IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.61 of 2003 1. Ganesh Mahto 2. Gopal Mahto 3. Ram Babu Mahto All sons of Late Laxmi Mahto, residents of Mohalla-Koiri Tola, Kutubuddin Lane, P.O. Bankipore, P.S. Pirbahore, District - Patna. …..Defendants-Appellants-Appellants. Versus 1. Manorma Devi W/o Late Tribhuwan Sah 2. Madhuri Devi W/o Late Vijay Kumar Gupta 3. Manju Kumari W/o Ajay Mahajan 4. Mridula Gupta W/o Dr. Umesh Prasad 5. Mamta Gupta W/o Name not known All daughters of late Ram Sharan Sao and Lalpati Devi, deceased. 6. Jainendra Pd.Gupta 7. Jai Prakash Gupta 8. Jai Kumar Prasad 9. Jai Shankar Prasad 10. Jai Kant Prasad All sons of Late Ram Sharan Sao, residents of Mohalla Bakarganj, P.S. Pirbahore, District - Patna. ……..Plaintiffs-Respondents-Respondents. For the appellants : M/s Shiva Nandan Ray, Sr.Advocate, Mathura Nath Ray and Prabhat Kumar, Advocates. For respondent nos.1 to 5 : M/s R.K. P.Singh, Bal Bhushan Choudhary and Manish Kishore, Advocates. For respondent nos.6 to 10 : M/s Raghib Ahsan, Sr.Advocate and Kundan Bahadur, Advocate. ----------- ORDER 18/ 09.02.2009 This second appeal has been filed by defendants- appellants-appellants challenging the judgments and decree of both the learned courts below. 2. The matter arises out of Eviction Suit No. 54 of 1989 which was filed by the plaintiffs-respondents-respondents for 2 eviction of the defendants-appellants from the suit premises, which is a house on the grounds of default in payment of rent by the defendants as well as personal necessity of the plaintiffs with respect to the suit house for his business, etc. 3. The said eviction suit was decreed on contest with cost by the learned Munsif-I, Patna vide judgment and decree dated 07.03.1992. Against the aforesaid judgment and decree of the trial court the defendants-appellants filed Title Appeal No.31 of 1992 which was dismissed on contest with cost by the learned 6th Additional District Judge, Patna vide his judgment and decree dated 24.02.2003. The said judgments and decree of the learned courts below are under challenge in the instant second appeal. 4. Both the learned courts below considered the pleadings as well as the evidence of the parties and also the specific provisions of law with respect thereto and found that the sale deed of the suit premises was in favour of Late Ram Sharan Sao, the predecessor of the plaintiffs. The learned courts below also found that the claim of the defendants was that their predecessor was the Munshi of Ram Sharan Sao and had purchased the suit properties benami in the name of his master Ram Sharan Sao, but the defendants miserably failed to prove the said benami transaction, whereas the said Ram Sharan Sao and after his death his heirs, namely the plaintiffs were duly recorded in the Government Records as well as in the Municipal Register and paid rent and it was also proved that it was Ram Sharan Sao 3 who had paid the consideration money and hence both the learned courts below found that although the onus of proving their claim of benami purchase was upon the defendants but they miserably failed to discharge the said onus. Both the learned courts below also found from the evidence of the parties that the plaintiffs had established relationship of landlord and tenant between the parties by valid evidence and the defendants were in possession as tenants and were never in adverse possession of the suit premises. 5. From further consideration of the evidence of the parties, both the learned courts below found that the defendants- appellants stopped payment of rent from March, 1989 and as such they became defaulter for more than two months and hence they were liable to be evicted on that ground. So far the personal necessity is concerned, the learned courts below also found that the plaintiffs had been able to prove by both oral and documentary evidence that they were unable to start their wholesale cement business due to non-availability of suitable accommodation and hence they had bonafide personal requirement of the suit premises, which will not be satisfied by partial eviction of the defendants. These findings are concurrent findings of facts arrived at by the learned courts below on the basis of legal and proper consideration of the respective pleadings and evidence of the parties and this court in second appeal has no occasion at all to interfere with them. 6. Learned counsel for the appellants raised another 4 point against the judgment of the learned court of appeal below stating that although learned counsel for the appellants as well as learned counsel for the respondents were heard but without giving the appellants any opportunity to reply, the learned lower appellate court passed its judgment which is violative of Rule 30 read with Rule 16 (2) of Order XLI of the Code of Civil Procedure (hereinafter referred to as ‘the Code’ for the sake of brevity). In support of the said claim, he refers to an order of the learned court of appeal below dated 14.02.2003 in which it was mentioned that learned counsel for the appellants and learned counsel for the respondents were heard and 24.02.2003 was fixed for judgment in the title appeal. In addition to Rule 16 (2) mentioned above, learned counsel for the appellants also relies upon Warton’s Law Lexicon in which definition of hearing included reply. He also relies upon Osborn’s Concise Law Dictionary in which definition of trial (hearing) included reply. 