On the Way Bakers Oven and Another vs Susheela Devi and Others

L. Narasimha Reddy, J.—The defendants 1 and 2 in OS. No. 1306 of 1997, on the file of the First Senior Civil Judge, City Civil Court, Hyderabad, filed this appeal, against the plaintiff and defendant No. 4 in that suit. Defendant No. 3 died. For the sake of convenience, the parties are referred to, as arrayed in the suit.

The plaintiff filed the suit for eviction of the defendants. She pleaded that defendants 2 to 4 represented to her stating that they constituted the first defendant firm, and that the suit schedule premises was leased to them, for the purpose of doing business in bakery. The lease is said to have commenced, with effect from 1-1-1994, to be in force for a period of three years. It was urged that since the lease took terminated, with effect from 31-12-1996, the defendants became tenants holding over. She further pleaded that the defendants committed default in payment of rent, property tax, electricity bills, etc. Ultimately, she got issued a notice, dated 13-6-1997, u/s 106 of the Transfer of Property Act, terminating the lease, with effect from 31-7-1997. She claimed the reliefs of eviction of defendants and realization of arrears under various heads, with interest at 18%.

The suit was mainly contested by the second defendant. Defendants 1 and 3 remained ex parte. In her separate written statement, the 4th defendant disclaimed any interest in the suit schedule property. The second defendant pleaded that when he mooted the proposal for establishment of a bakery in the suit schedule premises, the husband of the plaintiff expressed his willingness to join the business, and that the suit schedule property was, in fact, leased to Dr. Cooks Bakers Oven. He denied the existence of any lease in favour of the first defendant. He stated that when the plaintiff threatened to dispossess him and the actual lessee, he filed O.S. No. 656 of 1997 and obtained orders of temporary injunction. He flatly denied his liability to pay any amount.

The trial Court clubbed O.S. No. 656 of 1997 filed by the second defendant, and O.S. No. 1306 of 1997 filed by the plaintiff, and through a common judgment dated 25-10-2005, dismissed O.S. No. 656 of 1997, and partly decreed O.S. No. 1306 of 1997, granting the relief of eviction and payment of arrears of rent, but dismissing the suit for recovery of amounts under other heads.

The appeal was listed for the purpose of condonation of delay and for grant of interim orders. The plaintiff filed a caveat in this Court. Learned Counsel for both the parties agreed that the appeal can be disposed of, at that stage itself, and made extensive submissions, touching on the merits.

Sri Bajrang Singh Thakur, learned Counsel for defendants 1 and 2 (appellants), submits that the plaintiff did not enter the witness box, and PW.1 was a stranger to the suit claim. He contends that the claim of the plaintiff cannot be said to have been proved, since she did not depose as a witness. It is also his case that Ex.A-8, lease deed dated 7-12-1993, was inadmissible in evidence, since it was not registered. Learned Counsel points out that the actual lessee, viz. Dr. Cooks Bakers Oven, was not made a party, and the suit was not maintainable in law.

Sri K. Srinivas, learned Counsel for the plaintiff (respondent No. 1) on the other hand, submits that PW. 1 was examined, after obtaining the permission of the Court, since the plaintiff was seriously ill. He contends that PW. 1 spoke to the contents of the plaint, and placed material in support thereof. He points out that the second defendant was not consistent in his stand, and went on changing his version, to suit his convenience. Learned Counsel submits that the second defendant, who alone contested the suit, has no right to complain about the manner in which the plaintiff adduced the evidence, since he did not lead any oral or documentary evidence.

Both the learned Counsel have relied upon citations, in support of their respective contentions.

The plaintiff filed the suit for eviction of the defendants. In effect, the second defendant alone contested the suit. The first defendant is said to be a firm, represented by the second defendant. On the basis of the pleadings before it, the trial Court framed the relevant issues, touching upon the entitlement of the plaintiff, to evict the defendants and to recover various amounts towards arrears of rent, arrears of property tax and electricity charges, probable interest on the amount, which ought to have been deposited by the defendants, and a sum of Rs. 20,000/-, towards damages, per month. An issue was also framed, touching on the question as to why exactly was the lessee.

On behalf of the plaintiff, her son-in-law was examined as PW. 1 and Exs.A-1 to A-12 were marked. Important among them, are Ex.A-1, a notice dated 13-6-1997, issued u/s 106 of the Transfer of Property Act, and Ex.A-8, a lease deed dated 7-12-1993. On behalf of the defendants, neither any oral, nor any documentary evidence, was adduced. The suit was decreed for the reliefs of eviction and payment of arrears of rent. The other claims in the suit were rejected, and the plaintiff did not file any independent appeal, or cross-objections. Therefore, the points that arise for consideration, in this appeal, are;

(1) Whether the case of the plaintiff can be said to have been proved, when she did not examine herself as witness ?

