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2015 DIGILAW 1002 (RAJ)

Arun Kumar v. Dharmchand Jain

2015-05-06

MOHAMMAD RAFIQ

body2015
Hon'ble RAFIQ, J.— This writ petition has been filed by tenant-petitioner challenging order dated 30.10.2014 passed by the Rent Tribunal, Alwar, whereby the Application No. 69/2009 filed by tenant-petitioner under Order XI Rules 12 and 14 read with Section 151 of the Code of Civil Procedure (for shot, `the CPC') for summoning certain documents, has been dismissed. The tenant-petitioner, in the aforesaid application, prayed for a direction to landlord-respondents to produce on record rent-notes of other three shops, which they have let out to different persons, to enable him to show as to when such shops were left out and whether the shops were let out after filing of the eviction petition. The Rent Tribunal rejected the application on the premise that plea of personal bona-fide necessity has to be proved by landlord and therefore, summoning of those documents would not be said to be necessary. 2. Ms. Sangeeta Sharma, learned counsel for tenant-petitioner, assailed the correctness of the impugned order and argued that the Rent Tribunal has failed to appreciate that landlord-respondents themselves have set up the plea of personal bona-fide necessity. At the same time, the landlord-respondent-Dharamchand Jain admitted in his cross-examination before the Rent Tribunal that he had let out three other shops about two years and three months ago. His statement was recorded on 27.9.2011 and that would mean that the shops were let out soon after filing of eviction petition and the eviction petition was filed on 25.11.2009. Summoning of the rent-notes is necessary to establish that personal necessity of the landlord-respondent was neither bona-fide nor genuine. The rent-notes were the best evidence to prove the case of tenant-petitioner that shops were in fact let out by landlord-respondents after filing of the eviction petition and that even though the landlord-respondents had three other shops, yet they chose not to make use of them for their personal necessity and have filed eviction petition against tenant-petitioner. According to tenant-petitioner, the need of landlord-respondents in this situation, would neither be a bona-fide nor genuine. 3. According to tenant-petitioner, the need of landlord-respondents in this situation, would neither be a bona-fide nor genuine. 3. Shri Mohit Gupta, learned counsel for land-lord-respondents opposed the writ petition and submitted that the landlord-respondent has not only admitted in his cross-examination that he let out the shops about two years and three months before recording of his statement but in the reply to the application filed by tenant-petitioner under Section 9 of the Rajasthan Rent Control Act, he admitted the fact that the shops were let out by him prior to filing of the eviction petition. The Rent Tribunal has thus rightly rejected the application of the tenant-petitioner filed under Order XI Rules 12 and 14 of the CPC. The Rent Tribunal also held that burden of proving the persona bona-fide necessity is on the landlord-respondent and therefore summoning of the rent notes may not be necessary. 4. In the scheme of the CPC, the legislature has purposely provided in Order XI Rule 12 of the CPC as a stage where any party may, without filing any affidavit, apply to the court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been his possession or power, relating to any matter in question therein. The court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion, be thought fit. 5. The purpose of discovery of documents with reference to Order XI Rule 12 and 14 of the CPC is to provide the parties with the relevant documentary material before the trial so as to assist them in appraising the strength or weakness of their respective cases, and thus to provide the basis for the fair disposal of the proceedings before or at the trial. Each party is thereby enabled to use before the trial to adduce in evidence at the trial relevant documentary material to support or rebut the case made by or against him to eliminate surprise at or before the trial relating to documentary evidence and to reduce the costs of the litigation. 6. Each party is thereby enabled to use before the trial to adduce in evidence at the trial relevant documentary material to support or rebut the case made by or against him to eliminate surprise at or before the trial relating to documentary evidence and to reduce the costs of the litigation. 6. These provisions have made it obligatory for the opposite party to disclose the existence of relevant documents, which is coextensive with the obligation to produce documents for inspection. The fact that a document is privileged or otherwise protected from inspection is no reason for not disclosing its existence. In determining whether a document should be disclosed by a party two tests should be applied: (1) whether it is relevant: (2) whether it is or was in the possession, custody or power of the party or his agent: and in any case when the order directing disclosure has limited discovery or relates to particular documents only the terms of that order must be applied. The right to the production of documents is a corollary of the right to their inspection, and an order for their production for inspection is the obvious method of enforcing that right. If the party serving a list of documents, or if a party served with a notice to produce for inspection documents referred to in pleadings or affidavits, fails to serve the necessary