TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) BRIEF facts of the case are that the plaintiff/respondent filed a suit for eviction against the defendant/appellant alleging that the defendant is a tenant in the suit property on a rent of Rs. 150/- per month. The defendant paid rent to the plaintiff upto the period of January, 1982 but thereafter, she did not pay any rent to the plaintiff, therefore, the plaintiff sought a decree for eviction of tenant on the ground of default committed by the defendant in payment of rent. The plaintiff also pleaded that the suit property has been sublet to one NA Ansari by the plaintiff on monthly rent of Rs. 300/ -. Yet another ground for eviction is that the suit property is required for the personal need of the plaintiff as the plaintiff is residing in a rented house and the plaintiff has a large family of 14 members. The defendant submitted written statement alleging that she is owner of the house and she is residing in the house since last 22 years or even before. She took a specific plea that the house in question was not taken on rent by the defendant nor she paid rent to the plaintiff at any time and, therefore, there is no relationship of landlord and tenant between the plaintiff and defendant. In the sequence, she also denied that she defaulted in payment of rent. The trial Court framed the issues and before that determined the interim rent and directed the defendant tenant by order dated 25. 1. 1996 to pay the determined arrears of rent and to pay rent further month by month. The defendant submitted an application on 3. 2. 1996 and sought extension of time for depositing the rent. On this application, time for depositing the rent was extended by the trial Court's order dated 3. 2. 1996 itself. However, the defendant did not deposit the rent. An application was submitted by the plaintiff for striking out of defence of the defendant, upon which the trial Court vide order dated 26. 11. 1996 struck off the defence of the defendant. In the trial Court, the plaintiff examined himself and produced two witnesses. The case was fixed for the evidence of the defendant on 23. 5. 1998 and time was sought by the defendant on 23. 5. 1998 and 28. 7. 1998 and again on 26. 8. 1998 upon which the trial Court granted last opportunity to produce the evidence. On 10. 11. 1998, nobody appeared to give evidence and, therefore, the trial Court closed the evidence of the defendant by order dated 10. 11. 1998. This order was not challenged by the defendant and the defendant submitted an application on 3. 12. 1998, the date on which the case was fixed for final arguments. By the said application, the defendant sought indulgence of the Court for reopening of the evidence of the defendant but the trial Court by order dated 3. 12. 1998 rejected the appellant's application and thereafter, arguments were heard and the suit was decreed against the defendant by the trial Court by the impugned judgment and decree dated 3. 2. 1999. The appellant tenant aggrieved against the judgment and decree dated 3. 2. 1999 preferred appeal. The appellate court dismissed the appeal of the appellant vide judgment and decree dated 7. 8. 2002. Hence, this second appeal. According to learned counsel for the appellant, the appellant submitted application before the trial Court and stated that she could not appear on the day when the case was fixed for the evidence of the defendant because of death of sister-in-law of her son Suresh and she went to Jaitaran on 8. 5. 1998 and stayed there 10. 11. 1998. Therefore, she could not appear before the trial Court to give her statement on the day when the case was fixed for evidence of the defendant. The plaintiff also submitted that now she is ready to give her statement and, therefore, her statement may be recorded.
(3.) ACCORDING to learned counsel for the appellant, since the appellant herself appeared before the trial Court, therefore, the trial Court should have allowed the appellant to give her statement. In the application, she stated that she want to say only that she is not tenant in the suit premises and the name of her husband has wrongly been given by the plaintiff. According to learned counsel for the appellant, the trial Court committed serious illegality in rejecting the appellant's application and according to learned counsel for the appellant, the application was rejected by the trial Court only on the ground that the appellant took five opportunities for evidence but did not consider the reason given by the appellant for her non-appearance on the day her evidence was closed. Learned counsel for the appellant submitted that in identical circumstances, the Hon'ble Supreme Court in the case of State Bank of India vs. Chandra Govindji (km.) reported in 2000 (8) SCC 532 held that as long as reasonable ground exists on the date the adjournment is next sought, the Court should not, influenced by the other earlier adjournments, pass adverse order. According to learned counsel for the appellant in view of the fact that in the trial Court, merely influenced by the pass conduct of the defendant, the trial Court did not give opportunity to the defendant to give statement in rebuttal. Learned counsel for the appellant submits that now in second appeal, the appellant has submitted an affidavit along with application under Order 41 Rule 27 CPC and, therefore, the affidavit may be taken on record as evidence under the provisions of Order 41 Rule 27 CPC. According to the learned counsel for the appellant, after this, the matter will remain only for cross examination of the defendant and thereafter, the matter can be decided afresh. ;