During the course of crossexamination of the respondentplaintiff,
when the petitioners put some questions in the context of
ownership, rights of the respondentplaintiff in respect of the suit
premises, the same were objected. The objection was upheld by the
Trial Court. The order made by the Trial Court reads thus:
In view of ratio in Harveer Singh vs. Shri Kissan Singh
Tomar & Ors, 2010(2) RCJ 21 & after hearing Ld. Counsel
Shri. D.C. Mehta having gone through law of pleading &
ratio Gajanan Laxman Bhalchandra vs Rangrao Amrutrao
Deshpande & Oths. 1980 BCR 675 defd. no.2 shall restrict
his crossexamination to the point of subletting only.
7] Learned counsel for the petitioners submitted that in light of
pleadings in paragraphs 5 and 6 of the written statement as also
issue NO.3, the petitioners were very much entitled to crossexamine
the respondentplaintiff, inter alia, on the issue of ownership to the
suit premises.
8] On the other hand, Mr. Vivek Kantawala, learned counsel for
respondentplaintiff submitted that a subtenant can crossexamine
only on the issue of lawfulness or otherwise of the subletting. In this
regard, Mr. Kantawala has placed reliance upon the decision of
Madhya Pradesh High Court in case of Harveer Singh Vs. Kishan
Singh Tomar and ors.1
, as also the decision of this Court in case of
1 2020(2) M.P.L.J. 322
Yeshpal J. Parikh vs. Rasiklal Umedchand Parikh2.
9] Having heard learned counsel for the parties and perused the
record, in my judgment, there is no reason to curtail the crossexamination
of the petitioners. This is because, in the present case,
the original tenant has not filed any written statement and admitted
ownership of the respondentplaintiff. Further, the petitioners in
paragraphs 5 and 6 of the written statement has categorically
pleaded that the respondentplaintiff is not the coowner in respect
of the suit premises and that the respondentplaintiff has no
authority to file the proceeding seeking eviction of the petitioners
from the suit premises. Although, the issues are not happily cast,
there is an all pervasive issue No.3, which requires the plaintiff to
establish that he is entitled to a decree of possession of the suit
premises as prayed. In these circumstances, there is no justification
curtailing the petitioners' right to crossexamine the respondentplaintiff
on the aspects pleaded in paragraphs 5 and 6 of the written
statement.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8544 OF 2014
Hiralal Manchharam & Sons Pvt. Ltd. & anr.
vs.
Kamlesh Harnamsingh Chowhan & anr.
CORAM : M. S. SONAK, J.
DATE : 21 JULY 2015.
1] Rule. With the consent of and at the request of learned
counsel for the parties, Rule is made returnable forthwith.
2] This petition challenges the orders dated 14 March 2013 and
22 August 2014 made by the Trial Court and the Appeal Court
curtailing the petitioners' right to crossexamine the respondentlandlord
on the issue whether the landlord is entitled to possession
of decree in respect of suit premises.
3] In this Court, the respondentlandlord has instituted R.A.E.
Suit No. 495/796 of 2005 seeking eviction of the original tenant and
the petitioner, who has been styled as the subtenant, inter alia, on
the ground of unlawful subletting.
4] The original tenant has not filed any written statement. The
petitioners herein had filed a written statement and the following
defence has been taken at paragraphs 5 and 6.
5. The Defendants further states that the Plaintiff is not
the coowner of the suit property and thus has misrepresented
himself as the coowner of the suit property and thus
committed contempt and perjury of this Hon'ble Court by
making false statement. The Defendants states that the
Plaintiff has got no right and/or authority to file the present
Suit, particularly in view of the fact that there is a litigation
pending in the Hon'ble High Court at Allahabad between the
Plaintiff and other real coowners in the said Hon'ble High
Court at Allahabad for in the said suit there is an order that
the deceased Smt. Chandrakumari (mother of Plaintiff)
alongwith Mr. Gangasingh jointly to act as a managers of the
suit property.
6. The Defendants states that the Plaintiff have
misrepresentative himself as the person to collect the rent in
respect of the said suit premises. The Defendants states that
the admitted and/or undisputed facts and events and the legal
proceedings between the parties and the order passed therein
from the death of Motisingh Lalsingh upto the date of filing of
the present suit.
