Madras High Court
Shek Lathif vs Marie Aroquiaime Vanady on 30 March, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.03.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
C.R.P.PD.No.2255 of 2017
and
C.M.P.No.10639 of 2017
Shek Lathif ... Petitioner/Petitioner/3rd Party
Vs.
1.Marie Aroquiaime Vanady
...Respondent / Respondent / Decree Holder
2.Samshad Beg
3.Ajmal ...Respondents/Respondents/Judgment Debtors
Civil Revision Petition filed under Section 115 of CPC, to set
aside the order dated 15.06.2017 in E.A.No.1998 of 2016 in RCEP No.11
of 2013 in HRCOP No.70 of 2010 passed by the Principal District
Munsif (Rent Controller – I), Puducherry.
For Petitioner .. Mr.R.Thiagarajan
For R1 .. Mr.T.P.Manoharan, Senior Counsel
for Mr.K.P.Jotheeswaran
For R2 and R3 .. No appearance
https://www.mhc.tn.gov.in/judis
2
ORDER
A third party to the entire proceedings which commenced with
filing of HRCOP No.70 of 2010 to the Principal District Munsif / Rent
Controller-I, Puducherry by the 1st respondent herein / Landlady / Marie
Aroquiaime Vanady, seeking eviction of the shop premises at Door
No.14, Shop No.3, Vallalar Salai, 45 Feet Road, Rajarajeswari Nagar,
Rainbow Nagar Corner, Pondicherry – 605 001 is the Revision Petitioner
herein.
2.The said eviction petition was filed against the 2nd and the 3rd
respondents herein / Samshad Beg and Ajmal. The HRCOP went through
its normal process and finally, it was decreed and eviction was directed.
Thereafter, the 1st respondent / landlady filed RCEP No.11 of 2013 to put
in execution the decree was dated 19.04.2013. The Execution Petition
again meandered around and finally delivery was directed on 23.09.2016.
The bailiff visited the premises on 23.09.2016 to put into effect the order
of delivery of possession.
3.At that particular point of time, the revision petitioner herein /
third party to the entire proceedings was found to be in occupation of the
said shop. It was the contentions of the petitioner that he has been in
possession for nine months prior to that particular date and that he was in
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possession after the 2nd and 3rd respondent / tenants had vacated and with
the consent of the 1st respondent / landlady. These are aspects and issues
which are known exclusively only to the revision petitioner herein.
4.The revision petitioner then filed EA.No 1998 of 2016 taking
advantage of Rule 143 of the Civil Rules of Practice, seeking to record
his objection for grant of delivery of possession. The Civil Rules of
Practice are only guidelines to Code of Civil Procedure, 1908. The
sections in the Code of Civil Procedure, 1908 are the substantial
provisions. The Orders and Rules therein are framed as to how the
Sections are to be implemented and followed. The Rules of Practice are
again only guidelines given to put those procedures in practice.
5.The Execution Petition in RCEP No.11 of 2013 came up for
consideration before the learned Rent Controller, on 15.06.2017, wherein
after observing the facts of the case, it was specifically observed that the
Revision Petitioner herein was a stranger / third party and had also failed
to prove that he had been running the business for past nine months prior
to the filing of the petition. It was the contention of the revision
petitioner that he had obtained Registered Certificate on 13.09.2016.
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The learned Rent Controller had observed that the Revision Petitioner /
third party had filed E.A.No.1998 of 2016 to drag on the proceedings and
to delay the execution proceedings. It was also observed that this was an
abuse of process of law. It was stated that the revision petitioner was
protracting and delaying the landlady from enjoying the fruits of the
decree and that the revision petitioner had no independent right.
6.I hold that the revision petitioner was factually a stranger to the
Rent Control Proceedings and if at all, he had any document to establish
or facts to be stated it would have been only appropriate that he grazes
the witness box and subjects himself for cross-examination and having
not done so, I hold that no presumption can be drawn in favour of the
Revision Petitioner that he was in bonafide occupation of the shop.
7.Mr.T.P.Manoharan, learned Senior Counsel appearing on behalf
of the 1st respondent had taken this Court through the judgment of the
Hon'ble Supreme Court on that particular aspect namely, the failure of a
particular party to graze the witness box to speak about the facts which
are to their exclusive knowledge and failure to subject themselves to be
cross-examined. That was in the judgment reported in AIR 1999 SCC
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1441(1), Vidhyadhar v. Mankikrao and another. In paragraph 17 of the
said judgment, the Hon'ble Supreme Court had an occasion to speak
about the reluctance or failure of a party not to appear in the witness box
and to state the case on oath. The Hon'ble Supreme Court had observed
as follows:
“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 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] . This was followed by the Lahore
High Court in Kirpa Singh v. Ajaipal Singh [AIR 1930
Lah 1 : ILR 11 Lah 142] and the Bombay High Court
in Martand Pandharinath Chaudhari v. Radhabai
Krishnarao Deshmukh [AIR 1931 Bom 97 : 32 Bom
LR 924] . The Madhya Pradesh High Court in Gulla
Kharagjit Carpenter v. Narsingh Nandkishore
Rawat [AIR 1970 MP 225 : 1970 MPLJ 586] also
followed the Privy Council decision in Sardar
Gurbakhsh Singh case [AIR 1927 PC 230 : 32 CWN
119] . The Allahabad High Court in Arjun
Singh v. Virendra Nath [AIR 1971 All 29] held that if
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a party abstains from entering the witness-box, it
would give rise to an adverse inference against him.
Similarly, a Division Bench of the Punjab and
Haryana High Court in Bhagwan Dass v. Bhishan
Chand [AIR 1974 P&H 7] drew a presumption under
Section 114 of the Evidence Act, 1872 against a party
who did not enter the witness-box.”
8.That particular dictum laid down applies to the Revision
Petitioner herein who also failed to graze the witness box. The
statements made in the affidavit cannot be taken as being either factually
correct or being proved. They stand disproved. I find no merits in the
Revision Petition warranting interference with the order passed.
Therefore, the Civil Revision Petition stands dismissed. No order as to
costs. Consequently, connected Civil Miscellaneous Petition is closed.
30.03.2022
Internet:Yes/No
Index:Yes/No
smv
To
The Principal District Munsif, Puducherry.
https://www.mhc.tn.gov.in/judis
C.V.KARTHIKEYAN,J.
smv
C.R.P.PD.No.2255 of 2017
and
C.M.P.No.10639 of 2017
30.03.2022
https://www.mhc.tn.gov.in/judis
