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2020 DIGILAW 99 (MP)

PRAYAGNARAYAN BANSAL v. PAVAN CHANDIL

2020-01-16

G.S.AHLUWALIA

body2020
JUDGMENT/ORDER : – Shri Anil Kumar Saxena, counsel for the petitioner. Shri Ashish Saraswat, counsel for the respondent. This petition under Article 227 of the Constitution of India has been filed against the order dated 3-10-2019 passed by 5th Additional Judge to the 1st Civil Judge, Class-II, Morena in Civil Suit No. 90-A/2018, by which the trial Court has dismissed the applications filed under Order 16, Rule 6 and 7 and under Order 16, Rule 1 of Civil Procedure Code. 2. The necessary facts for the disposal of the present petition in short are that the respondent/plaintiff has filed a suit for eviction against the petitioner/ defendant claiming the vacant possession as well as for recovery of rent/mesne profits. 3. It is the case of the plaintiff that he is the owner of the disputed shop and the petitioner is the tenant. The petitioner filed his written statement and claimed that the petitioner is a tenant in the disputed shop ad-measuring 7 x 18 feet. The father of the petitioner was tenant at the monthly rent of Rs. 300/- which was increased by plaintiff from time to time and at present, the rent of disputed shop is Rs. 5,000/- per month. Other facts were denied by the petitioner. On the basis of the pleadings, issues were framed and case was fixed for recording of plaintiff evident. List of the witnesses was also submitted by the petitioner. An application under Order 16, Rule 1 of Civil Procedure Code was filed by the petitioner on the ground that the Commissioner, Municipal Corporation, Morena and the concerning Clerk of the record, Branch Manger of IDBI Bank, and Shri Jawaharlal Garg, Notary are government employees, therefore, all these witnesses be summoned through the Court. The plaintiff filed his reply and submitted that the application filed by the petitioner is baseless. 4. Another application was filed by the petitioner under Order 16, Rule 6 and 7 of Civil Procedure Code that the Commissioner, Municipal Corporation and related Clerk, Branch Manager, IDBI Bank, Morena and Jawaharlal Garg, Notary and shop registration record be summoned. It is alleged that the petitioner had filed an application to obtain the certified copy of the record from the Municipal Corporation, Morena under the Right to Information Act. It is alleged that the petitioner had filed an application to obtain the certified copy of the record from the Municipal Corporation, Morena under the Right to Information Act. By letter dated 20-8-2019 the Municipal Corporation rejected the application dated 22-7-2019 on the ground that information has been sought in a question answer form which cannot be provided. Thereafter, by letter dated 17-9-2019, the application under the Right to Information Act was rejected on the ground that since the property tax is self assessed by the owner and as the names of the tenants are not recorded in the property tax register, therefore, it is not possible for the Municipal Corporation to give the documents sought by the petitioner. It is further submitted that after receiving the notice sent by plaintiff, the petitioner had sent the bank draft to the respondent/plaintiff but the plaintiff deliberately did not get the said bank draft encashed. The said application was also opposed by the plaintiff. By the impugned order dated 3-10-2019, the applications filed by the petitioner under Order 16, Rule 1 of Civil Procedure Code (Annexure P-2) and under Order 16, Rule 6 and 7 of Civil Procedure Code (Annexure P-4) have been rejected. 5. Challenging the orders passed by the Court below, it is submitted by the counsel for the petitioner that since the officers of Municipal Corporation, Morena, IDBI Bank Branch Manager, Jawaharlal Garg, Notary and the officers working in Shop Establishment Registration Office, Morena cannot be produced by the petitioner, therefore, the trial Court should have summoned those witnesses through the Court. Further, it is submitted that in the property tax register, the names of the tenants are always recorded by the Municipal Corporation and property tax is assessed on the basis of rent received from the tenants and, therefore, the said record along with the officer of the Municipal Corporation, Morena is essential. Furthermore, the plaintiff has fraudulently disclosed the names of some persons as the tenants of other shops situated in the market and, accordingly, the forged rent note was executed by the plaintiff in favour of Deepak Jain which was got notarized from Jawaharlal Garg on 2-2-2018 and thus, the Notary may be directed to produce