(2) Whether Ex.A-8 was admissible in evidence ?

(3) Whether the defendants 1 and 2 have established their plea, raised in the written statement ?

Extensive submissions were made, touching on the first point. It was urged that unless the plaintiff had examined herself as a witness, the contents of the plaint cannot be said to have been proved. It is rather difficult to accept such a wide and general proposition. The pleadings of a party can be said to have been substantiated, if only a witness deposes to them satisfactorily, and he is subjected to cross-examination. Neither the Code of Civil Procedure, nor the Evidence Act, require that the pleadings of a party must be spoken to by that party alone. Depending on the circumstances, a person who is not a party to the suit, can figure as a witness and speak to the contents of pleadings. The only requirement is that he must have the proper authority from the party, on whose behalf he is deposing. Once such authority is established, he is very much competent to depose about the contents of the pleadings.

In the instant case, P.W.I was examined, only after obtaining the permission of the Court, and it is stated that the plaintiff could not depose as a witness, on account of her ill-health, at the relevant point of time. On behalf of the second defendant, neither any provision, nor any decided case, is cited to the effect that the pleadings cannot be spoken to by a non-party witness.

So far as the proof of the case of the plaintiff is concerned, PW. 1 narrated the circumstances, under which the lease was granted in favour of the defendants, and the manner in which it was terminated, by issuing a notice u/s 106 of the Transfer of Property Act. Nothing was elicited from this witness by the second defendant, to suggest that the lease did not exist, or that it was not terminated, in accordance with law.

As regards point No. 2, serious objection is raised about the admissibility of Ex.A-8, on the ground that it was not registered. It is true that being a lease deed for the period exceeding one year, in respect of an immovable property, it required registration, Ex.A-1 covered the period from 1-1-1994 to 31-12-1996. For subsequent periods, there did not exist any lease deed. The objection raised on behalf of the defendants could have been valid, if only Ex.A-28 related to the current period of lease. In Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation Ltd. Vs. Khaja Midhat Noor and Others, , the Supreme Court held that a tenancy automatically stands determined, after expiry of the initial lease period, and the continuance of the lessee, thereafter, for a period exceeding one year, without executing a fresh registered lease deed, must be treated as the holding over, from month to month. To the same effect is the judgment of this Court in Naveenchand and another Vs. Nagarjuna Travels and Hotels (P) Ltd., Basheerbagh Hyderabad, .

Even assuming that Ex.A-8 related to the current period, it can certainly be received in evidence, for collateral purposes, in the limited context of ascertaining the nature of possession of the property. In Giri Yadav Vs. L. Ramesh Goud, , it was held by this Court that such cases are covered by proviso to Section 49 of the Registration Act. Therefore, Ex.A-8 was very much admissible in evidence, at least for the collateral purpose.

Now remains the third point. In deciding a Us between the parties, the Court is to be guided by the extent of proof of the case of the plaintiff, on the one hand, and the nature of defence offered by the defendants, on the other hand. If the plaintiff fails to establish his case, the Court would be entitled to dismiss the claim, without even verifying the kind of resistance offered by the defendant. However, if the plaintiff makes a semblance of his case, the burden shifts to the defendant, to put forward his case and in the process, disprove the case of the plaintiff. The failure of a defendant to disprove, or neutralize the claim of the plaintiff, in such cases, may provide the basis for the Court to decree the suit.

The manner, in which the case of the plaintiff has been placed before the trial Court, has already been pointed out. The pleadings were spoken to by PW. 1. The relationship of lessor and lessee was established. Though there did not exist much of a dispute as regards this, Ex.A-1, the notice u/s 106 of the Transfer of Property Act, was proved. The defendants could have succeeded in the suit, if only they disproved the case of the plaintiff. For that, it was necessary to lead evidence. Except filing a written statement and cross-examining PW. 1, they did not choose to enter the witness box, nor did they adduce any documentary evidence. Therefore, the contents of the written statement of the defendant No. 2 remained unspoken to by any witness, and for all practical purposes, there was no resistance to the claim of the plaintiff.

The cumulative effect of the above discussion is that all the three points are deserved to be answered in favour of the plaintiff, and against defendants 1 and 2, the appellants.

There is another insurmountable difficulty for the defendants 1 and 2. The trial Court rendered a common judgment in two suits viz. O.S. Nos. 656 of 1997 and 1306 of 1997. The contesting parties are common in both the suits. Since no appeal was preferred against the decree in O.S. No. 656 of 1997, the judgment assumes finality and operates as res judicata, in the present appeal.

For the forgoing reasons, the appeal is dismissed. The second defendant is granted two months time to vacate the premises, in case he deposits half of the arrears within 15 days from today, and balance within one month, thereafter. In default, it shall be open to the plaintiff to execute the decree. There shall be no order as to costs.