HON’BLE SRI JUSTICER. RAGHUNANDAN RAO 

A.S.No.54 of 2020 

JUDGMENT: 

The respondents herein are the owners of a building, which was  being used as a hotel in the name and style of Hotel Annapurna, situated  in Tirupati town. The said hotel is the schedule premises of the suit. The  respondents had let out the suit schedule premises to M/s. Sri  Venkateswara Associates, a partnership firm having four partners, for a  period of 7 years commencing from 15.07.2007 to 14.06.2014. The terms  and conditions of the lease were said to have been reduced in writing on  14.08.2007 by way of an unregistered lease agreement on a monthly rent  of Rs.2,75,000/- per month initially, which was to be increased to  Rs.3,00,000/- per month till 15.06.2012 and Rs.3,60,000/- from  15.06.2012 to 14.06.2014. Thereafter the rent was reduced to  Rs.2,04,000/- by mutual agreement under a supplementary lease deed, which also extended the lease up to 31.03.2015. 

2. On 09.01.2014, the respondents received papers through  Court informing them that O.S.No.20 of 2015 had been filed by the  lessees before the III Additional District Judge, Tirupati for an injunction  against them. Thereafter, a legal notice was issued by the plaintiffs on  21.02.2015 to which a reply was given on 23.03.2015. 

3. The dispute finally culminated in filing of O.S.No.107 of 2015  before the IV Additional District Judge, Tirupati against five persons, who  were said to be the partners of M/s. Sri Venkateswara Associates. This  suit was filed for a decree and judgment directing the defendants to  vacate the suit premises and deliver the peaceful possession of the same  to the plaintiffs and for payment of costs, and such other orders that the 

RRR,J. 

A.S.No.54 of 2020 

Court may deem fit. It appears that the appellants had also filed  O.S.No.132 of 2016 claiming damages of Rs.1,65,00,000/-. This suit was  dismissed for default and the appellants have moved this Court by way of  C.R.P.No.2180 of 2019, which is still pending before this Court. 

4. The defendants in the suit filed their written statement. 

5. During the course of trial, the respondents/plaintiffs had  examined PWs.1 to 4 and marked Exs.A.1 to A.17 and the defendants had  examined DWs.1 and 2 and marked Exs.B.1 and B.2. 

6. The trial Court, after completion of trial and after hearing  both sides, allowed the suit by way of a judgment and decree dated  06.11.2019. Aggrieved by the said judgment and decree, the defendants 1  and 3 filed the present appeal. 

7. The appellants do not dispute the fact that the suit schedule  premises had been taken on lease by them. There is also no dispute that  a quit notice had been issued by the respondents after which the suit  came to be filed. However, it is the contention of the appellants that the  appellants had advanced sum of Rs.10,00,116/- as security deposit and  had also extended about Rs.75,00,000/- for interior decoration, repairs  and renovation of the suit schedule premises for running it as a hotel. The  appellants contend that they were entitled for recovery of the aforesaid  security deposit of Rs.10,00,116/- and the sum of Rs.75,00,000/-that had  been expended by the appellants. 

8. The trail Court, on the basis of these allegations, had framed  the following issues: 

1. Whether the plaintiffs are entitled for delivery of schedule  mentioned property as prayed for. 

2. To what relief?

RRR,J. 

A.S.No.54 of 2020 

9. The trial Court considered the question of whether plaintiffs  could not obtain possession without payment of aforesaid two sums of  money and held against the appellants. 

10. Sri O. Manohar Reddy, learned counsel appearing for Sri A.  Jagannadha Rao, the learned counsel for theappellants has taken this  Court through the evidence and the exhibits marked in the trial Court. 

11. The case of the appellants at paragraph 17 of the written  statement is that the firm of the appellants had invested Rs.75,00,000/- for interior decoration, furniture, fixtures, installation of machinery etc.  The details of the expenditure amounting to Rs.75,00,000/- was also set  out in the form of a table in paragraph 26 of the written statement. To  demonstrate and prove this allegation, a auggestionwas made to the 2nd plaintiff, who was examined as PW.1, that the defendants had spent more  than Rs.75,00,000/- for development of their business; a suggestion was  made to PW.2 that the defendants had always been ready to vacate the  premises if their security deposit of Rs.10,00,116/- and expenditure  incurred for renovating the building is repaid; the defendants had raised  the claim for Rs.75,00,000/- in the reply notice dated 23.03.2015, marked  as Ex.B.1 which also contain the details of the expenditure incurred in the  form of a table at the end of the said legal notice. 

