Research › Search › Judgment

Himachal Pradesh High Court · body

2011 DIGILAW 2410 (HP)

Balbir Singh Sadana v. EIH Associated Hotels Ltd

2011-08-24

RAJIV SHARMA

body2011
Judgment Rajiv Sharma, Judge: This revision petition is directed against the orders dated 27.02.2009 and 21.04. 2009, passed by the learned Rent Controller(I), Shimla, H.P. in Case No. 64-2 of 2003. 2. Material facts necessary for the adjudication of this revision petition are that the respondent-landlord has sought the eviction of the petitioner-tenant on the grounds; firstly, that the premises, in question, are bonafide required for the purpose of carrying out repairs and for the purpose of rebuilding/reconstruction and making substantial additions and alterations, which cannot be carried out without the premises being vacated; and secondly on the ground that the premises in question are bonafide required by the respondent for use by its 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. employees after affecting the necessary repairs/additions and alterations and after rebuilding/reconstructing the same. 3. Petition was resisted by the petitioner-tenant. According to the petitioner-tenant, the building in question under his occupation was in perfectly good condition and did not require any rebuilding or any addition or alteration and the respondent-landlord has got sufficient accommodation for their employees. 4. Petitioner sought the services of an expert Engineer Vivek Karol, B.E. (Civil) for inspection of the building and premises in question and his opinion on the condition of the building. The expert visited the building on 27.12.2007 and prepared his report on 07.01.2008. Subsequently, the petitioner moved an application under Order 8 Rule 1-A (3) of the Code of Civil Procedure, seeking the permission of the learned Rent Controller to produce and prove the said report and accompanying documents. The application was allowed by the learned Rent Controller on 09.06.2008. The report was permitted to be taken on record with liberty to prove the same in accordance with law. Thereafter, the next date of recording the evidence was fixed for 07.08.2008 and thereafter for 25.09.2008 on self responsibility. The fact of the matter is that as per the pleadings, Shri Vivek Karol left Shimla permanently and, thus, he could not be examined. Thereafter, the next date of recording the evidence was fixed for 07.08.2008 and thereafter for 25.09.2008 on self responsibility. The fact of the matter is that as per the pleadings, Shri Vivek Karol left Shimla permanently and, thus, he could not be examined. In these circumstances, petitioner moved an application under order 16 Rule 1(3) read with Section 151 of the Code of Civil Procedure for issuance of summons for procuring the attendance of expert witness or in the alternative to permit the petitioner to engage another expert for inspection of the premises and to give evidence of the said expert in the case. The application was resisted by the landlord. The learned Rent Controller dismissed the application on 27.02.2009. He granted the last opportunity to produce the evidence on self responsibility on 21.04.2009. On 21.04.2009, the evidence of petitioner was closed and the matter was fixed for arguments on 08.05.2009. It is in these circumstances the petitioner-tenant has moved the present revision petition assailing the orders dated 27.02.2009 and 21.04.2009. 5. I have heard the learned counsel for the parties and gone through the pleadings carefully. 6. Petitioner’s application under Order 8 Rule 1-A(3) of the Code of Civil Procedure was allowed by the learned Rent Controller (1), Shimla, H.P. on 09.06.2008. He has permitted the report filed by Engineer Vivek Karol to be taken on record. Petitioner was permitted to prove the report of the expert and photographs as per the requirement of law vide order dated 09.06.2008. Engineer Vivek Karol has left Shimla permanently and as per the submission of Mr. Suneet Goel, learned counsel for the petitioner, he has settled in Madhya Pradesh. It is in these circumstances that the petitioner could not produce Engineer Vivek Karol to prove his report and the photographs and sought the indulgence of the Court. The application was preferred by the petitioner under Order 16 Rule 1(3) read with Section 151 of the Code of Civil Procedure, seeking assistance of the Court for summoning the expert witness. In the alternative, the petitioner has prayed that he may be permitted to engage another expert for inspection of the premises and building in question and to give evidence of the expert. The circumstances were beyond the petitioner to produce Engineer Vivek Karol, who had earlier visited the spot on 27.12.2007 and prepared his report on 07.01.2008. In the alternative, the petitioner has prayed that he may be permitted to engage another expert for inspection of the premises and building in question and to give evidence of the expert. The circumstances were beyond the petitioner to produce Engineer Vivek Karol, who had earlier visited the spot on 27.12.2007 and prepared his report on 07.01.2008. Learned Rent Controller has taken a very hypertechnical view while dismissing the application on 27.02.2009. The application has been filed since the petitioner was finding it difficult to summon Engineer Vivek Karol from Madhya Pardesh and in the alternative, he has also prayed for examining another expert. 7. The Court is of the considered view that the permission ought to have been granted to the petitioner to engage another expert in order to prepare expert report with regard to the condition of the building. The learned court below should have considered the alternative prayer instead of directing the petitioner to produce the evidence on self responsibility by way of last opportunity on 21.04.2009. As noticed above, it was not possible for the petitioner to produce Engineer Vivek Karol after he has moved to settle permanently in Madhya Pradesh. Thus, the petitioner’s evidence could not be closed on 21.04.2009. Petitioner ought to have been given one more opportunity to engage the services of another expert to prove the status of the building. The learned Rent Controller has failed to exercise the jurisdiction vested in him while rejecting the application preferred under Order 8 Rule 1-A (3) of the Code of Civil Procedure. The power vested in the Court must be exercised judiciously as per the settled principles of law. The deposition of the witness in a case, like this is material. In the instant case, the petitioner has given the circumstances under which he could not produce Engineer Vivek Karol and has prayed alternatively for permitting him to examine another expert witness. He has assigned valid and cogent reasons for non-production of Engineer Vivek Karol and for production of another expert witness. 8. Accordingly, in view of the observations and discussions made hereinabove, the revision petition is allowed. The orders dated 27.02.2009 and 21.04.2009 are set aside and the petitioner-tenant is granted one more opportunity to lead his evidence before the learned Rent Controller on a date to be fixed by him. 8. Accordingly, in view of the observations and discussions made hereinabove, the revision petition is allowed. The orders dated 27.02.2009 and 21.04.2009 are set aside and the petitioner-tenant is granted one more opportunity to lead his evidence before the learned Rent Controller on a date to be fixed by him. The entire evidence shall be produced by the petitioner-tenant at self responsibility, as undertaken by the learned counsel for the petitioner. The petitioner, however, shall be at a liberty to take dasti summons for the service of witness. On the failure of the petitioner to produce the evidence on the date fixed by the Rent Controller, his evidence shall be deemed to have been closed. Dasti summons shall be handed over to the learned counsel for the petitioner on the date applied for by him. The parties through their counsel are directed to appear before the learned Rent Controller on 12th September, 2011, on which date, learned Rent Controller shall fix a date for the evidence of petitioner-tenant.