 2022 AFR / AKT