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Himachal Pradesh High Court · body

2019 DIGILAW 1724 (HP)

Raj Mal Sharma v. Dharam Singh Thakur

2019-11-15

AJAY MOHAN GOEL

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JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this petition, the petitioner has challenged order dated 11.06.2018, passed by the Court of learned Rent Controller, Court No. 1, Shimla, H.P. in Case No. 37-2 of 2017/2015, vide which, an application filed under Order 39 Rule 7 read with Section 151 of the Code of Civil Procedure by the petitioner has been dismissed. 2. Brief facts necessary for the adjudication of the present petition are that an Eviction Petition has been filed by the respondent herein against the petitioner, inter alia, on the ground that the premises in occupation of the petitioner are required by the landlord for settling his daughter-in-law, who is a widow as also her minor child. Complete description of the premises, which otherwise are owned by the landlord, which are relevant for the purpose of adjudication of the Rent Petition, stand stated in para-18 of the Rent Petition and reply filed by the tenant to the same demonstrates that there is no serious dispute with regard to the said description. 3. At the stage when the evidence of the tenant was to be recorded by the learned Rent Controller, an application stood filed under Order 39, Rule 7 read with Section 151 of the Code of Civil Procedure by the tenant with the prayer that as dimensions of the property in possession of the landlord were not depicted in the Rent Petition, therefore, a technical expert be appointed to measure the dimensions of the premises owned by the landlord, as the same was necessary for decision of the case. 4. This application stands dismissed by the learned Rent Controller vide impugned order by holding that the provisions of Order 39, Rule 7 of the Code of Civil Procedure are not to be invoked by the Court to create evidence in favour of either of the parties and even otherwise, it was for the tenant to prove his case by leading cogent evidence in consonance with his pleadings. Learned Rent Controller also held that as tenant had not yet led his evidence, whatever was intended to be done by virtue of application so filed under Order 39, Rule 7 of the Code, could be done by him by leading evidence to this effect to prove his case in accordance with law. Learned Rent Controller also held that as tenant had not yet led his evidence, whatever was intended to be done by virtue of application so filed under Order 39, Rule 7 of the Code, could be done by him by leading evidence to this effect to prove his case in accordance with law. Learned Court also held that Order 39, Rule 7 of the Code was not meant for creating evidence in favour of either of the parties and said provision was to be invoked by the Court if after leading of the evidence by the parties, the Court was of the opinion that there was some ambiguity in the evidence and something more was required in order to do justice to the parties. By assigning said reasons, the application filed by the tenant stood dismissed by the learned Rent Controller. 5. Feeling aggrieved, tenant has filed the present petition. 6. I have heard learned counsel for the parties and have also gone through the impugned order as well as other documents appended with the petitioner. 7. In my considered view, there is no infirmity with the order which stands assailed by way of present petition. It is not in dispute that the case is at the stage of recording of the evidence by the tenant. In case it is the version of the tenant that the Rent Petition has been filed with an oblique motive as the landlord has got sufficient accommodation to habilitate his daughter-in-law and her minor child, then said facts are to be proved by the tenant by leading cogent evidence before the learned Rent Controller. It not for the Court to assist the tenant in deducing such evidence before it by ordering the measurement etc. of the premises owned by the landlord. In my considered view, if the prayer so made by the tenant is conceaded to by the Court, then the Court itself shall become a party to the lis and element of impartiality shall be eroded. of the premises owned by the landlord. In my considered view, if the prayer so made by the tenant is conceaded to by the Court, then the Court itself shall become a party to the lis and element of impartiality shall be eroded. This Court concurs with the findings returned by the learned Rent Controller that the provisions of Order 39, Rule 7 of the Code of Civil Procedure are not to be invoked by the parties to create evidence in favour of either of the parties and the said provisions are to be invoked by the Court only if in the opinion of the Court, there is some ambiguity in the evidence and something more is required in order to do justice to the parties. 8. Accordingly, in view of the observations made hereinabove, as this Court finds no infirmity with the impugned order dated 11.06.2018, passed by the Court of learned Rent Controller, Court No. 1, Shimla, H.P. in Case No. 37-2 of 2017/2015 and further as there is no merit in the present petition, the same is dismissed. Interim order, if any, stands vacated.