notice offering inspection or objects to produce any documents for inspection or offer inspection at a time or place such that, in the opinion of the court, it is unreasonable to offer inspection then or there, the party entitled to inspection may apply for an order for production of the documents in question for inspection at such time and place and in such manner as the court thinks fit. But the power of the court to make an order for production for inspection is discretionary, and the court will not make an order for the production of any documents for inspection unless it is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs. But the power of the court to make an order for production for inspection is discretionary, and the court will not make an order for the production of any documents for inspection unless it is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs. Whilst the court may make an order for production for inspection at anytime, it will not normally allow a plaintiff inspection before he has served his statement of claim or a defendant before he has filed his written statement or reply to eviction petition as in this case. 7. Section 21 of the Rajasthan Rent Control Act, has provided procedure and power of Rent Tribunal and Appellate Rent Tribunal. The said provision stipulated that in every case before the Rent Tribunal and the Appellate Rent Tribunal the evidence of a witness shall be given by affidavit. The Rent Tribunal or the Appellate Rent Tribunal, where it appears to it that it is necessary in the interest of justice to call a witness for examination or cross-examination and such witness can be produced, may order attendance for examination or cross-examination of such a witness. Sub-section (3) thereof provides that the Rent Tribunal and the Appellate Rent Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908, but shall be guided by the principal of natural justice and subject to other provisions of this Act or the Rules made thereunder and shall have powers to regulate their own procedure, and for the purpose of discharging their functions whatever under this Act but they shall have, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit or an appeal in respect of listed provisions. The powers that are listed in sub-section (3) with reference to various provisions of the Code of Civil Procedure, Clause (b) enumerates the power requiring the discovery and production of documents. 8. The power given to a regular civil court under the provisions of Order XI Rule 12 of the CPC would therefore also be available to the Rent Tribunal as well by aforesaid statutory prescription contained in Section 21 of the Rent Control Act, despite said provision stipulating that the Rent Tribunal shall not be bound by the provisions of the Code of Civil Procedure. 9. In the present case, landlord-respondent Dharmchand Jain although, during his cross-examination before the Appellate Tribunal on 27.9.2011, admitted the fact that he let out three other newly constructed shops about two years and three months ago, which, according to learned counsel representing him in this court, would be prior to filing of the eviction petition. In the reply to the application filed by tenant-petitioner under Section 9 of the Rajasthan Rent Control Act and under Order XI Rules 12 and 14 of the CPC also the respondent-landlord has admitted that three shops in question were already let out before filing of the eviction petition, but that is an admission by the respondent-landlord in his own favour. The Rent Tribunal has not properly approached the issue while it held that the burden of proving the question of personal bona-fide necessity of the landlord-respondent is that of the landlords, therefore, the rent notes need not be summoned. In fact, summoning of the rent-notes from the landlord would be necessary to prove if actual need of the landlord was bona-fide and genuine. If it is proved by production of rent-notes landlords that three other shops and any one of them, were/was let out subsequent to filing of the eviction petition by the landlord before the Rent Tribunal on 24.12.2009, that would prove a fact in favour of the tenant that need of the landlord may not be bona-fide or genuine. Provisions of Order XI Rules 12 and 14 of the CPC are meant to cut-short the protected procedure of proving such facts by a detailed enquiry and evidence. It facilitates the early decision of the question involved by curtailing the prolonged procedure of recording evidence and counter. In that view of the matter the impugned order cannot be sustained. It is accordingly set aside. The land-lord-respondent is directed to produce before the trial court three rent-notes in relation to three shops in question and if need be, the Rent Tribunal may summon the landlord on one single date, for his cross-examination for the purpose of afore-mentioned rent notes. 10. In the result, the writ petition is allowed. Impugned order dated 30.10.2014 passed by the Rent Tribunal, Alwar, in Case No. 69/2009, is set aside and application filed by the tenant-petitioner under Order XI Rules 12 and 14 of the CPC stands allowed. 10. In the result, the writ petition is allowed. Impugned order dated 30.10.2014 passed by the Rent Tribunal, Alwar, in Case No. 69/2009, is set aside and application filed by the tenant-petitioner under Order XI Rules 12 and 14 of the CPC stands allowed. The Rent Tribunal shall decide the eviction petition itself within a period of four months from the date a copy of this order is produced before it. 11. This also disposes of stay application.