7. In this connection, it has to be noted that the suit for eviction of defendants-appellants, filed in the year 1989, was decreed on 07.03.1992 but the title appeal filed by the defendants in 1992 remained pending for about 11 years and only thereafter the argument was started on behalf of the defendants-appellants on 30.01.2003 when his counsel was heard at length. However, on the next date i.e. 31.01.2003 the defendants-appellants filed a time petition which was rejected by the lower appellate court and learned counsel for the respondents was heard in part. On 5 01.02.2003 also the appellants filed a time petition which was also rejected by that court. On 03.02.2003 another petition for time was filed on behalf of the appellants, which was again rejected and the argument of the respondents’ counsel was concluded, whereafter 04.02.2003 was fixed for appellants to give their reply. On 04.02.2003 appellants or their counsel did not appear and there was no pairvi on their behalf due to which the appeal was adjourned to 05.02.2003 but again on that date also the appellants or their counsel did not appear nor any pairvi was made on their behalf and the case was adjourned for appellants reply to 10.02.2003. On that date also neither the appellants nor their counsel appeared in the court and again the matter was adjourned to 14.02.2003 but on that date also the appellants or their counsel did not appear and hence the learned court of appeal below had no option but to close the augments of the parties and fix 24.02.2003 for judgment. It has to be noted that although from the date of close of arguments i.e. 14.02.2003 till the date for delivery of judgment i.e. 24.02.2003 there was a gap of about ten days but in the meantime neither the defendants-appellants nor their learned counsel appeared in the court of appeal below nor made any prayer either oral or in writing for allowing them to reply. In the said circumstances, the learned court of appeal below had no option left but to pronounce its judgment on 24.02.2003, which is under challenge in this second appeal. 8. So far the reliance of the parties on Order 17 Rule 6 XLI of the Code is concerned, it is quite apparent that the said provision is in respect of a situation when the appellants or their counsel do not appear in court to start their arguments and on the date fixed for the same they do not appear when the appeal is called for hearing, but here the matter is different as the learned court of appeal below had heard the argument of the appellants, whereafter the argument of the respondents’ counsel was also concluded but in spite of several adjournments for the purpose, arguments in reply were not made on behalf of the appellants. No doubt, Rule 16 of the said Order entitles the appellants to reply but failure to reply would not attract the provision of Rule 17 as the augment had already been placed on behalf of the appellants at the first instance. 9. This court in case of M/s Patliputra Industries & another Vs. Rameshwar Prasad Choudhary, reported in 1991 (2) P.L.J.R. 605 has specifically held that when the hearing of appeal is adjourned to another date before completion of the submissions on behalf of the appellants, the court may treat the case of the appellants as closed on failure on the part of the appellants to appear on the date fixed for further argument, as it is not a situation where the appeal could have been dismissed for default and hence Order XLI Rule 17 of the Code has no application. In another matter, this court in case of Noor Alam Vs. Md. Ishaque & another, reported in 1992 B.B.C.J. 123 held that if the appellant has been heard on some dates and the appellant did not appear on 7 the next adjourned date, the appeal should not be dismissed in default, rather the court should deliver its judgment. Similarly, the Hon’ble Apex Court in case of Mohammad Khalil Vs. Kamaruddin, reported in 1996 (5) SCC 625 held that when an appeal is posted for hearing, it is the duty of the counsel to appear and even when the appellant has changed his counsel it is his duty to see that the counsel was ready. If the counsel is not present, the court is not incumbent to adjourn the case. Even otherwise some substantial arguments were made and the appeal was rightly dismissed on merits confirming the decree of the court below warranting no interference. In view of the above mentioned settled provisions of law this court does not find any substance even in this point raised on behalf of the appellants. 10. The third point raised by learned counsel for the defendants-appellants is that plaintiffs had no locus to file the suit for eviction of the defendants from the suit property as it has already been partitioned by a civil court vide a compromise decree. The said submission of learned counsel for the appellants is absolutely frivolous as in the earlier partition suit a compromise petition was filed partitioning all the properties by metes and bounds except the suit property of the instant eviction suit which was kept joint and only the shares of all the co-shares, including the plaintiffs-respondents, in the said property were defined. In the said circumstances even according to the said claim, the plaintiffs- respondents are co-shares and hence they have a right to sue for 8 eviction of the tenants, namely the defendants-appellants. Reference in this regard may be made to two decisions of the Hon’ble Apex Court in case of Sri Ram Pasricha vs. Jagannath and others, reported in A.I.R. 1976 SC 2335 and in case of Pal Singh vs. Sunder Singh (dead) by Lrs. and others, reported in A.I.R. 1989 SC 758. 11. The fourth point raised by learned counsel for the defendants-appellants is that the eviction suit, from which this appeal has arisen, is not maintainable in view of the decision of this court in case of Lallan Kishore Saran vs. Tara Chand Agarwal, reported in 1984 P.L.J.R. 432 as this is a composite suit for eviction on the grounds of default and personal necessity both. This point is as frivolous as the earlier points, if not more, as the said decision was overruled by a Full Bench of this Court in case of Ladu Gopal Kedia vs. Bibi Jaibunissa, reported in 1991 (2) P.L.J.R. 1 (FB) and it was held that composite suit for eviction on both the said grounds was maintainable. 12. In the aforesaid facts and circumstances, there is no illegality in the impugned judgments and decree of the learned courts below, nor does this court find any substantial questions of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code. harish/ ( S.N.Hussain, J.)