Saturday 26 August 2017

When it is permissible to ask question in cross examination regarding title of landlord by sub tenant?

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.)

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