The defendant-appellant has preferred this appeal against judgment and decree dated 17.7.92 passed by Second Addl. District Judge Khargone, in Civil Regular Appeal No. 8-A/91 affirming the judgment and decree dated 20.8.91 passed by Civil Judge Class I Bhikangaon in C.S. No. 71A/88 whereby the suit of the plaintiff-respondent for eviction and arrears of rent and mesne profits was decreed.

The case of the plaintiff-respondent is that the suit-premises was given on rent to the defendant-appellant on 19.4.78 at monthly rent of Rs. 10/-, the document in support of which was executed by the defendant. According to the plaintiff, the defendant did not pay rent at the rate of Rs. 10/- per month and is due since 29.11.78. It is the case of the plaintiff that on 24.5.86 a legal notice was given to the defendant for payment of arrears of rent as also for eviction of the suit premises. The tenancy was terminated by the said notice with effect from 29.6.86.

Case of the defendant is that he is not the tenant of the plaintiff and he has not executed any deed of tenancy in favour of the plaintiff and as such, the plaintiff is neither entitled for arrears of rent nor for eviction. His further case is that the property in question belongs to him.

The two Courts below have concurrently held that the defendant is the tenant of the plaintiff.

By order dated 27.1.93 the appeal was admitted for final hearing on following substantial question of law :-

Whether the Courts below erred in not drawing an adverse inference against the plaintiff for having not examined himself in the suit?

The fact that the plaintiff was not examine? during trial, is not disputed. However, P.W. 1 Sriram who is the son of the plaintiff has stated in his evidence that the plaintiff was not examined as he is old and immobile. The defendant has also admitted in his cross-examination about the old age and immovability of the plaintiff.

Shri B.A. Nigam appearing on behalf of the appellant submitted that as the plaintiff did not examine himself the Courts below ought to have drawn adverse inference. As I have stated above, the reason for non-examination of the plaintiff and admitted by the defendant is already explainer Learned counsel in support of his case placed reliance on a decision of the Privy Council in the case of Lal Durga Baksh Singh v. Rani Brij Raj Kuar (AIR 1938 PC 40).

In the facts and circumstances of the case, as the plaintiff's son P.W. 1 Sriram has explained the reason for non-examination of the plaintiff and the defendant having admitted the same, in his cross-examination, I am of the view that mere non-examination of the plaintiff will not lead to drawing up adverse inference so as to lead to dismissal of the suit.

For reasons stated above, I do not find any merit in the appeal and it is dismissed with no order as to costs. Counsel's fee as per schedule, if certified.