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2011 DIGILAW 2757 (RAJ)

Prem Ratan v. Rent Tribunal

2011-12-14

ALOK SHARMA

body2011
Hon'ble SHARMA, J.—Counsel for the petitioner submits that the defect pointed out by the Registry has been removed. 2. With the consent of the counsel for the petitioner, the petition is finally heard. 3. The present petition has been filed against the order dated 24.08.2011, passed by the Rent Tribunal, Jaipur dismissing the petitioner's application filed under Order 26 Rule 9 CPC on the ground that the provision of Order 26 Rule 9 CPC could not be utilized for obtaining of evidence for the defence. 4. The facts of the case are that one Shri Kishan Malpani, the original landlord, filed a petition seeking eviction of a shop in possession of the petitioner-tenant (hereinafter 'the tenant'). It was alleged in the eviction petition that the premises in question earlier let out to the tenant and were now required for bona fide necessity of the landlord's grandson namely Amish Malpani who required the premises to do business of Jewellery. During the pendency of the petition, the landlord Shri Kishan Malpani died and was substituted by Shyam Das Malpani stating that he had come into the ownership of the said premises on the basis of a will dated 10.11.2005 executed by Shri Kishan Malpani. Subsequent to his substitution, the subsituted plaintiff (respondent-landlord herein) after due permission filed an amended plaint along with an affidavit. 5. The tenant filed a reply to the amended suit for eviction denying the necessity of the suit premises for Amish Malpani stating that he was already doing business in the second floor of House No.214, Pitaliyon Ka Chowk and further stated that House No.1583 was a big house and apart from the tenanted premises, there was three other shops in the possession of the landlord whereform Amish Malpani could carry out business. 6. Various proceedings were taken before the Rent Tribunal in the process of the adjudication of the eviction petition and it appears that the landlord did not produce the purported will dated 10.11.2005 and the map of the premises relied upon by him in the eviction proceedings for his substitution in spite of a direction of the Court in this regard issued on 26.08.2009 and took a stand on the tenant's application for production of the same that the same were not available with him. 7. 7. In these circumstances, the tenant moved an application under Order 26 Rule 9 CPC requesting the court to appoint a Commissioner for inspection of House No.1583 so that the truth of "occupancy of the premises can be brought on record" which according to him had a bearing on merits of the eviction petition as filed. 8. Vide order dated 24.08.2011, the Rent Tribunal dismissed the application on the ground that an application under Order 26 Rule 9 CPC could not be utilized for gathering evidence for any party in the eviction proceedings – in the instant case – the tenant. The Rent Tribunal held that it was for the tenant to bring his defence and on the basis of the totality of the evidence before the Tribunal, the suit for eviction would be adjudicated. 9. Counsel for the petitioner has submitted that the order dated 24.8.2011 passed by the Rent Tribunal ought to be set aside as it is not only illegal and arbitrary, but also unjust. Counsel submits that in view of the attitude of the landlord in suppressing the correct facts with regard to the status of other properties in his possession suitable for the business of Amish Malpani, the application under Order 26 Rule 9 CPC was the only manner of the Tribunal coming into knowledge of the correct facts with regard to the case before it. Reference has been placed by the counsel for the petitoner on the judgment of this Court in the case of M/s. Gupta Agencies & Ors. vs. Ram Krishan Akar & Ors. (2001 WLC (Raj.) UC 661) to contend that in similarity of facts, this Court had directed to allow the application Order 26 Rule 9 CPC headed to over-come the failure of the landlord to bring the correct facts before the Court. 10. I have heard the counsel for the petitioner and perused the writ petition. (2001 WLC (Raj.) UC 661) to contend that in similarity of facts, this Court had directed to allow the application Order 26 Rule 9 CPC headed to over-come the failure of the landlord to bring the correct facts before the Court. 10. I have heard the counsel for the petitioner and perused the writ petition. Order 26 Rule 9 CPC reads as under : Commissions to make local investigations.- In any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the court: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the court shall be bound by such rules. 11. Order 26 Rule 9 CPC requires a local investigation at the discretion of the court in three different situations i.e. (i) for the purpose of elucidating any matter in dispute (ii) ascertaining the market-value of any property (iii) ascer-taining the amount of any mesne profits or demages or annual net profits. 12. The instant case is only concerned with the situation under Order 26 Rule 9 CPC relating to the purpose of elucidating the matter in dispute. The Concise Oxford Dictionary New Seventh edition defines the word "elucidate" to mean "throw light on" or "explain". It is thus clear that the provisions under Order 26 Rule 9 CPC while empowering the court with the discretion to direct a local investigation for the purpose of "elucidating the matter in dispute" only provides for the court to make local investigation where the court is not clear with regard to the matter in dispute such as where court feels the absence of requisite clarity qua the subject matter of the dispute. In the instant case, the dispute before the Tribunal was / is absolutely clear i.e. whether the tenanted premises were liable to be vacated by the tenant owing to the bona fide and reasonable necessity of the landlord. There was thus no occasion for any elucidation of the subject matter in dispute. In the instant case, the dispute before the Tribunal was / is absolutely clear i.e. whether the tenanted premises were liable to be vacated by the tenant owing to the bona fide and reasonable necessity of the landlord. There was thus no occasion for any elucidation of the subject matter in dispute. The application under Order 26 Rule 9 CPC was thus misdirected and was only intended to facilitate the gath-ering of the evidence on behalf of the tenant. This is wholly impermissible. A reference in this regard may be held to the judgment of this Court in the case of Smt. Vimla Sharma vs. Registrar, Co-op. Societies Raj & Ors. (RLW 1997(2) (Raj) 1304) wherein this Court has held that the provision of O. 26 R. 9 CPC read with Rule 67 of the Civil Rules provides that when issuing a commission for making a local investigation, the court shall define the points on which the Commissioner has to report and no point which ought to be substantiated by the parties by evidence at the trial shall be referred to the Commissioner. 13. I am of the view that the judgment of this Court in Smt. Vimla Sharma (Supra) correctly defines the State of Law in holding that no point which ought to be substantiated by the parties by evidence at the trial shall be referred to the Commissioner for a local investigation. In the case at hand, it is for the tenant to make his defence before the Rent Tribunal and the Commissioner under Order 26 Rule 9 CPC could not be appointed to facilitate the same for the tenant. 14. The writ petition is without force and therefore deserves to be dismissed. 15. Stay application is also dismissed.