Rajasthan High Court - Jodhpur

Mohd Rustom vs Nawab Khan (2023:Rj-Jd:35304) on 22 September, 2023

Bench: Nupur Bhati

[2023:RJ-JD:35304]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 7174/2019

Mohd Rustom S/o Shri Ameen Khan, Aged About 60 Years, By Caste- Pathan Muslim, Resident Of Desuri, Main Chouraha, Tehsil- Desuri, District- Pali. At Presently Residing At Kha-6, Majidawali Gali, Tagore Nagar, Pali.

----Petitioner Versus

1. Nawab Khan S/o Shri Sher Khan, By Caste- Muslim, Resident Of Rotelao Chouraha, Tehsil- Desuri, District- Pali.

2. Nayaj Mohammad S/o Shri Sher Khan,, By Caste- Muslim, Resident Of Rotelao Chouraha, Tehsil- Desuri, District- Pali.

                                                                   ----Respondents


For Petitioner(s)            :    R.C. Joshi
For Respondent(s)            :    Mr. Devan Jain for
                                  Mr. Rajesh Parihar, AGC



                 HON'BLE DR. JUSTICE NUPUR BHATI

                                   Judgment

22/09/2023

(1) The present writ petition has been filed under Article 226 of

the Constitution of India with the following prayers:-

"(i) the impugned order dated 13.03.2019 (Annex.8) passed by the learned Civil Judge, Desuri, District Pali in Suit No.58/2005 (Mohd Rustom V/s Nawab Khan & Ors.) of allowing the application of the Respondents for taking the documents on record may kindly be quashed and set aside."

(2) The brief facts of the case are that the petitioner-plaintiff

filed a suit before the learned Civil Judge (Junior Division), Desuri,

District Pali for eviction and possession of the rented shop situated

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at Rotelao Circle, Desuri, Pali. It was stated in the plaint that the

shop in question was given on rent to the respondent No.1-

defendant and a rent-deed was executed in the year 1999. The

rent of the shop was fixed for 11 months and thereafter the rent

period was to be extended as per the agreement.

(3) The petitioner-plaintiff thereafter sent a registered

information on 18.11.2004 informing the respondent No.1-

defendant that as the period of tenancy has been closed,

therefore, the possession of the shop be handed over. The

respondent No.1-defendant replied to the notice aforesaid on

26.11.2004 denying the averments and stated that the said shop

was not taken on rent from the petitioner-plaintiff and that the

shop was taken from respondent No.2 and, therefore, the suit was

filed for eviction and arrears of rent.

(4) The respondent No.1-defendant filed reply written statement

and denied all the averments to which the petitioner-plaintiff filed

rejoinder and submitted that both the defendants-respondents are

his tenants and even after the notice dated 02.05.2005 the

possession was not handed over to the petitioner-plaintiff.

(5) The learned trial Court, based on the pleadings of the parties

framed issues and the matter was placed for evidence of the

petitioner-plaintiff. When the matter was at the stage of evidence

respondents-defendants, the respondents-defendants moved an

application under Order 8 Rule 1A (3) of the Civil Procedure Code

(hereinafter referred to as CPC for short) for bringing on record

documents relating to Case No.42/2016, Tehsildar Desuri V/s

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Bharat Kumar & ors and some orders passed by the Sub Divisional

Officer, Desuri. The application was filed on 21.02.2018.

(6) The petitioner-plaintiff filed reply to the application. The

learned trial Court allowed the application vide order dated

13.03.2019 (Annex.8). Hence, being aggrieved by the order dated

13.03.2019 (Annex.8), the petitioner prefers this writ petition.

(7) Learned counsel for the petitioner submits that the learned

trial Court has committed serious error in allowing the application

of the respondents-defendants and that too after the evidence of

the petitioner-plaintiff. The suit was filed in the year 2005 and the

application was moved on 27.05.2017. But, the learned trial

Court, in an absolutely illegal, unjust and arbitrary manner,

allowed the application.

(8) Learned counsel for the petitioner also submits that the

respondents-defendants moved the application for bringing on

record the order dated 27.05.2017 in regard to the land where the

suit shop is situated. The petitioner-plaintiff, while submitting

reply to the said application, categorically mentioned that the said

order dated 27.05.2017 was passed ex-parte on an application

filed by the Tehsildar, Desuri under Section 177 of the Rajasthan

Tenancy Act and the said order has been challenged by the

effected parties by way of review petition and the Sub Divisional

Officer has stayed the order dated 27.05.2017 vide order dated

06.02.2018 but the respondents-defendants have concealed the

said fact. The learned trial Court did not consider this aspect of

the matter and thus, has committed grave error of facts.

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(9) The learned counsel for the petitioner-plaintiff further

submits that the order dated 27.05.2017 sought to be brought on

record is with regard to whole Khasra No.1392, whereas the suit is

in regard to tenancy of a shop and the said order has nothing to

do with the present controversy. The issue before the learned trial

Court is not with regard to ownership of the shop. The learned

trial Court, without considering all these aspects of the matter, has

allowed the application erroneously.

(10) Per contra, learned counsel for the respondents-defendants

supported the impugned order and submitted that the documents

sought to be produced go to the root of the matter and are the

most relevant to decide the controversy in question in proper

manner and the learned trial Court has rightly taken the same on

record.

(11) Heard learned counsel for the parties and perused the

material available on record.

(12) This Court finds that the respondent had preferred an

application under Order 8 Rule 1 A(3) CPC for taking the order

dated 27.05.2017 passed by the SDO, Desuri on record, however,

the said order is in respect to the whole Khasra No.1392 and the

suit for eviction was filed by the petitioner-plaintiff only in respect

of the shop in-question, which is situated in the same Khasra, thus

the said document cannot be said to be a relevant document for

adjudication of the eviction suit filed by the petitioner. Order 8

Rule 1 CPC reads as follows:-

ORDER VIII [Written statement, set-off and counter- claim]

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[1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.-- (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.

(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.] (4) Nothing in this rule shall apply to documents--

(a) produced for the cross-examination of the plaintiff's witnesses, or

(b) handed over to a witness merely to refresh his memory.] (13) This Court also finds that as per the provisions laid down

under Order 8 Rule 1A CPC, it is obligatory upon the respondent-

defendant to show before the court that such document is

necessary in support of his defence. However, the respondent-

defendant in the present case has failed to show necessity of the

document, which is required for adjudication of the suit for

eviction.

(14) This Court further observes that the suit below is at the

stage of recording evidence of the respondent-defendant and the

issues have already been framed by the Court below and if the

said document is taken on record, it will definitely cause delay in