Mahajan vs Unknown
2021 Latest Caselaw 3820 HP

            IN      THE       HIGH       COURT OF           HIMACHAL                PRADESH,
                                                SHIMLA
                           ON THE 11th DAY OF AUGUST, 2021




                                                                                .
                                                BEFORE





                      HON'BLE MR. JUSTICE AJAY MOHAN GOEL

    CiVil Misc. Petition Main (Original) No.263 of 2020





    Between:

    SH.   ASHWANI    KUMAR





    MAHAJAN, SON OF LATE
    SHRI SOM DUTT, RESIDENT
    OF WARD NO.2, NURPUR,
    TEHSIL NURPUR, DISTRICT
    KANGRA, H.P.
                            r                                  ....PETITIONER/TENANT.

    (BY SH. SANJAY JASWAL, ADVOCATE)

    AND


    RAJIV MAHAJAN, SON OF
    LATE SHRI SOM DUTT,
    RESIDENT OF WARD NO.2,
    TEHSIL NURPUR, DISTRICT




    KANGRA, H.P.
                                                       ....RESPONDENTS/APPLICANT.





    (By. Sh. Mukul Sood, Advocate.)

    Whether approved for reporting?1 Yes





                 This Petition coming on for orders this day, the Court passed the following:

                                            JUDGMENT

By way of this petition, filed under Article 227 of the

Constitution of India, the petitioner/tenant assails order dated

Whether reporters of the local papers may be allowed to see the judgment?

06.02.2020, passed by learned Rent Controller-I, Nurpur, District

Kangra, H.P. in CMA No.72 of 2020, titled as Rajiv Mahajan Versus

.

Ashwani Kumar, filed in a Rent Petition No.02 of 2016, vide which an

application moved under Order 8, Rule 1-A (3) of the Code of Civil

Procedure by the present petitioner, stood dismissed by the learned

Rent Controller.

2. I have heard learned counsel for the parties and have

gone through the documents appended with the petition including

the impugned order.

3. Record demonstrates that the respondent/ landlord has

filed an application for eviction of the petitioner/tenant, under

Section 14 of the H.P. Urban Rent Control Act, 1987, inter alia, on the

grounds of cease to occupy and also causing material impairment to

the value of utility of the Bills. The eviction petition was filed in the

year 2016.

4. After recording of the evidence of the landlord, despite

numerous opportunities being availed by the tenant to conclude his

evidence, the same was not done, which lead to the learned Court

below to pass an order of closing the evidence of the tenant, on

29.07.2019.

5. Thereafter, an application stood filed by the tenant under

Order 8, Rule 1-A(3) of the Code of Civil Procedure (Annexure P-4),

with the prayer that the tenant be granted permission to place on

record the photographs of the shop as also the electricity bills of the

shop in dispute. It was mentioned in the application that the

.

documents intended to be placed on record could not be produced by

the applicant at the time of closing of evidence despite due diligence

and the documents otherwise were material for the adjudication of

the case and therefore, the same be taken on record.

6. The application was resisted by the landlord, inter alia,

on the ground that the tenant could not be permitted to place on

record the documents as he had failed to do the needful at the time of

leading evidence since 28.11.2017. It was also mentioned in the

response that the documents proposed to be placed on record were

not at all necessary for the adjudication of the case and the

application was filed with the sole intent of delaying the proceedings.

