1 S.B. Civil Misc. Appeal No.122/1994 Smt. Sukh Sunder Devi. vs. Smt. Saraswati Devi. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT ::: S.B. Civil Misc. Appeal No.122/1994 Smt. Sukh Sunder Devi. vs. Smt. Saraswati Devi. Date : 26.2.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.NM Lodha, for the appellant. Mr.PS Bhati, for the respondent. - - - - - BY THE COURT : REPORTABLE Heard learned counsel for the parties and perused the record. As happened in this case is that the plaintiff/appellant filed a suit for eviction against her tenant in the trial court on 6.5.1983 2 S.B. Civil Misc. Appeal No.122/1994 Smt. Sukh Sunder Devi. vs. Smt. Saraswati Devi. with the allegation that the defendant/respondent took the suit premises on rent on 19.5.1981 for Rs.140/- per month. The defendant sub-let the premises to M/s. Marudhara Sanitary Traders and parted with possession and handed over it to said M/s. Marudhara Sanitary Traders. The plaintiff also stated that the said sub-letting is without her consent. The defendant submitted written statement with the plea that the suit premises was taken on rent by the defendant and there is prohibition in the rent deed that the defendant shall not sub-let the suit premises. However, according to the defendant, there was no restriction of taking a partner in the business of the defendant as she was lady and she herself could not do the business, then in reply to para no.6(d) of the plaint, the defendant stated that the defendant took partner and doing the business but she has not parted with possession of the suit premises and presently, the business of sanitary ware is running in the suit premises and for that, there was no necessity of taking consent of the plaintiff. 3 S.B. Civil Misc. Appeal No.122/1994 Smt. Sukh Sunder Devi. vs. Smt. Saraswati Devi. On the basis of above pleadings, issues were framed by the trial court and the issue involved in this appeal is whether the defendant sub-let the suit premises and parted with possession of the premises to the sub-lette. In the trial court, the plaintiff produced her husband Ganga Shanker as witness PW1, PW2 Moti Lal, PW3 Vasudev and PW4 Chiman Singh whereas in rebuttal to the said oral evidence of the plaintiff and plaintiff's witnesses, the defendant herself appeared to give her statement on 1.5.1989 as DW1 and after some statement of defendant, the defendant's counsel sought time to produce the partnership deed obviously the partnership deed which might have been between the defendant and her partner but after 1.5.1989 till 16.8.1990, neither the defendant appeared nor she produced the witness to rebut the evidence of the plaintiff. The plaintiff produced an invitation card of opening of M/s. Marudhara Sanitary Traders as Ex.4 issued by Bheemraj Gandhi and Jagdish Gandhi with address Shanker Bhawan, Gole Building, 1st B Road, Sardarpura, Jodhpur, which is the building wherein the suit premises is situated. As sated above, neither the defendant appeared nor she produced 4 S.B. Civil Misc. Appeal No.122/1994 Smt. Sukh Sunder Devi. vs. Smt. Saraswati Devi. any witness to rebut the oral evidence of the plaintiff's witnesses. She also did not chose to produce any documentary evidence. As she herself did not appear, therefore, she could not have proved any document to rebut the evidence of the plaintiff. In the above facts and circumstances, the trial court after hearing the parties decreed the suit of the plaintiff vide judgment and decree dated 25.8.1990 holding that the suit premises has been sub-let by the defendant and she handed over the possession of the suit premises to the sub- lettee. The other issues are not relevant for the purpose of deciding this appeal. The defendant being aggrieved against the judgment and decree dated 25.8.1990 preferred regular first appeal which was allowed by the first appellate court vide judgment and decree/order dated 22.4.1993 and the first appellate court held that since the sub-tenant was not impleaded as party in the suit, therefore, the decree passed by the trial court dated 25.8.1990 deserves to be set aside for impleading the sub- 5 S.B. Civil Misc. Appeal No.122/1994 Smt. Sukh Sunder Devi. vs. Smt. Saraswati Devi. lettee M/s. Marudhara Sanitary Traders as party in the suit and for re-trial. The first appellate court did not consider the other points namely, the question of sub-letting decided by the trial court. Obviously, because of the reason that the first appellate court found sub-lette as necessary party in the suit and the first appellate court could not have decided any question/issue involved in the suit for which finding has been recorded by the trial court as it would have been a decision on the back of sub-lette who was found by the appellate court to be necessary party for deciding the question of sub-letting. Being aggrieved against the first appellate court's judgment dated 22.4.1993, S.B. Civil Misc. Appeal No.122/1994 was preferred before this Court which was allowed by the Single Bench of this Court vide judgment dated 19.4.2002 and this Court set aside the judgment and decree/order dated 22.4.1993 of the first appellate court and upheld the judgment and decree of the trial court dated 25.8.1990 after holding that sub-lettee is not necessary party. It will be worthwhile to mention here that the single bench of this Court while allowing S.B. Civil Misc. Appeal No.122/1994 while 6 S.B. Civil Misc. Appeal No.122/1994 Smt. Sukh Sunder Devi. vs. Smt. Saraswati Devi. setting aside the order of remand passed by the first appellate court dated 22.4.1993 