12. Sri O. Manohar Reddy, learned counsel appearing for the  appellants would submit that as the respondents had not denied any of  these allegations made in the legal notice marked as Ex.B.1, the  contention raised in the written statement or in reply to the suggestions  made in the course of cross-examination of the witness of the  respondents, it would have to be taken that the claim of the appellants  relating to expenditure of Rs.75,00,000/- and the requirement of the 

RRR,J. 

A.S.No.54 of 2020 

respondents to repay the security deposit and the expenditure incurred by  the appellants is proved. He relies upon the judgments of the Hon’ble  Supreme Court in Muddasani Venkata Narasaiah (dead) through  L.Rs., vs. MuddasaniSarojana1and the Hon’ble High Court of Calcutta  in the case of A.E.G. Carapiet vs. A.Y. Derderian2for this proposition. 

13. Sri O. Manohar Reddy, learned counsel appearing for the  appellants contended that the expenditure of Rs.75,00,000/- incurred by  the appellants is deemed to be proved on account of non-demur of the  respondents in the course of pleadings or the trial. He submits that the  said expenditure was not a gratuitous expenditure and the appellants are  entitled for recovery of the said money before the suit schedule premises  can be handed over to the respondents herein. 

14. Sri E.V.V.S. Ravi Kumar, learned counsel appearing for the  respondents fairly submits that the respondents are ready to return the  security deposit amount as and when possession of the suit schedule  premises is handed over to the respondents. As far as reimbursement of  the alleged expenditure of Rs.75,00,000/- is concerned, he submits that  no such amounts are payable by the respondents. 

15. Sri E.V.V.S. Ravi Kumar, submits that except a bald  allegation in the legal notice and written statement, no material has been  placed before the trial Court to support the said claim. He would also draw  the attention of this Court to Exs.A.7 and A.9 which contained the minutes  of the meeting held between the respondents and the appellants on  13.04.2014 and 14.04.2014. In this meeting there was no discussion of  

1(2017) 1 SCC (Civ) 268 = 2016 (12) SCC 288 

2AIR 1961 Cal 359

RRR,J. 

A.S.No.54 of 2020 

any repayment of the alleged expenditure by the appellants to submit that  the claim of Rs.75,00,000/- is an afterthought which came up for the first  time only in the reply notice to the quit notice and the same is only an  untenable and unproved claim being made for the purpose of prolonging  the litigation. In reply to the contention of Sri O. Manohar Reddy, that no  suggestion of any nature had been made in relation to the expenditure  allegedly incurred by the respondents, he would draw the attention of this  Court to the suggestion made at page 113 of the paper book. This  suggestion recorded in this page was a suggestion made to DW1, that no  money was spent by the appellants towards repairs. 

Consideration of the Court

16. There is no dispute that the suit schedule property was let  out by the respondents to the appellants; a quit notice was issued by the  respondents to the appellants and that a reply notice was also issued by  the appellants, after which, the respondents filed O.S.No.107 of 2015 for  eviction and O.S.No.132 of 2016 for recovery of damages. 

17. The defence of the appellants is that they have no objection  to hand over the suit schedule premises back to the respondents provided  the respondents refund the security deposit of Rs.10,00,116/- and the  expenditure of Rs.75,00,000/- by the appellants for repairs and  maintenance of the suit schedule premises. 

18. As far as repayment of the security amount is concerned,  the respondents have fairly admitted that the said amount would be  returned at the time of taking over possession of the suit schedule  premises. 

RRR,J. 

A.S.No.54 of 2020 

19. In the circumstances, the only question that arises is  whether the appellants would be entitled for recovery of Rs.75,00,000/- as  condition precedent to handing over the suit schedule premises to the  respondents.  

20. The contention of the appellants, to be accepted by this  Court, would require the appellants to demonstrate that, they have spent  a sum of Rs.75,00,000/- for repairs and renovation of the suit schedule  premises and that either there was an agreement between the  respondents and the appellants that the appellants are entitled to recover  such money from the respondents or in the alternative, the appellants are  entitled, in law to recover such amount from the respondents, as a  condition precedent to eviction of the appellants. 

