Jugmender Dass Dhan Kanwar And ... vs Taley Ram And Anr.
1987 Latest Caselaw 95 Del

JUDGMENT

Leila Seth, J.

(1) This is an appeal against the order dated 5th July, 1986, passed by Mr. M.A. Khan, Rent Control Tribunal, affirming the order dated 18th March, 1986, of Mr. A.K.Garg, Additional Rent Controller. By the said order the evidence of the appellants was closed.

(2) The main contention of counsel for the appellants is that a. litigant should not suffer for the mistake of the officials of the court in the performance of their duties.

(3) The facts are briefly set out. The respondent, Mr. Taley Ram filed a petition praying that the appellants be evicted under the provision of section 14(l)(a) and (b) of the Delhi Rent Control Act, 1958. On 9th September, 1985, the trial court closed the evidence of the appellants. The appellants preferred an appeal against this order to the Rent Control Tribunal. Thereafter, on 11th December, 1985, before the Rent Control Tribunal, the respondent agreed to the appellants being permitted to examine certain witnesses. The Rent Control Tribunal while disposing of the appeal, directed the trial Court to fix a date for recording the evidence of the appellants. The relevant portion of the order is read as follows : "TODAY the respondent has made a statement before this court that he has no objection if the appeal is allowed and appellant is directed to produce his entire evidence on date and he produces the witnesses at his responsibility or get them served dusty. The learned counsel for the appellant has submitted that the appellant would get the summons of the officials of Post and Telegraphs Office, record room of the court, the Municipal Corporation of Delhi, Sales Tax Office, D.E.S.U. and Shri Umesh Chand Advocate, local commissioner served dusty and he would produce the remaining witnesses namely Roshan Lal, Dr. Dinesh Dutt, Suresh Dutt and Manohar Lal at his own responsibility. He has submitted that he would not produce any other witness. The respondent has no objection if these witnesses are allowed to be produced. "Having regard to this, the appeal is allowed and the impugned order dated 9.9.1985 is set aside. The learned Controller shall fix a date for recording the evidence of the appellant. The appellant shall get the official witnesses of the post office, record room Municipal Corporation, D.E.S.U., Sales Tax Office, local commissioner Shri Umesh Chand Advocate served dusty for that date and he would produce the remaining witnesses namely Roshan Lal, Dr. Dinesh Dutt, Suresh Dutt, and Manohar Lal at his own responsibility. In case any of the official witnesses or the local commissioner is not served for that date fixed, the appellant shall not be entitled to summon the said witness again. Nonofficial witnesses if not produced on the date fixed by the Controller, will be deemed to have been given up. In case the evidence of the appellant is not over on the date so fixed, the learned Controller may fix another date to conclude the evidence. But the appellant will not get any other opportunity to produce the evidence. The parties are directed to appear before the trial court on 23-12-1985."

(4) As per the directions of the Rent Control Tribunal the parties appeared through their counsel before the trial court on 24th December, 1985 when the following order was passed: "PRESENT: Counsel for parties. Put up on 18-3-86 for evidence of respondent in terms of the order of Rct dated 11-12-85. In case some witness produced on the said date remain unexamined he will be examined on 19-3-86."

(5) In consequence of the order dated 11th December, 1985, of the Rent Control Tribunal, the appellants filed an application on 24th January, 1986 for summoning the witnesses. The official witnesses mentioned in the said application were, 1.(a) a record keeper of the Municipal Corporation of Delhi, (b) a clerk from the office of the Assistant Revenue Officer (Water), (c) Mr. Chander Mohan Vij, Overseer from the Building Department, and (d) a clerk from the House-tax Department with the relevant records as detailed therein.

(6) Four non-official witnesses were also mentioned in the said application at serial No. 2 to 5.

(7) On 24 January, 1986, itself, the court passed the following order on the said application : "DIET money Rs. 40.00 be deposited with the Civil Nazir. The Witnesses summoned on process-fee. Summons be given dusty. Witnesses No. 2 to 5 be summoned dusty and will be paid on the spot as prayed.".

(8) A clerk of the House-tax Department i.e. witness indicated at serial No. l(d) of the application dated 24th January, 1986 was served with the summons and he appeared on 18th March, 1986. Counsel for the appellants made a statement that he was giving up the said witness but wanted to examine the other three witnesses who had not been served.

