- (1.) Heard learned counsel for the parties. Brief facts of the case are that the plaintiff/landlord filed suit for eviction of her tenant/appellant/defendant on various grounds but thereafter abandoned her other grounds and proceeded with the suit only on the ground of default committed by the tenant in payment of the rent. So far as determination of rent is concerned, there is no dispute. Rent was determined by the trial court and the tenant committed default in payment of rent during the pendency of the suit, therefore, the defence of the defendant was struck off. The plaintiff did not gave her statement in the trial court but produced the affidavits of PW1 Mathura Das and PW2 Inder Kumar. Both these witnesses were not cross examined by the defendant even when opportunity was given. The appellant/defendant also did not submit his affidavit to rebut the evidence of the plaintiff.
(2.) The trial court decreed the suit of the plaintiff vide judgment and decree dated 28.7.2004 against which the defendant/appellant preferred appeal wherein he submitted that no sufficient opportunity was given to the appellant to cross examine the plaintiff's witnesses and he was not given opportunity to produce evidence. The first appellate court observed that opportunity was given to the defendant to cross examine the plaintiff's witnesses but it was submitted on behalf of the appellant himself that the appellant does not want to cross examine the witnesses and also do not want to produce submit any evidence. This order-sheet has been signed by learned counsel for the appellant before the trial court. In view of the above, there was no rebuttal evidence of the plaintiff on the question of default committed by the appellant.
(3.) Accordingly, the first appellate court dismissed the appeal of the appellant vide judgment and decree dated 15.12.2005. Learned counsel for the appellant vehemently submitted that the plaintiff herself did not appear in the witness box to prove the initial default alleged to have been committed by the appellant before filing of the suit. It is also submitted that this Court in the judgment delivered in the case of Sikhar Chand (now dead) through LRs. vs. Santi Kumar and another reported in 2002(1) WLC (Raj.) 537, has dismissed the suit of the plaintiff because of nonappearance of the plaintiff in the case of allegation of default. It is also submitted by learned counsel for the appellant power of attorney of the plaintiff cannot be a competent witness, which is also held by this Court in the aforesaid judgment.;