- (1.) THE appellant (defendant) has challenged the judgment & decree dated 21. 8. 99 of the ADJ No. 2, Ajmer who allowed respondent's civil appeal No. 1/98 by setting aside trial Court's judgment dated 15. 1. 96 in civil suit No. 8/91, and accordingly granted decree of eviction against the tenant (appellant ).
(2.) FACTS giving rise to this second appeal briefly stated, are that the plaintiffs (respondents-landlords) instituted a civil suit seeking decree of arrears of rent due from 1. 1. 1990 @ Rs. 50/- per month and for eviction of the defendant (appellant) from the suit shop described in the plaint on the grounds inter alia of- (1) default in making payment of regular & monthly rent @ Rs. 50/- from 1. 1. 1990, (2) denial of title of landlords (plaintiffs) as to the suit shop; and (3) bonafide and reasonable need of the plaintiffs. In written statement, the defendants denied the averments of the plaint to the effect that the plaintiffs had purchased Khasra Nos. 2098 & 2099, Christian Ganj Road Ajmer alongwith constructions thereon from legal representatives of Gopinath & Pannalal. However the defendants stated that the plaintiffs be put to strict proof as to the facts stated in para 1 of the plaint which were to the effect that the defendant was tenant of the legal representatives of Pannalal for a shop duly constructed in Khasra No. 2098/2099 at a monthly rent of Rs. 50/- and that by virtue of purchase of aforesaid land of Khasras (supra) alongwith shop constructed thereon from 1. 1. 1990, the defendant became tenant of the plaintiffs by attornment. As per para 4 of the plaint, the notice of attornment was sent to the defendant but he defaulted by not paying monthly rent w. e. f 1. 1. 1990. In written statement as per para 12, the defendant denied himself to be tenant of the plaintiffs but it was stated that Narain Prakash Mathur was the owner of the suit shop. On the basis of the pleadings of the parties, as many as eight issues were framed. The plaintiffs examined Rama Goyal (PW1) whereas defendant examined himself as DW1. After trial, the trial Court by its judgment dated 18. 3. 94 dismissed the suit for eviction, against which plaintiffs preferred civil first appeal No. 104/94 wherein by substituting issue No. 1 and while setting aside dismissal of plaintiff's suit, the first appellate court by its judgment dated 6. 10. 95 remanded the suit back to the trial court under Order 41, Rule 23 CPC for deciding all the issues after taking evidence of the parties only on substituted issue No. 1. However, no evidence was led by both the parties and therefore, the trial Court after hearing arguments by its judgment dated 15. 1. 96 again dismissed suit No. 8/91 (144/90), against which the plaintiff preferred appeal No. 13/96 wherein the appellate court under its judgment dated 30. 7. 96 remanded the matter back to the trial Court for deciding issue Nos. 3, 4 & 5 afresh and newly framed issue No. 8a after affording opportunity to the parties for leading their evidence and thereby directed the trial Court to remit its conclusion on aforesaid four issues. The trial Court by its judgment dated 28. 4. 97 remitted its conclusions and according to findings arrived at by it, issue Nos. 3, 4, 5 & newly framed issue No. 8a were decided in favour of the plaintiffs and against the defendant. Therefore the defendant submitted his objections against the conclusions drawn by the trial Court in its judgment dated 28. 4. 97 on issue Nos. 3, 4, 5 & 8a before the first appellate court. Accordingly the first appellate court heard the plaintiffs appeal against findings on issue Nos. 1, 2, 6 & 7 arrived at by the trial Court in its earlier judgment dated 15. 1. 96 and further considered the defendants' objections as against conclusions drawn on reframed issue No. 8a & remanded issue Nos. 3, 4 & 5 under trial court's judgment dated 28. 4. 97 and after considering rival contentions, the first appellate court by impugned judgment dated 21. 8. 99 while deciding all issues 1 to 8a except No. 7 in favour of the plaintiffs, decreed their suit for eviction & arrears of rent against the defendant and set aside dismissal of the suit under judgment dated 15. 1. 96 impugned in plaintiff's appeal No. 1/98. Hence this second appeal has been preferred by the defendant assailing not only judgment dated 21. 8. 99 of the first appellate court but also concurrent findings arrived at by the trial Court in its judgment dated 28. 4. 97 on issue Nos. 3, 4, 5 & 8a affirmed by judgment impugned in this second appeal. Albeit the learned counsel for the appellant proposed in memo of second appeal as many as fifteen questions describing them as substantial but contrarily, learned counsel for the respondents contended that the questions proposed by the appellants are neither involved nor they are substantial in the light of Section 100 CPC inasmuch as in view of the concurrent findings of fact of both the courts below on certain issues, this appeal deserves to be dismissed.
(3.) AFTER having heard the learned counsel for the parties and considered their rival contentions, I may hasten to point out that questions proposed in memo of this appeal describing them as substantial are not formulated properly and they are mere repetition to each other. It is not in dispute that the fate of this litigation hinges on issue No. 1 framed & decided by the trial Court as to relationship of tenancy between the plaintiffs & defendant (appellant) so also as to the denial of title and ownership of the plaintiffs in respect of the suit shop/rented premises. Hence I albeit reframe following questions for consideration while hearing and deciding this appeal but at this juncture I restrain from saying as to whether they are substantial questions of law or are involved for admitting this second appeal for hearing within the purview of Sec. 100, CPC- 1. Whether advocate/pleader in the suit itself can appear as a witness without retiring from a case and whose such evidence can be read as admissible in the facts and circumstances for the present case, especially as a power of attorney holder and as an attesting witness to material documentary evidence, i. e. sale deed? 2. Whether in a eviction suit contested on denial of not only title by the defendant but also denial of relationship as landlord and tenant in between plaintiffs and defendant, a decree of eviction can be passed especially in the absence of plaintiffs or their predecessors in-title, having failed to appear as witness to support their case? 3. Whether in an eviction suit by a co-owner, ground of default can be proved by other witness then landlord or his predecessors in title who failed to appear as witness to prove default? 4. Whether principle of Order 8 Rule 4 CPC is applicable in the facts and circumstances of the case? Shri Rajesh Kapoor learned counsel for the respondent (appellant) contended that in para 12 of written statement to the amended plaint, the defendant had stated that Narain Prakash Mathur was the real landlord, to which the plaintiffs could have objected for deletion of that name, inasmuch as in his statement recorded on 16. 3. 94, Rais Ahmed (DW1) (defendant) deposed that he has been paying Rs. 50/- per month to the said Narain Prakash Mathur, to which also no cross examination was made by the plaintiffs, where defence of the defendant was struck off, and however, such statement had remained unrebutted thereby the defendant discharged his burden proving Narain Prakash Mathur as his landlord. Thus, according to Shri Kapoor the learned first appellate court while reversing dismissal of the suit, has committed an error of law in holding that the defendant has neither clearly stated in written statement as to who was his landlord nor any evidence was led in that regard. Contrarily, Ms Rama Goyal for the plaintiffs (respondents) urged and drew attention of this Court to the averments made in paras 1, 2 & 3 of the plaint and corresponding paras of written statement including para 17, in order to show that the defendant did not specifically deny the ownership so also relationship of landlord and tenant of the suit shop. ;