K.C. Paul vs Inder Mohan Baquaya And Anr.
1989 Latest Caselaw 449 Del

JUDGMENT

Mahesh Chandra, J.

(1) This petition has been filed under Article 227 of the Constitution of India against the order dated 1st August, 1988 whereby application under Order 13 rule 2 Civil Procedure Code filed by the petitioner-tenant was dismissed. I have heard the learned counsel for the parties and have gone through the record and after giving my considered thought to the matter before me, I have come to the following finding.

(2) Facts giving rise to this petition are that the respondent- landlord had filed an eviction petition under Section 14(1)(e) read with Section 25B of the Delhi Rent Control Act on 18th March, 1985 against the petitioner and an application for leave to defend the petition was field on 21st May. 1985 by the petitioner- tenant in which a plea was raised by him that the premises had been let out for residential cum-commercial purposes. In course of time leave to defend was granted on 15th October, 1985 and consequently written statement was filed on 29th January, 1987 and the case was adjourned on 22nd April, 1987 to 10th August, 1987 for eviednce. On 10th August, 1987 some witnesses on behalf of the respondent-landlord were examined but they could not be cross-examined and it was thereafter that an application under Order 13 rule 2 Civil Procedure Code was moved on 29th October, 1987 by he petitioner-tenant which was opposed and which came to be dismissed on 1st August, 1988 by the Additional Rent Controller. Admittedly no list of documents or reliance was filed by the petitioner-tenant. The documents sought to be produced are stated to be certified copies of letter received by the petitioner-tenant at the address of the premises in dispute which letters would indicate that the premises in dispute were being used for commercial purposes as well. It has further been submitted by the learned counsel for the petitioner-tenant that application under Order 13 rule 2 Civil Procedure Code had been moved with expedition and in any event without much delay and before the evidence of the landlord-respondent had been completed and the evidence of the petitioner-tenant has not yet started.

(3) As against these submissions of the learned counsel for the petitioner-tenant it has been submitted by Mr. Raina, learned counsel for the respondent-landlord that even though the eviction petition had been filed as far back as 18th March, 1985, the petitioner-tenant was delaying its disposal on one pretext or the other and had come with an application under Order 13, rule 2 Cpc to further delay the disposal of the petition. There is no denying fact that the petition had been pending since 1985 but the tenant could contest the petition only after he had been granted permission to leave to defend and consequently this sort of delay is inherent in such a procedure. It also cannot be said that after the completion of pleadings and after fixation of the date of respondent-landlord's evidence the application was moved at grossly delayed stage. It is dear from the dates given above that the application under Order 13, rule 2 Civil Procedure Code have been moved before the evidence of the respondent-landlord had been completed. Obviously it had been moved before the evidence of the petitioner-tenant has started even. In these circumstances interest of justice would demand that the permission to produce the documents was granted subject to payment of costs. Costs are a panacea in such like situation, more so, when no adjournment would have been necessitated, if the application of the petitioner- tenant had been allowed by the trial court. It is a different thing that heavy burden would lie at the door of the petitioner- tenant to prove that the premises were let out for residential-cum- commercial purposes in the face of order dated 8th April, 1981 passed under Section 21 of the Delhi Rent Control Act. Nonetheless it would not be appropriate to shut the evidence of the petitioner-tenant, more so, when at the first opportunity the petitioner-tenant had come out with his plea of the premises being used for residential-cum-commercial purposes. Considering all these aspects I am inclined to allow this petition.

(4) My attention has been drawn by the learned counsel for the petitioner to Order 13, Rule 1 Civil Procedure Code which enjoins upon the parties to produce all documentary evidence of every description in their possession and power on which they intend to reply at or before the settlement of issues. However, the proceedings before the Additional Rent Controller were of a summary nature and no formal issues were required to be framed and consequently Order 13, rule 1 Civil Procedure Code did not come into play and that being the position the bar under Order 13, rule 2 Civil Procedure Code would also not operate against the petitioner-tenant and it was open to the petitioner- tenant to produce these documents at the time of producing his evidence. However, even in such a situation the documents should ordinarily be filed with the written statement and this does not dispense with compliance in spirit of Order 13, rule 1 Civil Procedure Code Be it as it may, the application of the petitioner filed under Order 13, rule 2 Civil Procedure Code was not very belated and the respondent- landlord could be compensated with costs. It was not proper to shut out this evidence of the petitioner-tenant more so, when it is not irrelevant.

(5) I have considered this matter from yet another angle that relates to the reason that these documents could not be produced earlier. Submission of the learned counsel for the petitioner- tenant is that the petitioner had shifted his commercial activity to another place from the premises in dispute and in process of shifting original documents have been lost with the result that he had, had to obtain copies which took some time and consequently he could not file the same when he filed his written statement.

(6) Considering the totality of the circumstances this petition & allowed and the impugned order is set aside and the application under Order 13, rule 2 Civil Procedure Code is granted subject to payment of Rs. 500 as conditional costs. Learned counsel for the petitioner have stated that the documents are on record and if it is not so the same will be placed on record of the lower court within two weeks here and parties are directed to appear before the trial court on 11th September, 1989 when costs would be paid by the petitioner-tenant. The lower court is directed to expedite the disposal of this matter. No order as to costs.