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1998 DIGILAW 90 (DEL)

SHIV CHARAN v. DEEP CHAND

1998-02-01

MANMOHAN SARIN

body1998
Manmohan Sarin, J. ( 1 ) THE petitioner-tenant by this Revision Petition assailsan order dated 16. 1. 1997, passed by Shri H. S. Sharma, Additional Rent Controller,delhi, directing the petitioner to produce his wife on the next date of hearing failingwhich an adverse inference would be drawn and it shall be presumed that thecomplaint dated 26. 2. 1991, bears the thumb impression of his wife. The physicalpresence has been directed so that the identity of petitioner s wife who has deniedmaking the complaint could be verified by the Investigation Officer. ( 2 ) FOR an appreciation of the matter in controversy the following facts givingrise to the present Civil Revision Petition may be noticed: (I) The respondent has filed an eviction petition against the petitioner-tenant under Section 25-B, of the Delhi Rent Control Act, 1958 on thegrounds of bonafide need, i. e. , undersection 14 (1 ) (e) of the Delhi Rentcontrol Act, 1958. The petitioner-tenant has filed his written statement and denied the relationship of landlord and tenant and respondent being the owner of the premises. (ii) The respondent relies on a complaint dated 26. 2. 1991, alleged to havebeen filed by the petitioner s wife. In the said complaint petitioner swife is alleged to have stated that the respondent had become theowner and had been collecting rent from her. Further that the rent wasbeing regularly paid. Grievance is made in the complaint againstthreat of dispossession of the petitioner and his wife. (iii) It appears that the respondent had summoned the said complaintfrom the police authorities and the same has been proved and givenexhibit No. AW. 2/2. Petitioner s wife has also been examined. Shedenied having made the complaint. (iv) The respondent at this stage moved an application under Section 30,c. P. C. read with Section 151 of the Civil Procedure Code for recallingthe petitioner s wife Smt. Kaushalya Devi. By this application, therespondent sought directions for the physical presence of Smt. Kaushalya so that he could examine Sub- Inspector, Surat Singh, whohad inquired into the complaint and recorded statement of petitioner swife. It was claimed that in order to pinpoint the identity of Smt. Kaushalya Devi, wife of the petitioner her physical presence wasrequired for being identified by S. I. Surat Singh. It was claimed that in order to pinpoint the identity of Smt. Kaushalya Devi, wife of the petitioner her physical presence wasrequired for being identified by S. I. Surat Singh. This prayer has beenallowed by the Additional Rent Controller, holding that the petitionershould have been fair enough to bring his wife himself to set thecontroversy at rest that the alleged complaint was not made by hiswife. He allowed the application and directed the petitioner toproduce Smt. Kaushalya Devi on the next date of hearing and on hisfailure to do so adverse inference would be drawn and it would bepresumed that the complaint carried the thumb impression ofpetitioner s wife. ( 3 ) I have heard the learned Counsel for the petitioner who has assailed thisimpugned order as being illegal and without jurisdiction. Learned Counsel hasargued that apart from the fact that the order for physical presence of the witness wasnot contemplated under Section 30 of Civil Procedure Code for the purpose of identification. Thepurpose of identification sought to be achieved was self defeating inasmuch as if thepetitioner s wife was asked to be present in Court Assistant Sub-Inspector, Suratsingh, who the petitioner claims is helping the respondent, would nave no difficultyin identifying her as being the only lady who was to be re-examined as a witness. Learned Counsel submits that there was no provision of identification of a witness. Even in case of identification of the accused, the procedure under Criminal Proce-dure Code is followed where the accused is required to be picked out from a similarnumber of persons, who have not been seen before. Learned Counsel for thepetitioner submitted that he would have no objection if an identification parade wasto be carried out. ( 4 ) IN my view it is not necessary to consider the petitioner s suggestion. Theprocedure followed before the Rent Controller is that of a Small Causes Court. Theimpugned direction is not contemplated under Section 30, Civil Procedure Code Besides recallinga witness under Order 18, Rule 17, Civil Procedure Code is also to enable the Court to put questionsand not for purpose of physical identification by another person/witness. Thecomplaint has been produced and exhibited before the Additional Rent Controllerex. AW-2/2. The petitioner s wife has also appeared and denied having madecomplaint Ex. AW. 2/2. She has been cross-examined. It was for the respondent tohave elicited admissions if any in cross-examination. Thecomplaint has been produced and exhibited before the Additional Rent Controllerex. AW-2/2. The petitioner s wife has also appeared and denied having madecomplaint Ex. AW. 2/2. She has been cross-examined. It was for the respondent tohave elicited admissions if any in cross-examination. The Additional Rent Controlleron the entire evidence available is to determine the existence of Landlord/tenantrelationship. Whether the complaint was executed and lodged by the petitioner swife or not, would at best be only one piece of evidence for determination of thelandlord/tenant relationship. In any case, it was open to the respondent to move theadditional Rent Controller for summoning the original record from the Policeauthorities and to have the same sent to CFSL for comparison with the admittedthumb impression of petitioner s wife in support of his contention that the complaintwas lodged by the petitioner s wife. The learned Additional Rent Controller itappears in his zeal and quest for finding out the truth and to do justice between theparties, followed procedure not permissible at law. Even otherwise, execution of adocument of 1991 being proved only on the basis of physical identification of theexecutant by an Assistant Sub-Inspector of Police, who receives numerous complaints daily in the normal course of his duties, could hardly be considered a reliableor satisfactory method. The impugned order accordingly suffers from materialirregularity and is hereby set aside.