Himachal Pradesh High Court
Tilak Raj Son Of Late Shri Joginder Nath ... vs Rajinder Sood Alias Rajan Son Of Late Sh. ... on 19 October, 2016
Author: P.S. Rana
Bench: P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Civil Revision No. 83 of 2015
Order Reserved on 20th July 2016
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Date of Order 19th October 2016
________________________________________________________
Tilak Raj son of late Shri Joginder Nath Sood & another
....Revisionists/Tenants
Versus
Rajinder Sood alias Rajan son of late Sh. Rameshwar Nath Sood
....Non-Revisionist/Landlord
of
_____________________________________________________
Coram
The Hon'ble Mr. Justice P.S. Rana, J.
Whether approved for reporting?1 Yes.
rt __________________________________________________________ For the Revisionists: Mr. Mohan Singh Advocate For the Non-Revisionist: Mr. Rajiv Sirkeck Advocate P.S. Rana, Judge.
Order:-
Present civil revision petition is filed under Section 115 of the Code of Civil Procedure 1908 for setting aside order dated 27.3.2015 passed by learned Rent Controller Shimla under Order 18 Rule 17 CPC read with Section 151 CPC in case No. 231-2 of 2013/09 title Rajinder Sood vs. Tilak Raj.1
Whether Reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 21:23:56 :::HCHP 2
Brief facts of the case
2. Landlord Rajinder Sood filed eviction petition .
in the year 2009 against tenants under Section 14 of H.P. Urban Rent Control Act 1987 relating to Quarter No. 14 Out House No. 2 Anand Lodge Jakhoo Shimla on the ground that tenant is in arrears of rent upto September 2009 for a sum of Rs.18000/- (Rupees eighteen thousand) of plus interest at the rate of 9% per annum and on the ground that premises in question required bonafide by rt landlord for carrying out reconstruction which could not be carried out without eviction of tenants. It is also pleaded that premises is hundred years old and is in dilapidated condition.Prayer for acceptance of petition sought.
3. Per contra petition is contested by tenants on the ground that present petition is not maintainable and landlord has no cause of action to file present petition and present petition is filed with malafide intention. It is pleaded that earlier eviction petitions were filed by landlord against father of tenants which were dismissed. It is pleaded that petition is liable to be dismissed under Section 11 of CPC. Prayer for dismissal of petition sought.
::: Downloaded on - 15/04/2017 21:23:56 :::HCHP 34. Learned Rent Controller framed issues and listed the petition for evidence of landlord. Landlord examined PW1 namely Shri Rajinder Sood, PW2 Jamuna .
Dass. Learned Rent Controller on dated 2.7.2012 closed evidence of landlord by order of Court and thereafter listed the eviction petition for evidence of tenants on 8.8.2012, 20.9.2012, 15.10.2012, 25.3.2013, 26.4.2013, 20.5.2013, 2.7.2013. Learned Rent Controller granted last of and exceptional opportunity to tenants to adduce evidence subject to cost of Rs.300/- (Rupees three rt hundred) with direction that evidence of tenants would be closed by order of learned Rent Controller on next date.
Learned Rent Controller listed eviction petition for evidence of tenants on dated 11.9.2013. Learned Controller closed the evidence of tenants by order of Court. Tenants examined Tilak Raj as RW1, Mukesh Sood as RW2, Chander Mohan as RW3.
5. Thereafter tenants filed civil revision petitions Nos. 4078 of 2013 and 4084 of 2013 before Hon'ble High Court of H.P. which were decided by Hon'ble High Court of H.P. on 30.4.2014. Hon'ble High Court of H.P. dismissed Civil Revision Petitions Nos. 4078 of 2013 and 4084 of 2013 and affirmed the order of learned Rent Controller ::: Downloaded on - 15/04/2017 21:23:56 :::HCHP 4 dated 11.9.2013 whereby evidence of tenants closed by order of Court. Thereafter tenants filed another application under Order 18 Rule 17 read with Section 151 .
CPC for recalling the tenant as a witness to mark inspection report, photographs and CD on the ground that expert Mr.J.K. Mehandroo retired executive engineer died and inspection report, photographs and CD remained non-
exhibited.
of
6. Application filed by tenants was contested by landlord pleaded therein that application is a gross abuse rt of process of law and application filed by tenants is moved with malafide just to delay eviction proceedings. It is pleaded by landlord that sufficient opportunities granted by learned Rent Controller to tenants to adduce evidence.
It is pleaded that tenants filed revision petition before H.P. High Court against order of learned Rent Controller relating to closing of evidence of tenants by order of Court and Hon'ble H.P. High Court affirmed closure order of evidence of tenants. Prayer for dismissal of application sought.
7. Learned Rent Controller dismissed application under Order 18 Rule 17 read with Section 151 CPC on dated 27.3.2015.
::: Downloaded on - 15/04/2017 21:23:56 :::HCHP 58. Feeling aggrieved against order of learned Rent Controller dated 27.3.2015 tenants have filed the present civil revision petition.