5] The issues were framed in this case on 17 June 201, which
reads thus:
ISSUES
1. Does the plaintiff prove that original deceased tenant
was found in arrears of rent since from June, 1998 ?
2. Does the plaintiff prove that, defendant no. 1 sublet
the portion of suit premises to defendant nos.2 and 3
unlawfully ?
3. Whether the plaintiff is entitled for a decree of
possession of suit premises as prayed ?
4. What order and decree ?
6] During the course of crossexamination of the respondentplaintiff,
when the petitioners put some questions in the context of
ownership, rights of the respondentplaintiff in respect of the suit
premises, the same were objected. The objection was upheld by the
Trial Court. The order made by the Trial Court reads thus:
In view of ratio in Harveer Singh vs. Shri Kissan Singh
Tomar & Ors, 2010(2) RCJ 21 & after hearing Ld. Counsel
Shri. D.C. Mehta having gone through law of pleading &
ratio Gajanan Laxman Bhalchandra vs Rangrao Amrutrao
Deshpande & Oths. 1980 BCR 675 defd. no.2 shall restrict
his crossexamination to the point of subletting only.
7] Learned counsel for the petitioners submitted that in light of
pleadings in paragraphs 5 and 6 of the written statement as also
issue NO.3, the petitioners were very much entitled to crossexamine
the respondentplaintiff, inter alia, on the issue of ownership to the
suit premises.
8] On the other hand, Mr. Vivek Kantawala, learned counsel for
respondentplaintiff submitted that a subtenant can crossexamine
only on the issue of lawfulness or otherwise of the subletting. In this
regard, Mr. Kantawala has placed reliance upon the decision of
Madhya Pradesh High Court in case of Harveer Singh Vs. Kishan
Singh Tomar and ors.1
, as also the decision of this Court in case of
1 2020(2) M.P.L.J. 322
Yeshpal J. Parikh vs. Rasiklal Umedchand Parikh2
.
9] Having heard learned counsel for the parties and perused the
record, in my judgment, there is no reason to curtail the crossexamination
of the petitioners. This is because, in the present case,
the original tenant has not filed any written statement and admitted
ownership of the respondentplaintiff. Further, the petitioners in
paragraphs 5 and 6 of the written statement has categorically
pleaded that the respondentplaintiff is not the coowner in respect
of the suit premises and that the respondentplaintiff has no
authority to file the proceeding seeking eviction of the petitioners
from the suit premises. Although, the issues are not happily cast,
there is an all pervasive issue No.3, which requires the plaintiff to
establish that he is entitled to a decree of possession of the suit
premises as prayed. In these circumstances, there is no justification
curtailing the petitioners' right to crossexamine the respondentplaintiff
on the aspects pleaded in paragraphs 5 and 6 of the written
statement.
10] The decision, in case of Harveer Singh (supra) is
distinguishable. In the said case, the Court found that the
2 AIR 1955 Bombay 318
defendant/appellant had not denied the ownership of the plaintiff.
On the contrary, there was an admission with regard to the said
aspect. It is in these circumstances, that the Court held that the subtenant
is entitled to oppose the suit only on the grounds of subtenancy.
This Court, in case of Yeshpal J. Parikh (supra), has laid
down the general proposition that the Court has and should have a
discretion in controlling the crossexamination.
11] For the aforesaid reasons, the impugned orders are set aside. It
is directed that there shall be no curtailment upon the right of the
petitioners to crossexamine the respondentplaintiff on the aspects
pleaded in paragraphs 5 and 6 of the written statement.
12] It is, however, clarified that should the petitioners abuse the
liberty granted by this order and indulge into crossexamination
which is unduly prolix or irrelevant, then the Trial Court would be at
liberty to make appropriate orders. Further, the Trial Court is
directed to dispose of the R.A.E. Suit NO. 495/ 796 of 2005 as
expeditiously as possible and in any case within a period of one year
from today.
13] All parties to appear before the Trial Court on 1 August 2015,
at 11.00 a.m. and produce an authenticated copy of this order.
14] Rule is made absolute to the aforesaid extent. There shall,
however, be no order as to costs.
15] All concerned to act upon an authenticated copy of this order.
