1 S.A. No. 154/2011 HIGH COURT OF MADHYA PRADESH: JABALPUR SINGLE BENCH: HON. SHRI JUSTICE A.K. SHRIVASTAVA SECOND APPEAL NO. 154/2011 ......... Appellants : 1. Smt. Narmada Sahu Defendants aged 51 years, D/o Kashiram Sahu, W/o Pokhanlal Sahu, 2. Jitendra Sahu, aged 30 years, S/o Pokhanlal Sahu, 3. Mamta Sahu, aged about 30 years, W/o Jitendra Sahu, All residents of Kanongo Ward Near Police Station Bena Tehsil Bena, District Sagar, (M.P.) Versus ........ Respondent : 1. Ghanshyam Prasad, Plaintiff aged 64 years, S/o Nanhebhai alias Chotelal Chourasiya, Retired Employee, R/o Mahaveer Nagar, Kota, Rajasthan. ........ Respondent 2. Lakshmi Narayan, Defendant aged 53 years, S/o Kashiram Sahu, R/o Virsawarkar Ward, BenaTehsil District Sagar (M.P.) ................................................................................................ Appellants - Smt. Smita Verma, Advocate. Respondent No.1/ - Shri Sankalp Kochar Plaintiff ............................................................................................... 2 S.A. No. 154/2011 O R D E R (05/05/2011) 1. This second appeal has been filed at the instance of defendants/appellants having lost from both the courts below. Since the suit of the plaintiff/respondent no.1 has been decreed on the ground envisaged under Section 12(1) (b) of the M.P. Accommodation Control Act, 1961 (in short, the Act). 2. No exhaustive statement of facts are required to be narrated for the purpose of disposal of this second appeal. Suffice it to say, a suit for eviction was filed by the plaintiff on the ground envisaged under Section 12(1)(b) of the Act. The defendant no.1 remained ex parte however, defendants no.2 to 4/appellants filed their joint written statement. 3. The learned Trial Court framed necessary issues. After the evidence of the plaintiff was over, the case was fixed for recording defendants' evidence and a date 7.10.2008 was fixed. The defendants no. 2 to 4/appellants took time to adduce evidence which the learned Trial Court granted and fixed 7.10.08, 22.10.08, 4.12.08 and 12.12.08 for recording the evidence of defendants. Ultimately on 12.12.08, the right to adduce evidence was closed. The 3 S.A. No. 154/2011 learned Trial Court thereafter passed the judgment and decreed the suit of the plaintiff on the ground of sub- tenancy. 4. The appeal which has been filed by the defendants has been dismissed by the impugned judgment. 5. In this manner, this second appeal has been filed by the defendants/appellants. 6. This Court on 27.04.2011 has admitted this Second Appeal on the following substantial question of law:- “Whether learned Trial Court erred in substantial error of law by taking a harsh stand against the defendants closing their right to adduce evidence and thereby decreeing the suit of the plaintiff on the ground envisaged under Section 12(1)(b) of the M.P. Accommodation Control Act and the learned First Appellate Court committed the same error by affirming the said decree ?” 7. The contention of Smt. Verma, learned counsel for the appellants is that learned Trial Court by taking a very harsh stand jeopardized the valuable right of the appellants by closing their right to adduce evidence, hence, the judgment and decree passed by the learned two Courts below be set aside and the case be remanded to learned 4 S.A. No. 154/2011 Trial Court permitting the appellants to adduce their evidence. 8. On the other hand, Shri Sankalp Kochar, learned counsel appearing for the plaintiff/respondent no.1 argued in support of the impugned judgment passed by learned two Courts below and submitted that umpteen time was provided to the defendants to lead their evidence but they failed to adduce the evidence, hence no option was left with the Trial Court but to close their right to adduce evidence. 9. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed and the case be sent back to learned Trial Court. Regarding substantial question of law framed:- 10. On bare perusal of the order-sheets of the learned Trial Court, this Court finds that learned Trial Court fixed 12.5.08, 10.7.08 and 18.9.08 for plaintiff's evidence. On 18.9.08 the evidence of the plaintiff was over and thereafter the case was fixed for 7.10.08 for recording the defendants' evidence. On this date, the defendants' took time to adduce evidence but it was not objected by plaintiff's counsel and the date 22.10.08 was fixed for recording defendants' evidence. On this date again defendants took time to 5 S.A. No. 154/2011 adduce evidence but it was not objected by the plaintiff and the learned Trial Court fixed 14.11.08 for recording the evidence of defendants. On this date, the learned Trial Court was on leave as a result of which the Reader of the Court fixed the case for 20.11.08. On this date, learned Trial Court fixed the case for 4.12.08. Again on this date the defendants took time to adduce the evidence but it was not objected by plaintiff and the learned Trial Court fixed 12.12.08 for recording the defendants' evidence. On this date viz. 12.12.08, learned Trial Court closed the evidence of the defendants since the witnesses were not present. The purpose of quoting these order-sheets is that earlier when the defendants took time to evidence evidence it was not objected by the plaintiff or his counsel but it does not mean that for sine die case should be adjourned. 11. True, four dates were given for recording the evidence of the defendants but one important fact which cannot be materialized and blinked away is that all the four dates were given within a short span of time of near about two months only. In order to serve justice to the parties, I am of the view that one more opportunity should be given to the defendants to adduce the evidence. 6 S.A. No. 154/2011 12. The substantial question of law is thus answered in favour of the appellants and against the respondent/plaintiff and it is hereby held that by taking a very harsh stand jeopardizing the rights of the appellants, learned Trial Court has committed a grave error in closing their right to adduce evidence. Similar error has been committed by the learned First Appellate Court dismissing their first appeal. The substantial question is thus answered accordingly. 13. Resultantly, this appeal succeeds and is hereby allowed to the extent indicated above. The judgment and decree passed by the learned two Courts below are hereby set aside and the case is sent back to learned Trial Court to provide one more opportunity to the defendants to lead their evidence on payment of Cost of Rs.5000/-. Let the cost of Rs.5000/- be deposited in the Trial Court on or before 30.6.2011 failing which the defendants shall not be permitted to adduce their evidence and the judgment and decree passed by the two Courts below shall stand. 14. The parties are hereby directed to appear before the learned Trial Court on 30.6.2011. On this date, learned Trial Court shall fix a date for recording the evidence of 7 S.A. No. 154/2011 defendants. The learned Trial Court is further directed to conclude the trial on or before 31st August, 2011. 15. This appeal is accordingly allowed to the extent indicated above with no order as to costs. (A.K. SHRIVASTAVA) JUDGE rao 8 S.A. No. 154/2011 Second Appeal No. 154/2011 05.05.2011 Smt. Smita Verma, learned counsel for the appellants. Shri Sankalp Kochar, learned counsel for respondent no.1/plaintiff. They are heard. Order dictated. Signed and dated separately. (A.K. SHRIVASTAVA) JUDGE rao