Whether landlord can prove his bonafide need even without entering in witness box?

With respect we do not find ourselves in agreement with the proposition which has been adumbrated by the learned single Judging possession under Section 13[1][g] of the Bombay Act or under Clause 13 [3] [vi] of the Rent control Order for permission to determine the tenancy is to establish that he needs or requires the premises bona fide for his own use and occupation. The question whether the landlord so requires or needs the premises or the house and whether such need or requirement is bona fide or not would be a question of fact which of course the landlord would have to establish for success in the case. Neither the provisions of the Bombay Act nor the Rent control Order make any provision as to how and in what way the landlord has to establish these two facts. Under Section 13[3][vi] he has to satisfy the Rent Controller. It would appear that the evidence which the landlord would be sufficient to satisfy the Court or the Rent Controllers as the case may be. In the absence of any specific provision as to be established. These facts could be proved by the landlord by adducing any evidence which satisfies the Court or the Rent Controller. It may be that certain facts which are needed to establish these requirements are in the personal knowledge of the landlord alone and could not be proved unless he is examined. In such a case it may be necessary for the landlord to step in the witness-box and the authority concerned may not accept any other evidence. But if these two factors can be established by any other evidence, than that of the landlord requires the premises bone fide for his use and occupation, we fail to see why it should be necessary as a matter of law that the landlord must examine himself with fatal consequence if he omits to do so. It may be as has been said by the learned single Judge in Nanalal's case MANU/MH/0281/1981 : AIR1981Bom1 that bona fide requirement is state of mine though it may be something more. But it what is required to be done only by the should be necessary to be done only by the evidence of the landlord and none else if such requirement can be established to the entire satisfaction of the authorities concerned by any other evidence. In our view, the learned single Judge has laid down the proposition in a very wide, absolute and bona fide requirement of the landlord should or should not be accepted in a given case in the absence of the evidence of the landlord himself, would depend upon the facts and evidence in that particular case and any absolute proposition as has been done by the learned single Judge cannot be laid down in this behalf. It is for these reasons that we, with great respect to the learned single Judge, do not agree with what he has said and in our view Nanalal's case does not lay down the correct law in this respect.

13. What we have stated above is supported by the view taken by a Division Bench of this of this Court to which one of us [Ginwala J.] was a party, in Dattatraya v. Kamal, [L.P.A. No. 24 of 1979 decided on 21-9-1981]. Submission similar to the one which has been advanced by Mr. Aggrawal in this case was urged in that vase and while repelling this submission the Division Bench observed as follows:

"There is also no warrant for the proposition that bona fide need of the landlord cannot be said to be established unless the landlord or the landlady himself or herself steps in the witness-box to depose the need. The need can be established from the circumstances brought on record".

IN THE HIGH COURT OF BOMBAY AT NAGPUR

Special Civil Appln. No. 1669 of 1975

Decided On: 16.11.1983

Nathulal Gangabaks Khandelwal Vs. Nandubai 

Hon'ble Judges/Coram:

A.A. Ginwala and H.W. Dhabe, JJ.

Citation: 1984 Mh. L.J. 253

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Whether court can rely on evidence of witness who has not entered in witness box?

I have heard the learned counsel for the parties at length and I have also perused the exhibited documents. Since it has been urged on behalf of respondent no. 2 that the petitioner despite filing an affidavit in lieu of evidence had not entered the witness box and thus said affidavit could not be taken into consideration, that aspect of the matter would have to be first considered. As per provisions of Section 87(1) of the Act of 1951, an Election Petition has to be tried in accordance with the procedure applicable under the Code to the trial of suit. As per provisions of Order XVIII Rule 4(1) of the Code, examination-in-chief of a witness has to be on affidavit. As per Order XVIII Rule 4(2) of the Code, the cross-examination and re-examination of a witness whose evidence (examination-in-chief) by affidavit has been furnished to the Court has to be taken either by the Court or by the Commissioner appointed by it. Under Order XVIII Rule 5 of the Code, the manner in which evidence has to be taken in appealable cases has been prescribed.

