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2012 DIGILAW 1556 (RAJ)

Sandeep Chittoda v. Vijay Lal Tayal

2012-07-16

GOPAL KRISHAN VYAS

body2012
JUDGMENT 1. - Instant writ petition has been filed under Article 226/227 of the Constitution of India by the petitioners with the prayer that order dated 28.10.2009 may be quashed and application filed by the petitioners under Order 11 Rule 15, C.P.C. may be allowed. 2. Learned counsel for the petitioners submits that the plaintiff-respondent filed an application before the Rent Tribunal for eviction on the ground of bona fide necessity of the disputed shop for this grand-son. In the said suit, written-statement was filed by the petitioners stating therein that the grand-son of plaintiff-respondent is already having a business under partnership firm V. Kumar & Brothers and said firm is also registered with the Commercial Taxes Department. Learned Rent Tribunal directed the respondent-plaintiff to produce the said partnership-deed before the Court. Respondent-plaintiff stated on oath before the Court that the said firm has already been closed in the year 2006 and registration certificate has already been cancelled. It is also stated by the plaintiff that the said document i.e., partnership deed is not in his power and possession. 3. The petitioners moved an application under Order 11 Rule 14 C.P.C., to summon the said, document from the Commercial Taxes Department concerned. The Rent Tribunal rejected the said application filed by the petitioners observing therein that the respondent-plaintiff has already produced document regarding cancellation of registration of the firm in the year 2006, therefore, no other document is required to be summoned. 4. Learned counsel for the petitioners submits that order impugned dated 18.5.2009 passed upon application filed under Order 11 Rule 14, C.P.C., is illegal because on the one hand the Rent Tribunal itself directed the plaintiff-respondent to produce the said document and, on the other hand, inspite of the fact that the said partnership deed was not produced by the respondent-plaintiff solely on the ground that cancellation of registration has been filed the Rent Tribunal rejected the application filed by the petitioners for summoning the said document from the office concerned of the Commercial Taxes Department because the plaintiff-respondent stated that the said document is not in his power and possession. 5. 5. As per learned counsel for the petitioner-defendants the order suffers from illegality because in the one hand the trial Court itself passed order to produce the said partnership-deed on record to prove the fact whether grand-son of plaintiff was partner in the alleged firm or not hand, on the other hand; observed that the said document is not necessary, therefore, the order impugned deserves to be quashed. 6. Per contra, learned counsel for the respondent-plaintiff submits that the order impugned does not suffer from any illegality because the cancellation of partnership deed has already been filed along with affidavit that said partnership deed is not in his power and possession; meaning thereby, now the petitioner cannot compel the plaintiff-respondent to produce the said document which is not in his power and possession. Therefore, the order impugned is perfectly justified. 7. After hearing learned counsel for the parties, I am of the opinion that once after due application of mind the Rent Tribunal passed order whereby respondent-plaintiff was directed to produce the partnership deed on record, then, it was the duty of the plaintiff-respondent to produce the said document on record but, admittedly, the said order is not complied with by him. I am in full agreement with the submission of learned counsel for the petitioners that in view of the disability shown by the plaintiff-respondent that the said document is not in his power and possession the trial Court ought to have summoned the said document form the office concerned of the Commercial Taxes Department. However, the trial Court refused to accept the prayer of the petitioners. 8. In the facts and circumstances of the case this writ petition is allowed. Order impugned dated 28.5.2009 is quashed and application filed by the petitioners under Order 11 Rule 14, C.P.C., is allowed. The Rent Tribunal is directed to summon the document partnership-deed from the office concerned of the Commercial Taxes Department forthwith.Petition allowed. *******