Dismissed

MD Khurshid Khan v. Khushwant Singh Sabherwal

Jharkhand HC2 Nov 2022C.M.P./62/2022

Case brief

AI extract

What is this about?

The High Court of Jharkhand dismissed a Civil Miscellaneous Petition challenging an order refusing additional evidence in a Civil Appeal. The court found no infirmity as the appeal had been pending for argument.

What did the court decide?

Petition dismissed and issue of I.A. No.5010 of 2022 disposed of.

What the court decided

MD Khurshid Khan Vs Khushwant Singh Sabherwal — Landlord and Tenant | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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C.M.P. No. 62 of 2022

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Md. Khurshid Khan .... .... …. Petitioner Versus 1. Khushwant Singh Sabherwal 2. The State of Jharkhand 3. Deputy Commissioner, Dhanbad 4. Superintendent of Police, Dhanbad .... .... .... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Petitioner : Mr. Jitendra Kumar Pasari, Advocate For the O.P. No.1 : Mr. Lukesh Kumar, Advocate For the O.P. Nos.2,3&4 : Mr. Praveen Akhouri, S.C. (Mines)-I Mr. Aishwarya Prakash, A.C. to S.C. (Mines)-I

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Oral Order

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10/ Dated :02.11.2022

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Instant Civil Miscellaneous Petition has been filed against the order dated 22.01.2022 passed in Civil Appeal No.69 of 2019 by learned District Judge-V, Dhanbad whereby and whereunder the petition filed under Order 41 Rule 27 for additional evidence, has been rejected.

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It is submitted by the learned counsel on behalf of petitioner that he was defendant in Original Title (Eviction) Suit No.03 of 2013 which was filed on the ground of default and personal necessity under Section 11(1)(c)&(d) of Jharkhand Building (L.R.E.) Control Act. 3. The suit was decreed against which the petitioner preferred appeal on the ground that he was not tenant rather he was in possession of the said shop on the basis of agreement of sale for which a separate suit for specific performance of contract has been filed being Title Suit No.136 of 2015 which is pending before the learned Court below.

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It is further submitted that suit property has already been sold by the plaintiff by registered sale deed dated 30.05.2005 by the plaintiff in favour of Khushwant Singh Shabherwal and Rabindra Singh Shabherwal. In order to bring this sale deed on record, the petition for additional evidence was filed. Although the sale deed was executed with respect to the suit property in the year 2005 but suppressing this fact, the plaintiff filed the Eviction Suit in the year 2013 claiming the property to be the owner of complex including the shop. Reliance has been placed in the case of Sanjay Kumar Singh Versus The State of Jharkhand reported in 2022 LiveLaw (SC) 268 wherein it has

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been held that admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause.

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It is submitted by the learned counsel on behalf of opposite party no.1 that Civil Appeal No.69 of 2019 is at the stage of argument since January, 2022 and the present petition has been filed only to delay the matter. Under Section 2(f) of the Jharkhand Building (L.R.E.) Control Act, ‘landlord’, means the owner of the building and includes a person who for the time being is receiving or is entitled to receive the rent of the building, whether on his own account or on behalf of another, or as an agent, trustee, executor, administrator, receiver, guardian or whoever so receives the rent, or entitled to receive the rent, if the building were let to a tenant.

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The respondent no.1, the plaintiff is the owner/proprietor of the building known as Sabherwal Complex, Naya Bazar, Dhanbad in which the defendant/petitioner was inducted as a monthly tenant under an agreement of tenancy dated 25.10.2004 the photo copy of which has been enclosed herewith the counter affidavit. The petitioner under this tenancy agreement had entered into an agreement to take the shop under rent of Rs.400/- per month and the advance of Rs.1,20,000/- was to be paid to the first party. In pursuance to the tenancy agreement, the petitioner had been paying rent earlier and after default eviction suit was filed. It is also submitted that it will be apparent from the judgment delivered in Title (Eviction) Suit that the petitioner have been paying rent to respondent no.1 and thereby admitting landlord tenant relationship. Once the landlord tenant relationship has been accepted, expressly or impliedly, it is not open to the tenant to take the plea that the landlord was not having a valid title in view of Section 116 of Evidence Act.

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Under the aforesaid circumstance, I do not find any infirmity in the impugned order.

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The Civil Miscellaneous Petition stands dismissed. Learned Appellate Court is directed to dispose of the appeal preferably within three months from the date of this order. I.A. No.5010 of 2022 stands disposed of.

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(Gautam Kumar Choudhary, J . )

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Anit

MD Khurshid Khan v. Khushwant Singh Sabherwal

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MD Khurshid Khan v. Khushwant Singh Sabherwal

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