KUNWAR BHAN Vs. RATAN LAL SHIVHARE AND OTHERS

JUDGEMENT

(1.) This second appeal has been filed under section 100 of the Code of Civil Procedure being aggrieved by judgment and decree dated 31.03.2009 passed by the Court of First Additional District Judge, Gwalior, in Civil Appeal No. 10-A/2008 affirming the judgment and decree dated 31.07.2008 passed by the Court of Civil Judge Class-II, Gwalior in Civil Suit No. 31-A/2007.

(2.) Appellant's contention is that an alternative accommodation was available with the landlord for running a business of his son for whom he wanted the present appellant to vacate the suit premises. He also submits that the documents pertaining to business of his daughter-in-law in one of the shops could not have been proved without producing the daughter-in-law in the witness-box and on the basis of such submissions, he submits that in the light of the law laid down in the case of Dinanath v. Pooranlal as reported in (2001 (5) SCC 705 , since the alternative available accommodation was not offered to the tenant in exchange, therefore, no decree could have been passed under the provisions of Section 12 (1) (f) of the M.P. Accommodation Control Act, 1961 (for short "Act"). He has also placed reliance on the judgment of this High Court in the case of L.S. Trading Company v. Manish Mishra as reported in 2010 (III)MPWN 2 , wherein the scope and extent of Sections 45 and 67 of the Evidence Act have been discussed and he has specifically drawn attention of this Court to para 5 of the said judgment to point out that in terms of the provisions contained in Section 67 of the Evidence Act, a document could have been proved only through one of the modes mentioned therein. He, therefore, submits that the plaintiff/father-in-law was not entitled to prove possession and occupation of one of the shops by his daughter-in-law without bringing her in the witness-box. Therefore, he submits that the learned trial Court as well as the learned appellate Court have wrongly relied on Ex.P/7, which, in fact, was never proved by the plaintiff as a proof of daughter-in-law running business in one of the shops as was mentioned in the plaint.

(3.) Another limb of the arguments is that since the premises, which was in possession of a Congress Party, was vacated and the plaintiff in his cross-examination has admitted that it was non-residential property, therefore, the first appellate Court erred in recording a finding that, that property was used for residential purpose of the plaintiff's family and availability of such alternative accommodation, as was vacated by the Congress Party, will not prejudice the case of the plaintiff.