Delhi High Court
Bhagwant Singh Decd. Thr. Lrs. vs Gurcharan Kaur & Anr. on 20 August, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 1184/2010 &CM No. 16527/2010 (stay)
% 20th August, 2014
BHAGWANT SINGH DECD. THR. LRS. ......Petitioner
Through: Mr. Ram Niwas, Advocate.
VERSUS
GURCHARAN KAUR & ANR. ...... Respondents
Through: Mr. S.C.Singhal, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? (Yes)
VALMIKI J. MEHTA, J (ORAL)
1. This petition under Article 227 of the Constitution of India
impugns the order of the first appellate court dated 12.7.2010 by which the
first appellate court has allowed the application filed by the
respondents/landlord (petitioner in the eviction petition) for appointment of a
local commissioner/expert/architect for reporting the position of construction
in the tenanted premises. The subject eviction petition is a petition under
Section 14(1)(j) of the Delhi Rent Control Act, 1958 (in short 'the Act') and
which provides that a tenant who makes unauthorized additions and
alternations to a tenanted premises will be liable to be evicted when the
CMM 1184/2010 Page 1 of 7
unauthorized additions and alternations cause substantial damage to the
premises. The provision of Section 14(1)(j) of the Act has to be read with
the provision of Section 14(10) of the Act which states that eviction is not
ordered if a tenant repairs the damage caused to the tenanted premises to the
satisfaction of the Controller or pays to the landlord such amount of
compensation as the Controller may direct.
2. Before I advert to the facts of the present case, it is necessary to
state that the powers under Article 227 of the Constitution of India are
discretionary powers. These discretionary powers are not exercised even if
the impugned order is in some manner not strictly legal, once, there is no
injustice which is being caused by the impugned order. Putting it
differently, discretionary powers under Article 227 of the Constitution of
India are not exercised if by exercising these powers injustice will be caused.
3. The main thrust on behalf of the petitioner/tenant for
challenging the impugned order is that a local commissioner/expert/architect
could not be appointed at the stage of final arguments because it would
allow a person/respondents/landlord to fill up the lacunae in his case. It is
also argued that local commissioners are not appointed by courts to collect
evidence for the parties. Reliance is placed for the argument that local
commissioners are not appointed to collect evidence for the parties on the
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judgments in the cases of Ghani Mohammad Vs. Jamaluddin and Others
29 (1986)DLT 497; Sanjay Namdeo Khandare Vs. Sahebrao Kachru
Khandare and Ors. 2001 (3) Civil Court Cases 303 (Bombay) and Ram
Kishan Taparia Vs. Shyamlal & Ors. 2000 (2) Civil Court Cases 199
(Rajasthan). In support of the arguments that an application for
appointment of a local commissioner cannot be allowed because of delay in
filing the same at the stage of final arguments and for filling up lacunae in
evidence, reliance is placed upon the judgments in the cases of B.S.Nazir
Hassan Khan Vs. Aswathanarayana Rao and others AIR 2004
KARNATAKA 92 and Tulamaya Chettri and another Vs. Yonarayan
Pradhan and others AIR 2004 SIKKIM 39 .
4. Per contra counsel for the respondents/landlord argues that
once both the parties have led evidence and there is ambiguity with respect
to existence or otherwise of substantial damages in the tenanted premises,
then in such a position, in fact even an appellate court could have permitted
leading of evidence under Order 41 Rule 27 of Code of Civil Procedure,
1908 (CPC). Learned counsel for the respondents/landlord also places
reliance upon the Order 18 Rule 18 CPC which provides that the court can
"at any stage" inspect a premises. Reliance is also placed upon a provision
of Section 165 of the Evidence Act, 1872 which entitles a court to
CMM 1184/2010 Page 3 of 7
seek production of a document at any stage.
5. In my opinion, no doubt, it is not usual for courts to allow
additional evidence at the stage of final arguments, however, it is not totally
unknown that courts do allow evidence even at the stage of final arguments.
Of course each case has to be examined as per its own facts and
circumstances so as to decide whether the trial court is justified to permit
leading of evidence even at the stage of final arguments.
6. In my opinion, the arguments urged on behalf of the
petitioner/tenant with respect to the local commissioner not being appointed
to collect evidence is misconceived for the reason that the observations made
in judgments with respect to local commissioner not being allowed to collect
evidence are observations which would be applicable when otherwise such
evidence can be brought on record in a court of law. Evidence pertaining to
peculiarities at the spot/site, and which is not such evidence which can be
led/brought in court, then in such cases, local commissioners are and can be
appointed to give their reports as to the position prevailing at the spot/site.
This is all the more so when the evidence which has to be reported upon viz
condition of a premises as such which is/was not in the control of the
respondent/landlord but was in access and control only of the opposite side
ie the petitioner/tenant. Therefore, it is not the law that local
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commissioner/expert/architect cannot be appointed to determine the status
and position with respect to existence of a construction at a
site/area/premises.
7. So far as the judgments cited that parties should not be allowed
to fill up lacunae in their cases and evidence should not have been led at the
stage of final arguments, no doubt there cannot be any quibble to such
proposition of law, however, as already observed above, it depends upon
facts of each case as to whether additional evidence ought or ought not to be
permitted at the stage of final arguments. Counsel for the
respondents/landlord is justified in contending that once evidence is led by
both the parties, and as per the evidence led by both the parties there would
be some ambiguity as to the existence of addition/alteration/construction and
consequently existence of substantial damages, then to remove this
ambiguity since even an appellate court could have suo moto exercised
powers in the interest of justice, then therefore surely the original court at
the stage of final arguments can always exercise such powers. Learned
counsel for the respondents/landlord is also right in placing reliance upon the
provision of Order 18 Rule 18 CPC which states that the court itself may
inspect a premises at any stage, and surely if a court wants to inspect a
premises, a nominee of a court who would be a local
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commissioner/expert/architect can be called upon to accompany a judge and
then as per the facts of a particular case prevailing at site, to give a report
with respect to a condition/status qua the construction existing in a premises.
8. In my opinion, the very fact that the petitioner is running away
and seeking to challenge the order appointing the architect/expert to report
the status of construction at the premises means that possibly the
petitioner/tenant may have something to conceal, and which aspect would go
against him. Therefore, in my opinion, such a stand which results in
concealment of actual facts should not be permitted by courts which are
courts of law, equity and justice. If the petitioner/tenant was so confident
that he has not done any substantial damages to the tenanted premises, there
ought to have been no hesitation on the part of the petitioner/tenant to
implement the impugned order, and therefore the very fact that challenge is
laid to an order which will only bring in the actual facts with respect to the
existence/condition of construction in the premises in control and possession
of the petitioner, shows that the petitioner is not acting bonafidely and
honestly.
9. I have already stated above that the powers under Article 227 of
the Constitution of India are discretionary and this Court is not bound to
interfere with the orders passed by the court below once no injustice results
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as a result of the impugned order. In my opinion, bringing in correct and
actual evidence will not cause injustice to anyone, but the same will in fact
assist the court in arriving at correct conclusion on the relevant issues in the
present case.
10. In view of the above, there is no merit in the petition and the
same is therefore dismissed, leaving the parties to bear their own costs.
AUGUST 20, 2014 VALMIKI J. MEHTA, J.
ib