7. Vide order dated 06.02.2020, learned Rent Controller

dismissed the application. While passing the order it held that the

proposed documents were not produced by the tenant at the time of

filing of reply to the main petition or during the course of leading

evidence. It observed that the petition was pending since the year

2016 and the same was pending for recording evidence of the tenant

since 11.01.2018. Numerous opportunities were availed by the tenant

to conclude its evidence and ultimately the same had to be closed by

the order of the Court, on 29.07.2019. The electricity bill sought to be

produced on record pertained to the month of September, 2019. The

Rent Petition was, inter alia, filed on the ground that the tenant had

ceased to occupy the tenanted premises continuously for a period of

.

twelve months preceding the date of filing of the petition. Therefore,

subsequent occupation of the tenanted premises would not have any

bearing on the rent petition. Learned Rent Controller further observed

that as far as photographs were concerned, it was not mentioned as

to on what date the same were taken and there was nothing to justify

as to why the same could not be placed on record earlier by the

tenant. Learned Rent Controller observed that the tenant cannot be

allowed to reopen the trial by granting him opportunity to place on

record the documents, prayed for, after ample opportunity stood

granted to the tenant to conclude his evidence. On these basis,

learned Rent Controller dismissed the case.

8. In my considered view, there is no infirmity in the order

passed by the learned Rent Controller, which stands impugned by

way of this petition. It is not in dispute that the eviction proceedings

were initiated against the petitioner in the year 2016. It is also not in

dispute that the matter was kept pending for a long time for recording

and concluding the evidence of the tenant and during said period no

endeavour or effort was made by the tenant to place on record the

documents which were now intended to be placed on record by way of

application, which stood dismissed by the learned Rent Controller.

9. Order 8, Rule 1-A(3) of the Code of Civil Procedure, inter

alia, envisages that where defendant basis his evidence upon a

.

document or relies upon a document in his possession or power in

support of his defence etc., he shall enter such document in evidence

and produce in the court when the written statement is filed. Order 8,

Rule 1-A(3) of the Code of Civil Procedure further provides that the

document which ought to be produced in the Court by the defendant

under Order 8, Rule 1-A of the Code of Civil Procedure, but is not

produced, shall not without the leave of the Court, be received in

evidence on his behalf at the hearing of the suit.

10. Admittedly, the documents in issue were not placed on

record by the tenant at the time when he filed his response to the

eviction proceedings or during the course of leading evidence. Why so,

is not spelled out from the averments contained in the application

filed under Order 8, Rule 1-A(3) of the Code of Civil Procedure. All

that is mentioned in this application is that the documents could not

be placed on record despite exercising due diligence.

11. In the considered view of the Court, the provisions of

Order 8, Rule 1-A(3) of the Code of Civil Procedure are not to condone

the acts of omissions of the defendant nor the intent of the said

provision is to allow the defendant to fill up lacunae in the case. The

powers conferred upon the Court under the said provision are to be

exercised diligently where the Court is satisfied that despite due

diligence, the documents could not be placed on record by the

defendant and the same is otherwise necessary for deciding the lis

.

between the parties.

12. In this case, petitioner has failed to demonstrate that

despite due diligence he could not have had produced said

documents on record earlier. Besides this, as has been rightly pointed

out by the learned Rent Controller, otherwise also the documents

intended to be placed on record do not further the cause of the tenant

as admittedly the electricity bill sought to be placed on record

pertains to the year 2019, whereas the petition seeking eviction of

the tenant on the ground of cease to occupy has been filed in the year

2016. The findings returned by the learned Rent Controller with

regard to the photographs that the same were undated etc., are also a

matter of record.

13. Otherwise also, in exercise of powers conferred under

Article 227 of the Constitution of India, this Court is not to ordinarily

interfere with the orders passed by learned Court below, if the view

taken by the Court is one of the views possible on the basis of

pleadings and evidence before it. The interference can be only in the

cases of perversity. The impugned order herein, in the considered

view of the Court does not suffers from any perversity and the view

which has been taken by the learned Rent Controller is one of the

views possible on the basis of averments contained in the application

filed under Order 8, Rule 1-A(3) of the Code of Civil Procedure as well

as reply on record.

.

14. Accordingly, as this Court does not finds any merit in the

present petition, the same is dismissed. Parties are directed to appear

before the learned Rent Controller on 13.09.2021. Interim order, if

any, stands vacated.

    August 11, 2021                                   (Ajay Mohan Goel)
          (rishi)                                            Judge