The aforesaid provisions fell for consideration before the Hon'ble Supreme Court in Rasiklal Manikchand Dhariwal & Another Versus M.S.S. Food Products [MANU/SC/1408/2011 : (2012) 2 SCC 196]. A similar contention as sought to be raised by the respondent no. 2 herein was raised before the Hon'ble Supreme Court. It was urged therein that on behalf of the plaintiff, three witnesses were tendered in evidence and their examination-in-chief was filed by means of affidavits. However, as required under Order XVIII Rule 5 of the Code, said witnesses never entered the witness box nor confirmed the contents of the affidavits. After referring the various earlier decisions, it was observed by the Hon'ble Supreme Court in paragraphs 77 and 78 as under:-

"77. For all this, it cannot be said that in Ameer Trading Corpn. Ltd., it has been laid down as an absolute rule that in the appealable cases though the examination-in-chief of a witness is permissible to be produced in the form of affidavit, such affidavit cannot be treated as part of the evidence unless the deponent enters the witness box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature. Where the examination-in-chief of a witness is produced in the form of an affidavit, such affidavit is always sworn before the Oath Commissioner or the notary or judicial officer or any other person competent to administer oath. The examination-in-chief is, thus, on oath already.

78. In our view, there is no requirement in Order 18 Rule 5 that in appealable cases, the witness must enter the witness box for production of his affidavit and formally prove the affidavit. As it is such witness is required to enter the witness box in his cross-examination and, if necessary, reexamination. Since a witness who has given his examination-in-chief in the form of affidavit has to make himself available for cross-examination in the witness box, unless the defendant's right to cross-examine him has been closed, such evidence (examination-in-chief) does not cease to be legal evidence."

Thus, from the aforesaid, it is clear that there is no requirement in Order XVIII Rule 5 of the Code that in appealable cases, the witness must enter the witness box for production of his affidavit and formally prove the affidavit. In the present case, the respondent no. 2 has not chosen to cross-examine the petitioner and hence, merely for formally proving the affidavit, the petitioner was not required to enter the witness box. Moreover, the respondent no. 2 has also not stepped into the witness box after tendering his affidavit in lieu of evidence. He was also not sought to be cross-examined by the petitioner.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Election Petition No. 6/2014

Decided On: 31.10.2018

Sevakbhau Nirdhangi Waghaye Patil Vs.  The Returning Officer, Sakoli and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2019(3) MHLJ 510

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Whether defendant can compel plaintiff to enter into witness box to give evidence?

Order XII, Rule 2 of the Code enables the party to call upon other party to admit, within seven days from the date of service of notice, any document and it further provides that in case the other party refuses or neglects to admit the documents after service of such notice, the party giving notice to produce documents can take further steps and in such situation party which refuses or neglects to produce the documents will have to pay the costs of proving those documents. This provision does not enable the defendant to compel the plaintiff to enter the witness box to give evidence. It only entitles the party giving notice to admit documents to recover the costs incurred by it for proving the documents, irrespective of the result of the civil suit.

6. Order XVI, Rule 1 of sub-rule (2) of the Code provides for the procedure which is required to be followed by a party who desires to obtain any summons from the Court for the attendance of any person. Again this provision does not deal with right of the defendant to compel the plaintiff to enter the witness box to give evidence.

7. Though the submission made on behalf of the petitioner/defendant that examination of Madhusudan is necessary to prove the document which the defendant has produced on record appears to be correct at the first blush, in the absence of any such provision and considering the fact that the defendant and plaintiff No. 1 (Madhusudan) are contesting parties, the prayer made on behalf of the defendant cannot be accepted. The defendant has other options available as per law to prove the documents.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 1772 of 2016

Decided On: 27.11.2018

Ramchandra Krushnaji Dhale Vs.  Madhusudan Jhunjhunwala and Ors.

Hon'ble Judges/Coram:

Z.A. Haq, J.

