The failure of a party to personally testify does not automatically lead to adverse inference, especially when the case can be proved by other competent witnesses.

1. Heard learned counsel for the parties.

2. The petition challenges two concurrent judgments and decrees passed by the Courts below, namely, learned District Judge-3, Amravati in Regular Civil Appeal No. 134 of 2010 and learned Joint Civil Judge Junior Division, Amaravati in Small Cause Suit No. 26 of 2008.

3. The suit was originally instituted by the respondent herein as landlord against the petitioner as tenant. The suit sought eviction of the petitioner on the ground of bona-fide need of the landlord and also on the ground of illegal subletting by the petitioner. The bona fide need was stated to be not only of the landlord, i.e. the respondent himself, but also of his son, who was a family member residing with him and was of marriageable age. It was the case of the respondent that he and his son were doing business on handcart and now wanted to settle down in their business in the suit premises. It was claimed in the suit that the petitioner had already sublet the premises to one Narendra Sawarkar. It was also the case of the respondent that the petitioner was having his own separate shop and had no need for the suit premises. The trial Court as well as the lower appellate Court found in favour of the plaintiff both on the ground of bona fide need and on illegal subletting. The decree of eviction passed by the trial Court was, accordingly, confirmed by the lower appellate Court.

4. The only ground on which the present petition is pressed before this Court is that the respondent having filed the present suit through a constituted attorney and neither the plaintiff nor his constituted attorney having stepped into the witness box to prove the case, an adverse inference needs to be drawn. Relying on the judgment of the Hon’ble Supreme Court in the case of Vidhyadhar vs. Manikrao and another, AIR 1999 SC 1441, learned counsel for the petitioner submits that since the plaintiff did not step into the witness box or state his own case on oath or offer himself to be cross-examined by the other side, the Court ought to have drawn an inference against the plaintiff that the case set up by him was not correct. Learned counsel submits that the Court, in the premises, ought not to have decreed the suit. In Vidhyadhar’s case, the original plaintiff, who was the appellant before the Hon’ble Supreme Court, had filed the suit for redemption of mortgage by conditional sale or, in the alternative, for a decree of specific performance of the contract for repurchase of the suit property. The suit was decreed by the trial Court and the decree was upheld by the Lower Appellate Court. The Hon’ble Supreme Court, however, set aside both the judgments and disposed of the suit by directing restoration of the suit property to the defendant on payment of a certain sum. The case of the contesting defendant before the Court was that the document drawn in his favour was not a mortgage by conditional sale but an out and out sale and since the amount of consideration had not been tendered within the time stipulated therein, the plaintiff could not claim reconveyance of the suit property. One of the questions before the Court was whether the sale deed purportedly executed by defendant No. 2 in favour of the plaintiff in that case was fictitious and the whole transaction was a bogus transaction as only a meagre amount was paid as sale consideration to defendant No. 2. The contesting defendant (defendant No. 1), in the premises, was mainly contesting the transaction of sale between the plaintiff and defendant No. 2. Defendant No. 1 did not step into the witness box or state his own case on oath and did not offer himself to be cross-examined. In the premises, the Hon’ble Supreme Court held that a presumption would arise that the case set up by him was not correct. The Court, in this behalf, referred to judgments of various High Courts as well as the Privy Council. These judgments were to the effect that when a party abstains from entering the witness box,