21. The appellants have not placed any material or evidence  before the trial Court to demonstrate that they have spent an amount of  Rs.75,00,000/- towards repairs and renovation. The entire case of the  appellants is based on the statement made in the reply notice to the quit  notice marked as Ex.B.1, the pleading in the written statement,  thestatements made in the deposition of the witnesses appearing for the  appellants, and the suggestions made to the witnesses appearing for the  respondents, that they have spent an amount of Rs. 75,00,000/- 

22. Sri O. Manohar Reddy contends that once such statements  have been made in the pleadings and the depositions, the said statements  would be binding on the other side unless the statements have been  specifically denied by the other side. In the present case, no such denial is  available and as such it would have to be treated that the statements  made in the reply notice and pleadings are admitted and there is no duty  cast on the appellants to prove the said expenditure. He would further 

RRR,J. 

A.S.No.54 of 2020 

submit that in view of the judgments of Muddasani Venkata Narasaiah  (dead) through L.Rs., vs. MuddasaniSarojana and the Hon’ble High  Court of Calcutta in the case of A.E.G. Carapiet vs. A.Y. Derderian, the  statements would have to be treated as admitted. 

23. The Hon’ble High Court of Calcutta in A.E.G. Carapiet vs.  A.Y. Derderian had held as follows: 

“9. The law is clear on the subject. Wherever the opponent  

has declined to avail himself of the opportunity to put his  

essential and material case in cross-examination, it must  

follow that he believed that the testimony given could not  

be disputed at all. It is wrong to think that this is merely a  

technical rule of evidence. It is a rule of essential justice. It  

serves to prevent surprise at trial and miscarriage of  

justice, because it gives notice to the other side of the  

actual case that is going to be made when the turn of the  

party on whose behalf the cross-examination is being  

made comes to give and lead evidence by producing  

witnesses. It has been stated on high authority of the  

House of Lords that this much a counsel is bound to do  

when cross-examining that he must put to each of his  

opponent’s witnesses in turn, so much of his own case as  

concerns that particular witness or in which that witness  

had any share. If he asks no question with regard to this,  

then he must be taken to accept the plaintiff’s account in  

its entirety. Such failure leads to miscarriage of justice,  

first by springing surprise upon the party when he has  

finished the evidence of his witnesses and when he has no  

further chance to meet the new case made which was  

never put and secondly, because such subsequent  

testimony has no chance of being tested and corroborated. 

10. On this point the most important and decisive authority  

is Browne v. Dunn, reported in (1893) 6 R 67. It is a  

decision of the House of Lords where Lord Herschell, L.C.,  

Lord Halsbury, Lord Morris and Lord Bowen were all 

RRR,J. 

A.S.No.54 of 2020 

unanimous on this particular point. Lord Chancellor  

Herschell, at page 70 of the report observed: 

“Now, my Lords, I cannot help saying that it seems  

to me to be absolutely essential to the proper conduct  

of a cause where it is intended to suggest that a  

witness is not speaking the truth on a particular point,  

to direct his attention to the fact, by some questions  

put in cross-examination showing that imputation is  

intended to be made, and not to take his evidence and  

pass is by as a matter altogether unchallenged and  

then, when it is impossible for him to explain, as  

perhaps he might have been able to do if such  

questions had been put to him, the circumstances  

which it is suggested indicate that the story he tells  

ought not to be believed, to argue that he is a witness  

unworthy of credit. My Lords, I have always  

understood that if you intend to impeach a witness you  

are bound, whilst he is in the box, to give him an  

opportunity of making any explanation which is open  

to him; and, as it seems to me, that is not only a rule  

of professional practice in the conduct of a case, but is  

essential to fair play and fair dealing with witnesses.” 

24. Subsequently, the Hon’ble Supreme Court in the case of  Muddasani Venkata Narasaiah (dead) through L.Rs., vs.  MuddasaniSarojana had affirmed the said proposition in the following  manner. 

15. Moreover, there was no effective cross-examination  

made on the plaintiff’s witnesses with respect to factum of  

execution of sale deed, PW 1 and PW 2 have not been  

cross-examined as to factum of execution of sale deed.  

The cross-examination is a matter of substance not of  

procedure one is required to put one’s own version in  

cross-examination of opponent. The effect of non-cross 

examination is that the statement of witness has not been  

disputed. The effect of not cross-examining the witnesses  

has been considered by this Court in Bhoju  

Mandal v. Debnath Bhagat [Bhoju Mandal v. Debnath 

RRR,J. 

