Delhi High Court
Joginder Singh vs Amar Nath Gupta on 1 October, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1449/2011
Date of Decision: 01.10.2012
JOGINDER SINGH ...... Petitioner
Through: Mr. Sanjeet Kr.Thakur, Adv.
with Mr.M.K.Gahlot, Adv.
Versus
AMAR NATH GUPTA ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition under Article 227 of the Constitution is directed
against the order dated 29.11.2011 of Sr.Civil Judge-cum-Rent
Controller, North West.
2. The petitioner was the tenant under the respondent in respect of
an office space on the ground floor of premises C-6, Wazirpur
Industrial Area. The respondent filed eviction petition against them
under Section 14(1)(a) (c) & (k) of the Delhi Rent Control Act (for
short the 'Act'). The respondent (plaintiff in the suit) examined
himself as his witness and tendered the documents Ex.PW1/1 to 11 on
26.05.2010. He was cross examined by the petitioner on 17.10.2011.
On 29.11.2011, one PW2, summoned as a witness from the DDA
(Delhi Development Authority), was present along with the summoned
record. He was examined as PW2. In his examination, he had proved
a notice dated 17.11.1993.
3. In the instant petition, the grievance of the petitioner as set out
was that this notice dated 17.11.1993 was neither summoned, nor it
was pleaded by the respondent in the eviction petition and thus, could
not be proved from the testimony of PW2. In the instant petition, an
application was also filed by the petitioner challenging the proceedings
dated 26.5.2010 when the statement of the respondent was recorded
and in his statement, an inspection note of DVB (Delhi Vidhyut Board)
was allowed to be proved. The grievance of the petitioner, in this
regard, is also that the inspection note was neither summoned nor it
was in the pleadings of the eviction petition, and thus, could not be
allowed to be proved by the respondent in his statement.
4. I have heard learned counsel for the petitioner and perused the
record including the impugned order.
5. It is noted that one of the grounds for eviction was that the
petitioner has misused the tenanted premises, without obtaining the
consent in writing of the respondent/landlord and had changed the
nature of the tenanted premises by starting the business of
manufacturing and motor binding, as against the user thereof for the
office purposes. It is trite that the evidence that is to be led by the
parties need not form part of the pleadings, and that the evidence can
be led by the parties in support of their pleadings. The allegations
being that of the misuse of the premises from office to manufacturing
and motor binding without consent, the evidence that was led by the
respondent in his own statement and that of PW2, apparently appears
to be just and relevant.
6. There is no dispute with regard to the proposition that as per
Order 7 Rule 14 CPC, where a plaintiff sues upon a document or relies
upon documents in his possession or power in support of his claim, he
shall enter such documents in a list, and shall produce them along with
the plaint, and also to supply the copies thereof to the opposite party.
However, this proposition would be only where the suit is filed upon a
document or the document relied upon in the power and possession of
plaintiff. In the instant case, neither the inspection report of DVB of
the inspection conducted by it of the premises, nor the notice dated
17.11.1993 of DDA, were in possession and power of the
respondent/plaintiff. The case of the respondent was not based on
these documents per se. That being so, the Order 7 Rule 14 CPC was
not attracted.
7. The provisions regarding recording of evidence are contained in
Order 18 Rule 4 CPC, which provide that the evidence can be led by
way of affidavit, by supplying copy thereof to the opposite party. It
also provides that where the documents are filed and the party relies
upon the documents, the proof and admissibility of such documents,
which are filed along with the affidavit, shall be subject to the order of
the court. There is no bar in filing the documents along with the
affidavit of evidence. However, the admissibility thereof is to be
decided by the court as per the provisions contained in Order 13 Rule 4
CPC. It cannot be said that the documents which are not produced
along with the plaint, cannot be allowed to be produced along with the
affidavit of evidence. On the contrary, the Order 18 Rule 4 CPC
provides for submission of documents, if any, relied upon, along with
the affidavit.
8. The examination of respondent was conducted on 26.5.2010
when he filed an affidavit of evidence and the copy thereof was
supplied to the petitioner, at whose request, the remaining cross
examination was deferred. After few adjournments at the instance of
the petitioner, his cross examination came to be closed on 17.10.2011.
I do not see any infirmity or illegality in recording of the evidence of
the respondent by the learned Rent Controller. An application had
been filed by the respondent on 19.10.2011 for summoning the DDA
and NDPL (successor of DVB) officials for production of the record of
DDA and that of the DVB, including the inspection report. PW2, an
official of DDA was examined on 29.11.2011. The notice dated
17.11.1993 was nothing, but forming part of the record, which was
summoned from the DDA. This notice dated 17.11.1993 and the
inspection report of DVB are the public documents and formed part of
the official records. Proving of this notice dated 17.11.1993 in the
testimony of PW2, an official of DDA, as also the proving of the
inspection report by the respondent/plaintiff, by any means, cannot be
said to have caused prejudice to the petitioner. On the other hand, both
these documents are seen to be relevant and necessary for the just
decision of the case. I do not see any infirmity or impropriety in the
impugned order. The petition is nothing but a frivolous one and is
accordingly dismissed with cost of Rs. 5000/- to be deposited with
Delhi High Court Legal Services Committee.
M.L. MEHTA, J.
OCTOBER 01, 2012
akb