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9. Court heard learned Advocate appearing on behalf of revisionists and learned Advocate appearing on behalf of non-revisionist and Court also perused entire record carefuly.
10. Following points arise for determination in civil of revision petition:-
Point No.1 Whether revision petition filed under Section 115 of Code of Civil Procedure 1908 is liable rt to be accepted as mentioned in memorandum of grounds of civil revision petition?
Point No.2 Relief.
Findings upon point No.1 with reasons
11. Submission of learned Advocate appearing on behalf of revisionists that order of learned Rent Controller dated 27.3.2015 passed upon application filed under Order 18 Rule 17 read with Section 151 CPC is perverse and illegal and on this ground revision petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Tenants filed application under Order 18 Rule 17 read with Section 151 CPC for recalling ::: Downloaded on - 15/04/2017 21:23:56 :::HCHP 6 the tenant as a witness to mark the documents i.e. inspection report, photographs and CD etc. on the ground that expert Mr. J.K. Mahendroo inspected the premises on .
10.3.2013 and after personal visit by expert the expert prepared technical report along with photographs and CD.
It is pleaded that Mr.J.K. Mahendroo expired and documents could not be exhibited and remained unmarked because of death of expert. Tenants sought of permission of learned Rent Controller to re-examine himself for above stated purpose. It is held that once rt evidence of party is closed by order of Court then party cannot be allowed to adduce any additional oral or documentary evidence. In present case it is proved on record that evidence of tenants closed by order of Court of learned Rent Controller on 11.9.2013 and it is also proved on record that thereafter order of learned Rent Controller closing the evidence of tenants was challenged in Hon'ble High Court in revision petitions No. 4078 of 2013 and 4084 of 2013 and Hon'ble High Court disposed of revision petitions No. 4078 of 2013 and 4084 of 2013 on 30.4.2014 and affirmed order of learned Rent Controller dated 11.9.2013 whereby evidence of tenants closed by order of learned Rent Controller.
::: Downloaded on - 15/04/2017 21:23:56 :::HCHP 712. There is no evidence on record in order to prove that tenants filed SLP before Hon'ble Apex Court of India. Order passed by Hon'ble High Court closing the .
evidence of tenants became final on 30.4.2014. It is held that if tenant is permitted to re-examine himself at this stage of case then same will tantamount to interference in order of Hon'ble High Court which is not permissible in law. In view of the fact that order of learned Rent of Controller closing the evidence of tenants has attained stage of finality upto the level of Hon'ble High Court it is rt not expedient in the ends of justice to allow the tenants to adduce any oral or documentary evidence on record. It is also proved on record that sufficient eight opportunities were granted by learned Rent Controller to tenants to adduce evidence in support of their case. As per Order XVII rule 1 of CPC proviso adjournment for more than three times should not be granted.It is well settled law that in revision petition High Court should not reverse the order of learned Rent Controller unless the order of learned Rent Controller is perverse. See AIR 1991 SC 455 title Masjid Kacha Tank Nahan vs. Tuffail Mohammed. See AIR 1969 SC 579 title The Municipal Corporation Indore vs. K.N. Palsikar. See AIR 1995 SC 1357 title P.Udayani Devi vs. ::: Downloaded on - 15/04/2017 21:23:56 :::HCHP 8 V.V.Rajeshwara Prasad Rao and another. See 2002 SC 1004 title Gurdial Singh vs. Raj Kumar Anjela. In view of above stated facts and case law cited supra it is held that order of .
learned Rent Controller is not perverse.
13. Submission of learned Advocate appearing on behalf of revisionists that application for recalling the witnesses can be moved even after closure of evidence and on this ground revision petition be allowed is rejected of being devoid of any force for the reasons hereinafter mentioned. It is well settled law that power of Court under rt Order 18 Rule 17 CPC is discretionary and ought to be exercised with greatest care and only in exceptional circumstances. It is also well settled law that Court ought not to recall a witness at the instance of party in order to fill up lacuna in the evidence already adduced. See 1993(2) SLC 106 H.P. title Smt. Krishana vs. Smt. Vimal Chopra. See AIR 1978 Allahabad 515 title Altaf Hussain vs. Nasreen Zahra. In view of above stated facts and case law cited supra point No.1 is answered in negative.
Point No. 2 (Relief)
14. In view of findings upon point No.1 revision petition is dismissed. Order passed by learned Rent Controller dated 27.3.2015 is affirmed. Parties are left to ::: Downloaded on - 15/04/2017 21:23:56 :::HCHP 9 bear their own costs. Parties are directed to appear before learned Rent Controller on 2.11.2016. Observations will not effect the merits of case in any manner and will be strictly .
confined for disposal of present revision petition. Record of learned Rent Controller be sent back forthwith along with certified copy of order. Revision petition is disposed of. All pending miscellaneous application(s) if any also stands disposed of.
of
(P.S.Rana),
October 19,2016(ms)
rt Judge.
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