Citation: 2019(3) MHLJ 532

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What should be done if there is error in Affidavit of examination in chief?

 In the light of the above, I do not find that the impugned order
could be termed as being perverse or erroneous. The petitioner
cannot be permitted to withdraw his affidavit filed before the
Court. However, considering the law laid down, the plaintiff
would have the option of explaining the error in the affidavit by
stepping into the witness box to lead further oral examinationinchief
or file an additional affidavit as a part of the examinationinchief
and clarify the mistake if any.”
THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6779 OF 2009
WITH
WRIT PETITION NO.1892 OF 2017

Abdul Samad Nazmoddin  Vs Abdul Wahed  Shaikh Ameer,

Coram: Ravindra V.Ghuge, J.

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Whether witness is required to enter into witness box to prove affidavit of his examination in chief?

The aforesaid provisions fell for consideration before the Hon'ble Supreme Court in Rasiklal Manikchand Dhariwal & Another Versus M.S.S. Food Products [MANU/SC/1408/2011 : (2012) 2 SCC 196]. A similar contention as sought to be raised by the respondent no. 2 herein was raised before the Hon'ble Supreme Court. It was urged therein that on behalf of the plaintiff, three witnesses were tendered in evidence and their examination-in-chief was filed by means of affidavits. However, as required under Order XVIII Rule 5 of the Code, said witnesses never entered the witness box nor confirmed the contents of the affidavits. After referring the various earlier decisions, it was observed by the Hon'ble Supreme Court in paragraphs 77 and 78 as under:-

"77. For all this, it cannot be said that in Ameer Trading Corpn. Ltd., it has been laid down as an absolute rule that in the appealable cases though the examination-in-chief of a witness is permissible to be produced in the form of affidavit, such affidavit cannot be treated as part of the evidence unless the deponent enters the witness box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature. Where the examination-in-chief of a witness is produced in the form of an affidavit, such affidavit is always sworn before the Oath Commissioner or the notary or judicial officer or any other person competent to administer oath. The examination-in-chief is, thus, on oath already.

78. In our view, there is no requirement in Order 18 Rule 5 that in appealable cases, the witness must enter the witness box for production of his affidavit and formally prove the affidavit. As it is such witness is required to enter the witness box in his cross-examination and, if necessary, reexamination. Since a witness who has given his examination-in-chief in the form of affidavit has to make himself available for cross-examination in the witness box, unless the defendant's right to cross-examine him has been closed, such evidence (examination-in-chief) does not cease to be legal evidence."

Thus, from the aforesaid, it is clear that there is no requirement in Order XVIII Rule 5 of the Code that in appealable cases, the witness must enter the witness box for production of his affidavit and formally prove the affidavit. In the present case, the respondent no. 2 has not chosen to cross-examine the petitioner and hence, merely for formally proving the affidavit, the petitioner was not required to enter the witness box. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Election Petition No. 6/2014

Decided On: 31.10.2018

Sevakbhau Nirdhangi Waghaye Patil  Vs. The Returning Officer, Sakoli and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: AIR 2019 Bom 56

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Whether suit can be decreed if defendant has not entered into witness box?

 Unfortunately, the learned Appellate Judge was disturbed by the fact that the petitioner-tenant had not entered into the witness box. He has said so repeatedly in para 13 of his judgment which I have quoted above and the approach of the learned trial Judge seems to be that if a tenant had not examined himself, though he had led other evidence, the version of the plaintiff could be accepted straightway and should not be dis-believed. It is difficult to appreciate such a general proposition of law and the approach, in my view, is totally erroneous if not perverse. Assuming that, in a given case, the tenant did not examine himself, if the evidence led by the landlord was not enough to substantiate the case sought to be made out by him, his case ought to be rejected. The trial Court rightly thought that decree cannot be passed merely because the tenant did not choose to examine himself by entering into the witness box.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1942 of 1983

Decided On: 10.11.1994

Somnath Krishnaji Gangal  Vs. Moreshwar Krishnaji Kale and Ors.

