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Judgment
This is an appeal by the defendants against the concurrent finding of facts recorded by the first appellate court in judgment and decree dated 27.09.2024 in RCA No.17/2022 thereby affirming the judgment and decree dated 03.12.2021 passed in RCS A No.400009A/2011.
The facts of the case are that the respondents/plaintiffs instituted a suit for eviction on 01.12.2011 in terms of Section 12(1)(a) and (o) of M.P. Accommodation Control Act, 1961 along with the relief of recovery of arrears of rent and cost with respect to a part of the suit property.
It was averred in the plaint that the plaintiffs are owners of Bungalow No.71-A, Chanaa Godaam, Mhow. In a portion of two rooms and a verandah, the original defendant Mohammad Israil was the tenant at a rent of Rs.600/- per month. It was an oral tenancy and as the defendant was irregular in payment of rent and as from 01.06.2007 till presentation of the plaint rent was not paid, a notice dated 27.06.2011 was given through registered post thereby demanding rent, however, even after service of notice dated 02.08.2011 the rent was not paid, as such, the tenancy was terminated. Apart from this, the defendant has illegally constructed a water closet (WC) and washroom for which permission from plaintiff or even from Cantonment Board, Mhow was not taken. The plaintiff vide aforesaid notice dated 27.06.2011 also demanded for removal of illegal construction within one month, however, same was not done. Thus, the suit was filed for eviction, recovery of arrears of rent and damages.
On 14.05.2012, the original defendant- Mohammad Israil filed his written statement before the learned trial court in which he expressly admitted tenancy, however, denied default in payment of rent and other allegations. Based on respective pleadings, seven issues were framed by the trial court. On 16.12.2019, statement of original defendant- Mohammad Israil was recorded, however, on 14.09.2020 he passed away before final arguments in the civil suit, thus, on 15.01.2021 an application under Order 22 Rule 4 of CPC was filed by the plaintiff for bringing legal representatives of Late Mohammad Israil on record which was allowed, thus, the present defendants/appellant were brought on record.
5 . After their impleadment, the legal representatives of Mohammad Israi filed their own written statements thereby denying tenancy and even the ownership of the plaintiff was also denied. Based on the written statements of the LRs, the trial court on 28.10.2021 framed two additional issues i.e. issue Nos.8 and 9 regarding issue of ownership of the plaintiff.
On 12.11.2021, the plaintiff filed an application under Order 14 Rule 5 of CPC thereby request was made that additional issues framed on the basis of written statement filed by the LRs of original defendant should be deleted in view of the fact that the landlord-tenant relationship was expressly admitted by original defendant Mohammad Israil. The trial court while relying on the judgment of the Hon'ble Apex Court in the case of Vidyawati Vs. Man Mohan and others, 1995 (5) SCC, 431 deleted the issues framed on 28.10.2021. On 18.11.2021, the appellants made an application under Order 18 Rule 17 of CPC thereby praying for cross examination of plaintiff witnesses and the same was rejected by the trial court on 23.11.2021 ultimately the suit was decreed by the trial court on 03.12.2021 whereby holding that the defendants are tenants of the suit property and the plaintiff was entitled for receiving arrears of rent and the construction of toilet on open land was held to be without permission. Thus, the eviction was directed by handing over vacant possession of the suit property within two months along with removal of illegal structure.
The appellants being aggrieved by the judgment and decree of the trial court filed RCA No.17A/22. The first appellate court conquered with the findings recorded by the trial court on all aspects thus vide judgment and decree dated 27.09.2024 the appeal was dismissed, thus, the present second appeal against the above concurrent finding of facts recorded by the two courts.
Before adverting further to the facts of the present case, it would be apposite to note that the learned counsel for the appellant has fairly pointed out that the appellants have been dispossessed in execution proceedings initiated by the respondents/plaintiffs in the month of December, 2024.
Learned counsel for the appellant while placing heavy reliance on the written statement filed by the LRs has stated that the two issues framed by the trial court on 28.10.2021 based on the written statement filed by LRs have incorrectly been deleted. He submits that in fact, reliance as placed by the trial court on the judgment of Hon'ble Apex Court in the case of Vidyawati (supra) was misplaced. He submits that apart from this, the appellants had filed an application under Order 18 Rule 17 for an opportunity to cross examine the plaintiffs' witness, however, the same was rejected on 23.11.2021. He submits that this rejection amounts to denial of opportunity of hearing. He submits that if the legal representatives are not given opportunity for cross-examination of plaintiffs' witness then there is no purpose for bringing LRs of deceased on record when no opportunity of hearing was to be granted. He further submits that by way of written statement the legal representatives have denied the landlord tenant relationship as no evidence was permitted to be produced in support of this contention despite being well aware of the fact that the LRs were subsequently brought on record and have a legal right to lead evidence in support of their case, thus, the courts below have committed an error of law, thus, the present second appeal involves substantial questions of law, hence, deserves to be admitted.
On the other hand, learned counsel for the respondent stated that the appellants have already been dispossessed.
Heard the learned counsel for the parties and perused the record.
The emphasis as led by the learned counsel for the appellant is on two aspects. First; that, the legal representatives have right to file their own written statement and by denying tenant and landlord relationship they did not assert their independent right, thus, the trial court erred in relying on the judgment in the case o f Vidyawati (supra) in which the proposition of law was that in case legal representative asserts his independent right then he has to get impleaded in terms of Order 1 Rule 10 of CPC independently and he may also bring his own suit. However, in the present case as the legal representatives do not assert their independent right and denied landlord tenant relationship which flows from original defendant Mohmmad Israil himself, thus, the said case was not applicable and for the same reason, he submits that denial of cross examination of plaintiffs' witness is also bad in law. However, this argument falls flat in view of two written statements i.e. the first filed by the original defendant and the other by legal representatives. Now the situation is such that both the written statements are contrary to each other inasmuch as in the written statement of original defendant he admits landlord tenant relationship whereas in written statement filed by the LRs, they deny the same. In the considered view of this Court, the admission made in the written statement by the original defendant cannot be withdrawn by legal representatives by filing their owner written statement. As such they were not permitted to plea contrary to the admitted position of facts and for this reason, this Court is of the considered view that the trial court did not commit any error in deleting two issues framed on 28.10.2021.
As regards the opportunity of cross-examination, the application filed under Order 18 Rule 17 of CPC would show that the legal representatives/present appellants requested for opportunity of cross-examination in view of their written statement, however, their written statement could not have claimed basis for cross examination in view of the fact that it was contrary to the admissions made in the written statements of the original defendant. As such there was no occasion for the trial court to recall witnesses as the written statement of LRs was of no consequence in view of availability of written statements of the original defendant. The right of LRs to file written statement is not absolute. Order 22 Rule 4 Sub-Rule II provides that any person made party on the death of one or several defendants or sole defendant may make any defence appropriate to his character as legal representative of the deceased defendant. As such the legal representative has to continue in the character of the original defendant. He cannot just come and raise a plea contrary to the plea taken by the original defendant without withdrawing the same. As such, the first appellate court has correctly rejected the application for recalling witnesses for cross examination because the basis of such application was subsequent written statement filed by legal representatives.
In view of the above analysis and proposition of law, this Court is of the considered view that no substantial question of law is involved in the present appeal. Hence, the present appeal is hereby dismissed.
No order as to costs.