restored the decree of the trial court which could not have been done as S.B. Civil Misc. Appeal No.122/1994 was only against the order of remand passed by the first appellate court and misc. appeal was preferred by the plaintiff wherein the defendant/ respondent could not have argued on merits of issues involved in suit and on the merits of his regular first appeal nor this Court in misc. appeal had any decision of first appellate court on the merits of the issues decided by the trial court. Substantially, any decision on merit by this Court in misc. appeal was beyond the scope of the misc. appeal. Then an application was submitted by the tenant/respondent under Order 41 Rule 21 CPC for recalling of judgment of this Court dated 19.4.2002 passed in S.B. Civil Misc. Appeal No.122/1994. Said application was dismissed by the same learned Single Bench of this Court vide order dated 22.11.2006. The respondent/tenant aggrieved against the judgment of this Court dated 19.4.2002 passed in S.B. Civil Misc. Appeal No.122/1994 and order 7 S.B. Civil Misc. Appeal No.122/1994 Smt. Sukh Sunder Devi. vs. Smt. Saraswati Devi. dated 22.11.2006 passed in S.B. Civil Misc. Application No.48/2002, preferred special appeal before the Hon'ble Apex Court wherein leave was granted and the Hon'ble Apex Court allowed the Civil Appeal No.5128/2007 by order dated 2.11.2007 and remanded the matter to this Court to decide the following question :- “Whether the judgment and decree of the trial court holding that the appellant had inducted a sub-tenant without the consent of the landlord and, therefore, was liable to be evicted from the suit premises, is justified or not ?” It will be worthwhile to mention here that the Hon'ble Apex Court observed that :- “Ordinarily we would have sent the case back to the first appellate court for deciding the same on merits but in the facts and circumstances of the case and in order to shorten the period of litigation, we feel it proper to send the case to the High Court for deciding it on merits. For the reasons aforesaid, we set aside the orders of the High Court and restore the appeal being Civil Misc. 8 S.B. Civil Misc. Appeal No.122/1994 Smt. Sukh Sunder Devi. vs. Smt. Saraswati Devi. Appeal No.122/1994 and remit the matter back to the High Court for hearing the same on merits.” (emphasis supplied) The Hon'ble Apex Court further made it clear that :- “We make it clear that the question whether the suit is liable to be dismissed on the ground that the sub-tenant was not made a party cannot now be reopened before the High Court.” In view of the above reasons, the parties were heard on merits to decide the question referred by the Hon'ble Apex Court. Learned counsel for the appellant vehemently submitted that it is a case of no rebuttal evidence and the plaintiff fully proved his case by oral as well as documentary evidence that the suit premises has been let out to the sole defendant Saraswati Devi who sub-let the property to M/s. Marudhara Sanitary Traders and the possession of the suit premises has been handed over to the said sub-lettee. It is also submitted that in fact, the suit could have been decreed 9 S.B. Civil Misc. Appeal No.122/1994 Smt. Sukh Sunder Devi. vs. Smt. Saraswati Devi. under Order 8 Rule 5 CPC as the defendant did not specifically deny the specific fact of sub-letting the suit premises without the consent of the landlord to M/s. Marudhara Sanitary Traders in his written statement. The plaintiff produced her husband as witness PW1 who clearly stated that the suit premises has been let out by the respondent to M/s. Marudhara Sanitary Traders for a consideration in the form of rent of Rs.400/- per month. It also came in the oral evidence of the witnesses of the plaintiff that M/s. Marudhara Sanitary Traders is a partnership firm of Bheemraj Gandhi and his three sons and Bheemraj Gandhi is paying rent of Rs.400/- to the defendant and Bheemraj Gandhi himself admitted before the plaintiff's husband that he is giving Rs.400/- as rent to the defendant and he also stated that he (Bheemraj Gandhi) is ready to pay Rs.400/- to the landlord and they may settle the matter. The plaintiff's witness PW2 Moti Lal stated that in the suit shop, the business of sanitary ware is going on which was started in the year 1982 and is running in the name of M/s. Marudhara Sanitary Traders and 10 S.B. Civil Misc. Appeal No.122/1994 Smt. Sukh Sunder Devi. vs. Smt. Saraswati Devi. possession of the suit premises is with Gandhi family and not with the defendant. PW3 and PW4 also supported the plaintiff's case. The plaintiff also produced the invitation card issued for opening of M/s. Marudhara Sanitary Traders in the name of Bheemraj Gandhi and Jagdish Gandhi with the address where the suit premises is admittedly situated. The defendant in her statement admitted that initially grocery business was going on in the suit premises under the supervision of her husband and her sons and she also used to go there. She admitted that presently in the suit premises, sanitary business is going on and her partners are doing the business. She stated that for this business, there is no written partnership deed. Even after saying so in the Court, time was sought on behalf of the defendant to produce the partnership deed and because of that reason only, further evidence of the defendant was kept reserved and the case was adjourned. After 1.5.89, time was sought for evidence of the defendant. Then an application under Order 13 Rule 2 CPC was filed by the defendant for seeking permission to 11 S.B. Civil