Ashia Begum vs Kazim Ali Khan And Anr.
1987 Latest Caselaw 278 Del

JUDGMENT

Sunanda Bhandare, J.

(1) Respondent No. 1 herein filed a petition for eviction against the petitioner under Section 14(1)(e) read with Section 25-B of the Delhi Rent Control Act which is being tried by the Additional Rent Controller, Delhi. After the petitioner filed her written statement and respondent no. 1 filed his replication, the petitioner filed an application under Order 18, Rule 17-A read with Section 151 of the Code of Civil Procedure seeking liberty to examine certain witnesses and production of certain documents including the original record of Suit No. 166 of 1970. The Additional Rent Controller vide his order dated 29/04/1986 dismissed this application of the petitioner and aggrieved by that order, the petitioner filed a petition under Article 227 of the Constitution of India being C.M.(M) 184 of 1986. This Court on a concession made by the respondent herein allowed the petition and directed as follows :- "IN the result the petition is allowed and the order dated 2 9/04/1986 is set aside. The Additional Rent Controller is directed to give further opportunity to the petitioner to adduce further evidences prayed by her in her application under Order 18, Rule 17A already filed in court on 19/03/1986 and allow her to file documents mentioned in the application in court within three months from today. The Additional Rent Controller is further directed to dispose of the main eviction petition within six months. Parties will appear before the Additional Rent Controller on 24/11/1986, the date already fixed on which date the Additional Rent Controller will fix the new time table for evidence and argumentsetc."

(2) Therefore, when the case came up before the Additional Rent Controller on remand, the petitioner be rein filed an application for summoning certainwitnesses. One of the witnesses was to produce the original record of SuitNo. 166 of 1970 Gosh no. 241/City Doc 29.11.72 by Shri R.L. Gupta,Sub Judge, Delhi. On 23/12/1986 when the clerk of the Record Room appeared before the Additional Rent Controller, Delhi he stated that the summoned record was not available and an inquiry was being made bySmt. Aruna Suresh, Commercial Sub Judge, Delhi in connection with the reconstruction of the said record and, therefore, he could not produce the summoned file. Since the record was not available, none of the witnesses mentioned in the application could be examined. The case was postponed time and again for this purpose; however ultimately on 3/03/1987,the Additional Rent Controller closed the evidence of the petitioner observing that since this Court had directed the evidence to be completed within three months and dispose of the case within six months, no further time could be given to the petitioner on the ground of non-availability of recordand, therefore, closed the evidence. It is this order of the Additional Rent Controller Delhi dated 3/03/1987 which has been challenged by the petitioner in this petition under Article 227 of the Constitution of India.

(3) Notice to show cause was issued to the respondent on this petition and at the hearing of the case, the very relevancy of this record was challenged by respondent no. 1. In any event, since the petitioner was given liberty to adduce additional evidence without any restriction by a previous order of this Court dated 12/11/1986, the only restriction being regardingtime, a further report was asked for by me from Smt. Aruna Suresh, Commercial Sub Judge, Delhi whether the record can at all be re-constructed and made available to the petitioner in the present case. A report has now been received from Smt. Aruna Suresh, Commercial Sub Judge, Delhi who was in charge for the re-construction of the record that for the reasons stated in the report, it is not possible to re-construct the record.

(4) The short question to be decided now is whether the order of the Additional Rent Controller, Delhi dated 3/03/1987 closing the evidence of the petitioner can be sustained. For this purpose, it is necessary to decide whether the petitioner should be given permission to lead secondary evidence because the record in the suit referred to hereinabove is not available.

(5) Having considered the rival contentions of the learned counsel for the parties, I am of the opinion that since while deciding C.M.(M)184of 1986 this Court did not consider the question whether this record was at all relevant or not and the Additional Rent Controller, Delhi in his orderdated 29.4.1986 had also not considered that question, whether the petitioner should be permitted to lead secondary evident because of the non-availability of the record, will have to be first decided by the Additional Rent Controller. If the Additional Rent Controller comes to a conclusion that the record was not necessary at all, no further opportunity need be given to the petitioner to adduce any further evidence, however if the Additional Rent Controller comes to a conclusion that the record which was summoned by the Petitioner was necessary to prove the case of the petitioner, he may further consider whether secondary evidence should be permitted to be led. Since the matter has twice before been directed to be disposed of within a specified time by this Court. I think it is in the interest of justice that this question be decided by the Additional Rent Controller as expeditiously as possible and dispose of the whole suit within one year from today. The parties will appear before the Additional Rent Controller on 18/05/1987 for further proceedings.

(6) In the above terms the petition is disposed of. No costs.