(9) The service report indicated that the witness at serial No. 1 (c), Mr. Chander Mohan Vij, could not be served as his complete address had not been be given. This is clearly the fault of the appellants is not supplying the address and they cannot be given another chance to do so.

(10) With regard to the other two witneses at serial l(a) and (b) the report of the process-server indicated that they could not be served as the diet money of Rs. 10.00 given to the process-server had been handed over to the clerk of the Municipal Corporation of Delhi i.e. witness at serial No. l(d) and no money was left for these witnesses.

(11) In the present case, it is not disputed that the appellants had infact deposited a sum of Rs. 40.00 i.e. Rs. 10.00 for each of the official witnesses with the Civil Nazir. However, it appears that inadvertently the official of the Nazarat had not handed over the entire diet money to the process-server and had handed over only Rs. 10.00 .

(12) It is, therefore, apparent that the appellants cannot be penalized for the mistake of the Nazarat in not handling over the diet money to the process- server. As far as the appellants are concerned, they took all necessary steps for the production of these two official witnesses and it is clear that they should be given another chance to examine these two witnesses, despite the fact that order of 11th December 1985 indicates that "in case any of the official witnesses or the local commissioner is not served for the date fixed, the appellants shall not be entitled to summon the said witness again. The official witness, if not produced on the date fixed by the Controller will be deemed to have been given up."

(13) The Local Commissioner was admittedly not summoned and no grievance is being made about this.

(14) I therefore, hold that the appellants are entitled to summon the two witnesses, namely, the record keeper of the Municipal Corporation of Delhi as mentioned at serial No. 1 (a) and clerk, from the office of the Assistant Revenue Officer (Water) as mentioned at serial No. 1 (b). It is, however, made absolutely clear that this is the last and final opportunity being given to the appellants. It will be entirely their responsibility to get these two witnesses served and produced in court on the date fixed by the Additional Rent Controller. The matter has been pending since 1978 and it is high time that it is disposed of.

(15) With regard to the non-official witnesses mentioned in the said application dated 24th January, 1986, at serial No. 2 to 5, counsel has contended that the appellants could not produce them as appellant No. 2 was seriously ill and suffering from "cancer prostorate."

(16) The appellants filed an application on 18th March, 1986 stating that the High Court had allowed them to move and application under Order Xiii Rule 2, Civil Procedure Code to file Certificate documents. Since they wanted to move the application after examining the order of the High Court they sought time for making this application and requested for an adjournment. The Additional Rent Controller rejected this application on 18th March, 1986 itself and also closed the evidence of the appellants.

(17) In the said application the appellants mentioned a document that is a certified copy of a photostat copy of the agency agreement dated 13th January, 1969. This is the subject matter of Sao 348/86 in which I have just made an order permitting the document to be filed in view of the fact that the original has been produced in Court before me.

(18) In the application filed on 18th March, 1986 there is no mention as to why the non-official witnesses at serial 2 to 5 of the application dated 24th January, 1986 have not been produced in court when it was the entire responsibility of the appellant to produce them.

(19) In this connection, Mr. A.K. Garg, Additional Rent Controller has observed, "no witness is present. None has been served. The evidence of respondent, therefore, stands closed in terms of the order of the learned Rct dated 11-12-85."

(20) It would, therefore, appear to me that the appellants arc not entitled to get another opportunity to produce the non-official witnesses. As it had been made specifically clear to them and has, in fact, been so recorded in the order that these witnesses would be produced at their own responsibility. Further through three of these witnesses i.e. serial No. 2, 3 and 5, all reside at Naya Bans, Delhi, the number of their residence at Naya Bans has not been mentioned in the application. With regard to witness at serial No. 4, Roshan Lal, apart from his name, no address has been given.

(21) In this view of the matter, the appeal is allowed to the limited extent that the witness at serial No. I (a) and (b) of the said application of 24th January 1986 will be produced by the appellants at their own responsibility on the date fixed by the Additional Rent Controller. It is also made clear that if the said witnesses are not present on the date fixed, the evidence of the appellants will be deemed to be closed. There will be no order as to costs.

(22) Since I have already passed an order in S.A.O. 348/86, exhibiting the agency agreement dated 12th January, 1969 and directing the parties to appear before the Additional Rent Controller, on 2nd March, 1987. I direct them to do so with regard to this matter also.

(23) The record which is common should be sent back forthwith.