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Suresh Chandra Gupta Alias Babua Jauhari v. Smt. Genda Devi & Others - SECOND APPEAL No. - 828 of 2004 [2007] RD-AH 14878 (1 September 2007)

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Court No. 27

Second Appeal No. 828 of 2004

Suresh Chandra Gupta alias Babua Jauhari Vs. Smt. Genda Devi and others


Hon. Dilip Gupta, J.

The defendant has filed this Second Appeal for setting aside the judgment and decree passed by the learned Additional District Judge, Kanpur Nagar by which the Civil Appeal that had been filed against the ex parte decree of the Trial Court was allowed and the suit was decreed.

The suit had been filed with the allegations that the plaintiff was the tenant of a room and open verandah situated on the ground floor in which her son and husband were doing business of "Sarraf". The defendant was also a tenant of a room and verandah but the defendant was forcibly intending to place a show-case on the land under the tenancy of the plaintiff. A written statement was filed by the defendant denying the allegations made in the plaint. The Court appointed an Advocate Commissioner to submit his report. The Advocate Commissioner submitted his report in which it was mentioned that the defendant was intending to install a new show-case on the western side of the land. The Trial Court dismissed the suit by an ex parte decree. The Civil Appeal filed by the plaintiff was, however, allowed. The First Appellate Court placed reliance upon the evidence of PW 1 who was the husband of the plaintiff and upon the report of the Advocate Commissioner. The First Appellate Court also observed that the defendant had not placed any evidence which could controvert the evidence led by the plaintiff. The alleged compromise executed by the defendant with the son of the plaintiff was discarded as only the plaintiff could have entered into a compromise with the defendant as she was the tenant of the property in dispute. Thus on the basis of the evidence on record, the First Appellate Court decreed the suit.

Learned counsel for the appellant submitted that as the landlord of the property had not been examined, the First Appellate Court committed an error in decreeing the suit. This submission cannot be accepted because even without the evidence of the landlord there was sufficient material before the Court to come to the conclusion that the defendant was intending to put up the show-case on the land of which the plaintiff was the tenant. It was for the defendant to have produced the landlord if the defendant wanted to establish that the show-case was not being installed on the portion let out to the plaintiff. There is, therefore, no merit in this Second Appeal. It is, accordingly, dismissed at the admission stage as no substantial question of law arises for consideration in this Second Appeal.

Dt/- 1.9.2007



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