(M. S. SONAK, J.)
when the petitioners put some questions in the context of
ownership, rights of the respondentplaintiff in respect of the suit
premises, the same were objected. The objection was upheld by the
Trial Court. The order made by the Trial Court reads thus:
In view of ratio in Harveer Singh vs. Shri Kissan Singh
Tomar & Ors, 2010(2) RCJ 21 & after hearing Ld. Counsel
Shri. D.C. Mehta having gone through law of pleading &
ratio Gajanan Laxman Bhalchandra vs Rangrao Amrutrao
Deshpande & Oths. 1980 BCR 675 defd. no.2 shall restrict
his crossexamination to the point of subletting only.
7] Learned counsel for the petitioners submitted that in light of
pleadings in paragraphs 5 and 6 of the written statement as also
issue NO.3, the petitioners were very much entitled to crossexamine
the respondentplaintiff, inter alia, on the issue of ownership to the
suit premises.
8] On the other hand, Mr. Vivek Kantawala, learned counsel for
respondentplaintiff submitted that a subtenant can crossexamine
only on the issue of lawfulness or otherwise of the subletting. In this
regard, Mr. Kantawala has placed reliance upon the decision of
Madhya Pradesh High Court in case of Harveer Singh Vs. Kishan
Singh Tomar and ors.1
, as also the decision of this Court in case of
1 2020(2) M.P.L.J. 322
Yeshpal J. Parikh vs. Rasiklal Umedchand Parikh2.
9] Having heard learned counsel for the parties and perused the
record, in my judgment, there is no reason to curtail the crossexamination
of the petitioners. This is because, in the present case,
the original tenant has not filed any written statement and admitted
ownership of the respondentplaintiff. Further, the petitioners in
paragraphs 5 and 6 of the written statement has categorically
pleaded that the respondentplaintiff is not the coowner in respect
of the suit premises and that the respondentplaintiff has no
authority to file the proceeding seeking eviction of the petitioners
from the suit premises. Although, the issues are not happily cast,
there is an all pervasive issue No.3, which requires the plaintiff to
establish that he is entitled to a decree of possession of the suit
premises as prayed. In these circumstances, there is no justification
curtailing the petitioners' right to crossexamine the respondentplaintiff
on the aspects pleaded in paragraphs 5 and 6 of the written
statement.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8544 OF 2014
Hiralal Manchharam & Sons Pvt. Ltd. & anr.
vs.
Kamlesh Harnamsingh Chowhan & anr.
CORAM : M. S. SONAK, J.
DATE : 21 JULY 2015.
1] Rule. With the consent of and at the request of learned
counsel for the parties, Rule is made returnable forthwith.
2] This petition challenges the orders dated 14 March 2013 and
22 August 2014 made by the Trial Court and the Appeal Court
curtailing the petitioners' right to crossexamine the respondentlandlord
on the issue whether the landlord is entitled to possession
of decree in respect of suit premises.
3] In this Court, the respondentlandlord has instituted R.A.E.
Suit No. 495/796 of 2005 seeking eviction of the original tenant and
the petitioner, who has been styled as the subtenant, inter alia, on
the ground of unlawful subletting.
4] The original tenant has not filed any written statement. The
petitioners herein had filed a written statement and the following
defence has been taken at paragraphs 5 and 6.
5. The Defendants further states that the Plaintiff is not
the coowner of the suit property and thus has misrepresented
himself as the coowner of the suit property and thus
committed contempt and perjury of this Hon'ble Court by
making false statement. The Defendants states that the
Plaintiff has got no right and/or authority to file the present
Suit, particularly in view of the fact that there is a litigation
pending in the Hon'ble High Court at Allahabad between the
Plaintiff and other real coowners in the said Hon'ble High
Court at Allahabad for in the said suit there is an order that
the deceased Smt. Chandrakumari (mother of Plaintiff)
alongwith Mr. Gangasingh jointly to act as a managers of the
suit property.
6. The Defendants states that the Plaintiff have
misrepresentative himself as the person to collect the rent in
respect of the said suit premises. The Defendants states that
the admitted and/or undisputed facts and events and the legal
proceedings between the parties and the order passed therein
from the death of Motisingh Lalsingh upto the date of filing of
the present suit.