his register as well as Jawaharlal Garg be also directed to appear for giving his evidence. It is also submitted that in the plaint map, a shop in the name and style of Divya Life Style has been shown in the eastern side of the disputed shop, therefore, the record of the entire shop be summoned. It is further submitted that after sending notices, the petitioner had sent the arrears of rent by preparing the Bank Drafts of Rs. 24,000/- and Rs. 20,000/- respectively, which was sent to the respondent by registered post dated 14-6-2018. However, the respondent/plaintiff had falsely informed the petitioner to the effect that the drafts have not been received. Accordingly, the petitioner had applied to the Bank for preparation of duplicate draft on which it was directed that in case, if the plaintiff signs a proforma for issuance of duplicate draft, then the same can be done. However, as the plaintiff has refused to do so, therefore, it is necessary to summon the Bank Officer along with the record. 6. Per contra, it is submitted by the counsel for the respondent that the petitioner is trying to delay the proceedings by filing frivolous applications. Municipal Corporation, Morena has already informed that the names of the tenants are never recorded in the property tax register. So far as the preparation of forged rent note in favour of Deepak Jain is concerned, it submitted that it has no relevance. Further, it was denied that no forged rent note was prepared but it is submitted that in fact Deepak Jain is one of the tenants. Similarly, it is submitted that the petitioner had never sent the bank drafts and it was incorrect on his part to suggest that two bank drafts of Rs. 24,000/- and Rs. 20,000/- respectively were sent along with the notice sent by the respondent/plaintiff. 7. Heard the learned counsel for the parties. The moot question for consideration is that whether the documents sought to be summoned by the petitioner as well as the witnesses sought to be examined by the petitioner are necessary/essential for just decision of suit or not? 8. So far as the question of property tax register is concerned, Municipal Council, Morena has already disclosed that the names of the tenants are never mentioned in the property tax register and property tax is assessed on the basis of self-assessment done by the owner. 9. 8. So far as the question of property tax register is concerned, Municipal Council, Morena has already disclosed that the names of the tenants are never mentioned in the property tax register and property tax is assessed on the basis of self-assessment done by the owner. 9. The counsel for the petitioner could not point out any provision of law which requires that the property tax is to be assessed on the basis of rent paid by the tenants. 10. So far as the question of preparation of forged rent note in favour of Deepak Jain is concerned, the plaintiff has claimed that in fact Deepak Jain is the tenant. Counsel for the petitioner could not point out the relevancy of summoning Jawaharlal Garg, Notary, who had notarized the rent note. Whether any alternative accommodation, which is sufficient to cater the need of landlord is available or not, has to be established and the availability of an alternative accommodation can also be proved by tenant by leading cogent evidence. However, the question of genuineness of rent note executed in favour of Deepak Jain cannot be considered in the suit. 11. So far as the bankers cheque is concerned, the question is that whether the petitioner had paid the rent or not ? 12. According to the application itself, the petitioner had sent Rs. 44,000/- by way of arrears of rent, thus, it is clear that the petitioner himself had admitted that he had not paid the rent for the last several years. 13. Under these circumstances, this Court is of the considered opinion that the petitioner has miserably failed in establishing the relevance of the witnesses mentioned in the list filed under Order 16, Rule 1 of Civil Procedure Code and has also miserably failed in establishing the relevance of the document sought to be summoned by the petitioner. 14. Accordingly, this Court is of the considered opinion that the above-mentioned two applications were filed with the solitary intention to delay the proceedings. The respondent/plaintiff has filed a suit for eviction, which is required to be disposed of as early as possible. The suit was filed in the year 2018 and written statement was filed on 3-12-2018. Accordingly, this Court is of the considered opinion that the trial Court must take every effort to conclude the suit as early as possible. With the aforesaid observations, the petition is hereby dismissed.