Hon'ble Judges/Coram:

A.V. Savant, J.

Citation: 1995(3) BomCR 327

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Whether it is permissible to draw adverse inference it party fails to enter witness box?

On the contrary, the trial court as well as the first appellate court
have rightly dismissed the suit of the appellant because its sole proprietor
Vinod Kumar Gupta has not entered into the witness box. The Supreme
Court in Vidhyadhar vs. Mankikrao & Another; AIR 1999 SC 1441 has
clearly held that where a party to the suit does not appear into the witness
box and states his own case on oath and does not offer himself to be
cross-examined by the other side, a presumption would arise that the case
set up by him is not correct. Based on the same analogy, as Vinod Kumar
Gupta, the sole proprietor has not entered into the witness box in the
instant case, consequently, the case which has been set up by him cannot
be deemed to have been proved and accepted by the court.
 HIGH COURT OF DELHI AT NEW DELHI
R.S.A. No.156/2014
Decided on : 25th February, 2015
SHIV INDUSTRIES

Versus
TATA POWER DELHI DISTRIBUTION LTD

CORAM:
HON’BLE MR. JUSTICE V.K. SHALI

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Whether court can draw adverse inference if party fails to enter into witness box?

Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors. , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.

Supreme Court of India

Vidhyadhar vs Manikrao & Anr. on 17 March, 1999

Equivalent citations: AIR 1999 SC 1441, 1999 (3) ALT 1 SC, JT 1999 (2) SC 183, 1999 (2) SCALE 93, (1999) 3 SCC 573, 1999 1 SCR 1168, 1999 (1) UJ 665 SC

Bench: S Ahmed, D Wadhwa

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Whether court can draw adverse inference if party fails to enter in witness box?

DW1 admitted that she had no document showing her
title to the suit plot and that the defendant had not obtained any
licence for construction of structure in the suit plot. It is not
known as to why the defendant, who was only 49 years old in the

year 2001 when the evidence was recorded, did not enter the
witness box. Adverse inference as drawn by the Trial Court and
the First Appellate Court appears to be absolutely correct. In the
case of “Vidhyadhar” (supra), the Apex Court has held that
where a party to the suit does not appear into the witness box and
state his own case on oath and does not offer himself to be cross-
examined by the other side, a presumption would arise that the
case set up by him is not correct. 


IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 100 of 2004

Shri Damaciano Fernandes, Vs  St. Anthony's Chapel,

CORAM :- U. V. BAKRE, J.

Pronounced on : 13th June, 2014.
Citation;2015(2) ALLMR576

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Whether prosecution can ask the accused to enter the witness box to prove documents authored by him?

Author and signatories of the above referred two letters are accused Nos. 1 and 2. The letters purporting to have been signed and sent by them

were received by the Managing Director of the complainant and this fact is deposed to by witness Sharad Doshi. In view of this, if the accused persons allege that the said letters were not signed and sent by the accused persons, burden lies on them to prove the same. The contention of the learned Counsel that the contents of this document and the truth for the same cannot be proved without examining the author of the same is against the basic principles of criminal jurisprudence, because prosecution can never ask the accused to enter into witness box as a witness of prosecution. In fact, the accused cannot be called in the witness box even as defence witness unless he makes a written request for the same. Not only this, even in the statement under Sec.313 Cr.P.C. wherein the incriminating circumstance are required to be put to the accused to enable him to explain the same, the accused is not bound to answer those questions, though the Court may draw adverse inference against him if he keeps quiet. In such circumstances, to suggest that the document written by and signed by the accused could not be proved without examining the accused as witness of the prosecution is against the settled position of law and therefore this contention of the learned Counsel for the petitioner is liable to be rejected.

Bombay High Court

Ashish C. Shah vs M/S. Sheth Developers Pvt.Ltd. on 16 March, 2011

Bench: J. H. Bhatia

DATE : 16th March, 2011.

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