5] The issues were framed in this case on 17 June 201, which
reads thus:
ISSUES
1. Does the plaintiff prove that original deceased tenant
was found in arrears of rent since from June, 1998 ?
2. Does the plaintiff prove that, defendant no. 1 sublet
the portion of suit premises to defendant nos.2 and 3
unlawfully ?
3. Whether the plaintiff is entitled for a decree of
possession of suit premises as prayed ?
4. What order and decree ?
6] During the course of crossexamination of the respondentplaintiff,
when the petitioners put some questions in the context of
ownership, rights of the respondentplaintiff in respect of the suit
premises, the same were objected. The objection was upheld by the
Trial Court. The order made by the Trial Court reads thus:
In view of ratio in Harveer Singh vs. Shri Kissan Singh
Tomar & Ors, 2010(2) RCJ 21 & after hearing Ld. Counsel
Shri. D.C. Mehta having gone through law of pleading &
ratio Gajanan Laxman Bhalchandra vs Rangrao Amrutrao
Deshpande & Oths. 1980 BCR 675 defd. no.2 shall restrict
his crossexamination to the point of subletting only.
7] Learned counsel for the petitioners submitted that in light of
pleadings in paragraphs 5 and 6 of the written statement as also
issue NO.3, the petitioners were very much entitled to crossexamine
the respondentplaintiff, inter alia, on the issue of ownership to the
suit premises.
8] On the other hand, Mr. Vivek Kantawala, learned counsel for
respondentplaintiff submitted that a subtenant can crossexamine
only on the issue of lawfulness or otherwise of the subletting. In this
regard, Mr. Kantawala has placed reliance upon the decision of
Madhya Pradesh High Court in case of Harveer Singh Vs. Kishan
Singh Tomar and ors.1
, as also the decision of this Court in case of
1 2020(2) M.P.L.J. 322
Yeshpal J. Parikh vs. Rasiklal Umedchand Parikh2
.
9] Having heard learned counsel for the parties and perused the
record, in my judgment, there is no reason to curtail the crossexamination
of the petitioners. This is because, in the present case,
the original tenant has not filed any written statement and admitted
ownership of the respondentplaintiff. Further, the petitioners in
paragraphs 5 and 6 of the written statement has categorically
pleaded that the respondentplaintiff is not the coowner in respect
of the suit premises and that the respondentplaintiff has no
authority to file the proceeding seeking eviction of the petitioners
from the suit premises. Although, the issues are not happily cast,
there is an all pervasive issue No.3, which requires the plaintiff to
establish that he is entitled to a decree of possession of the suit
premises as prayed. In these circumstances, there is no justification
curtailing the petitioners' right to crossexamine the respondentplaintiff
on the aspects pleaded in paragraphs 5 and 6 of the written
statement.
10] The decision, in case of Harveer Singh (supra) is
distinguishable. In the said case, the Court found that the
2 AIR 1955 Bombay 318
defendant/appellant had not denied the ownership of the plaintiff.
On the contrary, there was an admission with regard to the said
aspect. It is in these circumstances, that the Court held that the subtenant
is entitled to oppose the suit only on the grounds of subtenancy.
This Court, in case of Yeshpal J. Parikh (supra), has laid
down the general proposition that the Court has and should have a
discretion in controlling the crossexamination.
11] For the aforesaid reasons, the impugned orders are set aside. It
is directed that there shall be no curtailment upon the right of the
petitioners to crossexamine the respondentplaintiff on the aspects
pleaded in paragraphs 5 and 6 of the written statement.
12] It is, however, clarified that should the petitioners abuse the
liberty granted by this order and indulge into crossexamination
which is unduly prolix or irrelevant, then the Trial Court would be at
liberty to make appropriate orders. Further, the Trial Court is
directed to dispose of the R.A.E. Suit NO. 495/ 796 of 2005 as
expeditiously as possible and in any case within a period of one year
from today.
13] All parties to appear before the Trial Court on 1 August 2015,
at 11.00 a.m. and produce an authenticated copy of this order.
14] Rule is made absolute to the aforesaid extent. There shall,
however, be no order as to costs.
15] All concerned to act upon an authenticated copy of this order.
(M. S. SONAK, J.)
No comments:
Post a Comment