A.S.No.54 of 2020 

Bhagat, AIR 1963 SC 1906] . This Court repelled a  submission on the ground that the same was not put  either to the witnesses or suggested before the courts  below. Party is required to put his version to the witness.  If no such questions are put the Court would presume that  the witness account has been accepted as held in Chuni  Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. [Chuni  Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd., 1957  SCC OnLine P&H 177 : AIR 1958 P&H 440] 

16. In Maroti Bansi Teli v. Radhabai [Maroti Bansi  Teli v. Radhabai, 1943 SCC OnLine MP 128 : AIR 1945 Nag  60] , it has been laid down that the matters sworn to by  one party in the pleadings not challenged either in  pleadings or cross-examination by other party must be  accepted as fully established. The High Court of Calcutta  in A.E.G. Carapiet v. A.Y. Derderian [A.E.G.  Carapiet v. A.Y. Derderian, 1960 SCC OnLine Cal 44 : AIR  1961 Cal 359] has laid down that the party is obliged to  put his case in cross-examination of witnesses of opposite  party. The rule of putting one’s version in cross examination is one of essential justice and not merely  technical one. A Division Bench of the Nagpur High Court 

in KuwarlalAmritlal v. RekhlalKoduram [KuwarlalAmritlal v. RekhlalKoduram, 1949 SCC OnLine MP 35 : AIR 1950 Nag  83] has laid down that when attestation is not specifically  challenged and witness is not cross-examined regarding  details of attestation, it is sufficient for him to say that the  document was attested. If the other side wants to  challenge that statement, it is their duty, quite apart from  raising it in the pleadings, to cross-examine the witness  along those lines. A Division Bench of the Patna High Court  in Karnidan Sarda v. Sailaja Kanta Mitra [Karnidan  Sarda v. Sailaja Kanta Mitra, 1940 SCC OnLine Pat 288 :  AIR 1940 Pat 683] has laid down that it cannot be too  strongly emphasised that the system of administration of  justice allows of cross-examination of opposite party’s  witnesses for the purpose of testing their evidence, and it  must be assumed that when the witnesses were not tested  in that way, their evidence is to be ordinarily accepted. In  the aforesaid circumstances, the High Court has gravely  erred in law in reversing the findings of the first appellate  court as to the factum of execution of the sale deed in  favour of the plaintiff.

10 

RRR,J. 

A.S.No.54 of 2020 

25. The Hon’ble High Court of Calcutta, has encapsulated the  basic principles that need to be followed , while cross examining a  witness. I am in complete and respectful agreement with the said  principles enunciated in the said judgement. The Hon’ble Supreme  Court’s affirmation of the said principles seals the entire issue. 

26. These principles would be applicable, to the present case, if  no suggestion had been made to the witnesses appearing for the  appellants. A suggestion denying the claims of the appellants had been  made to DW.1 that no money was spent by the defendants for repairs or  renovation of the suit schedule premises as the suit schedule premises  was a new construction. The deposition, of DW1, on this issue is as  follows: 

“We invested Rs. 75,00,000/- for the repairs,  

maintenance and machinery, during the period of Exs. A5  

and A6. It is not mentioned in Ex.A6 about Rs. 75,00,000/- 

investment by us towards maintenance, repairs and  

machinery. It is not true to suggest that we did not spend  

even single rupee towardsmaintenance, repairs and  

machinery, since the said building was a new one and we  

damaged the schedule properties.” 

27. In view of this specific suggestion, the principles laid down  in the aforesaid judgments would not be applicable to the present case. 

28. Once the primary requirement of proof of expenditure has  not been demonstrated before the trial Court or this Court, the further  issues that would have come up on such proof, do not require any further  consideration by this Court. 

29. Apart from this, as pointed out by Sri E.V.V.S. Ravi Kumar,  no counter claim of any nature had been made against the respondents  by the appellants on this count. No Court fee has been paid for seeking 

11 

RRR,J. 

A.S.No.54 of 2020 

such a relief. In the circumstances, the defence raised by the appellants  cannot be accepted. 

30. In view of the above discussion, this Court does not find any  basis for any interference with the judgment and decree of the trial Court.  Accordingly, the Appeal is dismissed.There shall be no order as to costs. 

As a sequel, pending miscellaneous petitions, if any, shall stand  closed. 

________________________ 

R. RAGHUNANDAN RAO, J 

25th March, 2022 

Js.

12 

RRR,J. 

A.S.No.54 of 2020 

HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO A.S.No.54 of 2020 

25th March, 2022 

Js

Comments

Leave a Reply

Sign In

Register

Reset Password

Please enter your username or email address, you will receive a link to create a new password via email.