Rajasthan High Court - Jodhpur
Mahendra Kumar Kabra vs Chaturbhuj & Anr on 3 April, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 9533 / 2017
Mahendra Kumar Kabra Son of Shri Bakishan Ji, By Caste
Maheshwari, Karta Mahendra Kabra HUF, "Kabrasemporium", 1st B
Road, Sardarpura, Jodhpur.
----Petitioner
Versus
1. Chaturbhuj Son of Shri Tejaram Ji, By Caste Kumhar, Resident
of 1st B Road, Sardarpura, Jodhpur.
2. Rent Tribunal, Jodhpur Metropolitan, Jodhpur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr.Ashok Kumar Jain, Adv.
For Respondent(s) : Mr.C.S.Kotwani, Adv. with
Mr.M.C.Tak, Adv.
_____________________________________________________
HON'BLE MS. JUSTICE NIRMALJIT KAUR
Reportable Judgment
03/04/2018
The present writ petition has been filed by the petitioner challenging the order dated 10.05.2017 passed by Rent Tribunal, Jodhpur Metropolitan, vide which, the applications filed by the petitioner-tenant for summoning the documents from landlord and from tenant of another shop, were dismissed.
The respondent-landlord preferred a petition for eviction on the ground of personal and bonafide necessity of rented premises for his son. The petitioner-tenant filed two applications for (2 of 6) [CW-9533/2017] summoning the documents from witness-Landlord (PW-1) and from tenant of shop No.6- Kedar Narayan. However, the said applications were dismissed vide order dated 10.05.2017 on the ground that the said documents were not necessary for adjudication of the case, especially when the applications were vague and petitioner-tenant has not clarified that the alleged documents were in whose possession.
While praying for setting aside the order and further allowing applications seeking production of the documents, learned counsel for the petitioner submitted that the observation of the learned Rent Tribunal was incorrect. The petitioner had specifically submitted in the application that the documents were in the possession of the respondent-landlord. Secondly, the eviction petition has been filed on the ground of bonafide need but since another shop i.e. shop no.6 belonging to the landlord had since been vacated by the tenant of the said shop, namely, Kedar Narayan, it was important and necessary that the respondent- landlord should be directed to produce his bank account as well as other receipts issued by the landlord to the Kedar Narayan, in case Kedar Narayan was still the tenant, as stated by the landlord. Reliance was placed on Order 11 Rule 12 of the CPC to contend that the court can always direct the party to produce the documents, which are in their possession relating to the matter in question therein.
In support of his arguments, learned counsel for the petitioner has placed reliance on the judgments rendered by Apex Court in the case of Mohd. Ismail Vs. Dinkar Vinayakrao Dorlikar, (3 of 6) [CW-9533/2017] reported in 2009 DNJ (SC) 1042 and in the case of Adil Jamshed Frenchman (Dead) by LRs vs. Sardar Dastur School Trust & ors., reported in 2005 AIR SCW 898 as well as the judgment rendered by this Court in S.B.Civil Second Appeal No.171/2001 (Mukti Lal Vs. Badri Narain).
The respondent-landlord had filed the reply to the application. In para 5 of the reply, it was specifically stated by the landlord that the possession of the shop no.6 was not with him and that the rent of the said premises was still being paid by Kedar Narayan to the respondent-landlord.
Heard.
There is no dispute with the judgments rendered in the case of Mohd. Ismail Vs. Dinkar Vinayakrao Dorlikar, Adil Jamshed Frenchman (Dead) by LRs vs. Sardar Dastur School Trust & ors. and Mukti Lal Vs. Badri Narain (supra). However, each case has to be decided on its own facts. The judgment rendered in the case of Mohd. Ismail (supra) related to the framing of the issues where the material on record was not taken into consideration for framing of the said issue.
The judgment rendered in the case of Adil Jamshed Frenchman (supra), no doubt, relates to the production of the documents however, in the said case, the trial court had come to the conclusion that the same were necessary for proper adjudication of the case but in spite of the facts of the said case, the High Court set aside the order. It was in these circumstances that the Apex Court set aside the order of High Court and upheld that of the trial court. As per Order 11 Rule 12 of the CPC, before (4 of 6) [CW-9533/2017] allowing an application to produce the documents, the Court has to satisfy itself as to whether the said documents are necessary or not. In the present case, the Rent Tribunal has specifically noted that the documents sought to be produced were not relevant.
It is also the case of the petitioner-tenant that the said rent was being paid in cash, for which the respondent-landlord was issuing the receipt. If it is so, the receipt would be in the possession of the tenant- Kedar Narayan and not of the landlord. The said Kedar Narayan is neither a witness and nor he is a party in the proceedings before the Rent Tribunal. Reliance was placed on the provision of CPC to state that the documents can be called from a witness or any other person, if so required and does not necessary have to be a party or witness in a case. However, as per sub-section (3) of Section 21 of the Rajasthan Rent Control Act, 2001, the Rent Tribunal and Appellate Rent Tribunal are not bound by the procedure laid down by the Code of Civil Procedure but are to be guided by the principles of natural justice. In the present case, admittedly, the petitioner-tenant made a lengthy cross- examination of the respondent-landlord running into almost 80 pages. Similarly, the second witness of the respondent-landlord has already been examined at length running into 34 pages and the cross-examination is still going on. The petitioner-tenant had ample opportunity to seek the information from the respondent- landlord through the cross-examination. Thus, the application appears to be nothing but only a delaying tactics.
Even otherwise, the only reason for petitioner-tenant seeking production of these documents is to prove that the respondent-
(5 of 6) [CW-9533/2017] landlord has an alternative shop now available to him to overcome his bonafide need for running the business of his son. However, it is well settled that neither the tenant nor the court can direct a landlord to choose the place and premises for running his business. Besides, the bonafide need has to be seen on the date of the application and not on account of the subsequent development.
The Apex Court in the case of Uday Shankar Upadhyay & Ors. Vs. Naveen Maheshwari, reported in 2010(3) Civil Court Cases 138 (S.C.) held that a court cannot dictate to a landlord as to which floor he should use for his business as this is the prerogative of the landlord alone. In the said case, the tenant had taken the plea that the plaintiffs-landlord had alternative accommodation which was a hall over the suit shop and hence, the sons of the landlord could carry on business from the same. The Apex Court while upholding the order of the court below held as under:-
11. In our opinion, once it is not disputed that the landlord is in bona fide need of the premises, it is not for the courts to say that he should shift to the first floor or any higher floor. It is well-known that shops and businesses are usually (though not invariably) conducted on the ground floor, because the customers can reach there easily. The court cannot dictate to the landlord which floor he should use for his business; that is for the landlord himself to decide. Hence, the view of the courts below that the sons of plaintiff No. 1 should do business on the first floor in the hall which is being used for residential purpose was, in our opinion, wholly arbitrary, and hence cannot be sustained.
Moreover, the Court can always draw adverse inference for production and non-production of any relevant document by either of the parties, if any.
(6 of 6) [CW-9533/2017] In view of the above, this Court finds no ground to interfere in the order dated 10.05.2017 passed by Rent Tribunal. The writ petition is dismissed accordingly.
(NIRMALJIT KAUR), J.
NK/83