Misc. Appeal No.122/1994 Smt. Sukh Sunder Devi. vs. Smt. Saraswati Devi. produce the partnership deed. On 10.7.89, arguments were heard on the application filed by the defendant under Order 13 Rule 2 CPC and that application was rejected by the trial court's order dated 13.7.89 with costs of Rs.50/-. Then the case was adjourned for defendant's evidence without costs or on costs, particularly on 12.12.89 on payment of costs of Rs.30/-, then on 23.1.90 on payment of costs of Rs.70/-, then on 5.3.90 on payment of costs of Rs.50/-, then case was adjourned for evidence of the defendant on several occasions and ultimately, on 16.8.90, her evidence was closed and arguments were heard and the suit was decreed against the defendant by the trial court vide judgment and decree dated 25.8.1990. From the statement of plaintiff's witnesses, it is fully proved that the suit premises was let out by the defendant to M/s. Marudhara Sanitary Traders and for which invitation card was issued by Bheemraj Gandhi and Jagdish Gandhi as per Ex.4 to open M/s. Marudhara Sanitary Traders in the suit premises situated in Shanker Bhawan, Gole Building, 1st B Road, Sardarpura, Jodhpur which is 12 S.B. Civil Misc. Appeal No.122/1994 Smt. Sukh Sunder Devi. vs. Smt. Saraswati Devi. the address of plaintiff also who is residing in the same building. Neither the defendant nor her witnesses who could have been her sub-lettes chose to rebut the evidence of the plaintiff's witnesses, therefore, it was a case of no rebuttal from the defendant so far as the allegation of the plaintiff made in the plaint and statements given on oath are concerned about defendant sub-letting the suit shop and handing over possession of the shop to sub-lette. Apart from the fact that a fact which was specifically in the knowledge of the defendant about the business running in the suit premises, the defendant did not choose to give her own statement nor she choose to produce her husband and her sons, who according to her, were earlier doing the business of grocery in the suit shop nor she choose to produce her alleged partners which she admitted to be her partners and are running business in the suit premises. The plaintiff came with a specific case that in the suit shop, sanitary business is running and it has been admitted by the defendant herself in her statement on oath in the trial court which can be read as admission in favour of the plaintiff's 13 S.B. Civil Misc. Appeal No.122/1994 Smt. Sukh Sunder Devi. vs. Smt. Saraswati Devi. plea and whatever she stated in her examination in chief, though is not rebutting the plaintiff's evidence and even if it is to be considered to be rebuttal to the plaintiff's evidence, then cannot be read in evidence, because the defendant did not appear to allow her cross examination by the plaintiff. The defendant if do not appear for cross examination by the plaintiff, then her evidence so far as it favours the plaintiff can be considered and can be relied upon and no evidence given against the interest of the plaintiff can be read in evidence. Learned counsel for the respondent submitted that the respondent/defendant denied the allegations of sub-letting in the written statement and she could have run the business in the suit premises which is rented premises with the help of her partners and inducting the partners is not sub-letting. Learned counsel for the respondent also submitted that the respondent produced the rent deed in the trial court and sought permission to produce the said deed by moving application under Order 13 Rule 2 CPC. For this, it is suffice to state that the trial court 14 S.B. Civil Misc. Appeal No.122/1994 Smt. Sukh Sunder Devi. vs. Smt. Saraswati Devi. was justified in rejecting the application filed by the defendant under Order 13 Rule 2 CPC which was filed at the time of evidence of the defendant and that too after the defendant's own statement on oath in the Court that there is no written partnership. From the said statement itself, it is clear that there was no written partnership between the defendant and her alleged partners and the document for which permission was sought by the defendant is only a result of after thought and partnership deed is a concocted document. At the cost of repetition, it will be relevant to mention here again that the defendant in her written statement also has not stated that said M/s. Marudhara Sanitary Traders is her partnership firm nor denied that business of M/s. Marudhara Sanitary Traders is not running in the shop in dispute. That also supports only that the story of having partnership with the owners or partners of M/s. Marudhara Sanitary Traders, is a concocted story only. Since the Hon'ble Apex Court directed this Court to decide the question of sub-letting on merits, therefore, this Court has examined all 15 S.B. Civil Misc. Appeal No.122/1994 Smt. Sukh Sunder Devi. vs. Smt. Saraswati Devi. evidence available on record of the trial court and considered the entire pleadings of the parties and is of the view that the trial court was fully justified in deciding issue no.2 in favour of the plaintiff and rightly held that the defendant sub- let the suit premises to M/s. Marudhara Sanitary Traders and parted with possession and in view of the above reason and in the light of the direction of the Hon'ble Apex Court, the judgment and decree of the trial court dated 25.8.1990 is upheld as the Hon'ble Apex Court directed this Court to decide the issue of sub-letting on merits. In view of the above, this appeal is allowed accordingly. (PRAKASH TATIA), J. S.Phophaliya