Delhi High Court
Scooter India Ltd. vs Subhash Chander Pahwa on 25 February, 1993
Equivalent citations: 50(1993)DLT84
JUDGMENT Santosh Duggal, J.
(1) This application under Order 41, Rule 27CPC was filed by the appellant Along with the second appeal against the order passed by the Rent Control Tribunal, Delhi dated 30/03/1991whereby the appeal filed by the respondent herein was allowed.
(2) A brief resume of the facts reveals that the eviction petition was filed by the respondent herein under clause (b) of proviso to Section 14(1) of the Delhi Rent Control Act, (for short 'the Act'). The eviction petition was filed against the tenant M/s. Scooter India Ltd. (appellant herein). It is to be noted that the alleged Sub-tenant Shri V.S. Singhal was neither imp leaded in the eviction petition nor in the appeal filed by the landlord/respondent, before the Rent Control Tribunal.
(3) The appellant prays for grant of an opportunity to produce additional evidence, which is in the nature of documentary evidence, spelt out in details in the application itself.
(4) I have heard today learned Counsel for the parties on thisapplication. I consider it expedient for the proper appreciation of the appeal that this application under Order 41, Rule 27 Civil Procedure Code is disposed ofindependently, as the suggestion made at the outset by Mr. Bawa, that it could be considered during hearing of the appeal, does not seem to be feasible for the reason that in case any additional evidence is to be allowed then it is in the interest of the parties, particularly the landlord/respondent that that evidence is taken on record, before the appeal comes up foradmission, as it is presently at the show cause stage.
(5) Shri L.R. Gupta, Senior Counsel, has argued in respect to the documents sought to be proved by way of evidence. First in the series is the copy of the letter dated 2/06/1979 whereby allegedly the terms of original agreement of 1974 between the appellant M/s. Scooter India Ltd.and the occupant Shri V.S. Singhal were modified. Mr. Gupta has pointed out that the appellant as respondent in the eviction petition had examined the Regional Sales Manager. Shri C.M. Mehta, as RW-1 and inspite of the originalagreementfact that he stated in cross-examination that the terms of the original agreement of agency. Ex. PX-1, were changed subsequently by a letter, he was not further asked any questions in respect thereto, much less asked to produce the same, and that it was only the occupant, Shri V.S. Singhal, who was questioned about this letter, but the matter was left at that when he said that the said letter was not traceable. The learned Counsel further argued that inspite of the fact that the company official appeared as awitness, he was not asked to produce the copy of that letter. The learned Rent Control Tribunal for the first time, referred to that letter, and held that adverse inference had to be drawn for the reason that the copy of the letter had not been produced by the company, tenant in the premises. The learned Counsel contended that it was settled law that in case any adverse inference is drawn against a party for non.-production of a document,regarding which that party was not called upon at any earlier stage to produce the same, then that party is entitled to seek permission of the Court to produce it so that the document comes on record, and the finding of adverse inference does not remain sustainable.
(6) Mr. Bawa in respect to this letter pointed out that it purports to be an office copy, but the photo copy on record does not indicate that it is an office copy nor it bears any file number or dispatch number nor does it seem to be on a letter head of the appellant company, nor does it indicate under what authority the signatory: Shri B.S. Bhargava had issued thatletter.
(7) The questions, which Mr. Bawa has raised, are questions of appreciation of evidence about the genuineness and authenticity of thatletter, which is a matter having a bearing on merits. Presently, the issue is at a preliminary stage where the appellant should be given opportunity to produce that letter for the short reason that the Rent Control Tribunal has drawn adverse inference, simply for non-production thereof.
(8) I am satisfied that in view of this finding of the Rent Control Tribunal on this aspect of the matter, the appellant deserves to be allowed one opportunity to produce office copy of the letter dated 2/06/1979,and it shall be for them to produce all the supporting evidence to prove the authenticity of this letter as well as the authority of the signatory as also the factum that it was actually issued to Shri V.S. Singhal by way of modification or novation of the original agency agreement.
(9) The next document, which the appellant seeks to produce onrecord, is the sales-tax registration certificate of Delhi Sales-tax Department,whereby they want to show that the sales-tax registration of the appellant company is at the address of the tenancy premises. The plea is that this sales-tax registration is subsisting up to date.Mr. Bawa has, however, contended that this would be meaningless for the reason that it has already come in evidence that the appellant company charges sales-tax from Shri V.S. Singhal at the time the stocks are transferred to him for sale, and the sales-tax in Delhi is collected by Shri Singhal on the scooters sold by him, and duly shown in the cash memos issued by him.Mr. Gupta has, however, clarified that the sales-tax registration certificate is in respect to "Ganesh fans" which the appellant company is manufacturing in their factory at 64, Najafgarh Road, Delhi, and stocked and sold from the tenancy premises. This is an official document, and it shall be for the appellant to prove the sales-tax registration certificate by examining the official of the Sales-tax Department so that the respondent has ample opportunity to cross-examine, to be satisfied about the date of issue,subsistency or the terms of the said certificate or even the assessment order.
(10) The next lot of documents are the stock transfer documents pertaining to 'Ganese fans' which, according to appellant, are stocked in the tenancy premises at R-10, Green Park, New Delhi, and sent to differentconsignees, or appellant's own out-station outlets. Here again, the main objection by Mr. Bawa is that of proof, and the authenticity of the stock transfer documents, ft is to be noted that it will be in the interest of the appellant to prove by satisfactory evidence the authenticity of the stock transfers, with reference to the stock transfer documents, namely, the stock register and connected transfer documents, including goods receipts and rail receipts etc. (11) Another set of documents, which the appellant seeks to place on record by way of additional evidence are the gate passes showing clearance of 'Ganesh fans' manufactured by them, at the factory gate, and being sent for stocking to the tenancy premises. Some of these excise duty clearance gate passes have been produced which pertain to the years 1979, 1982 and1988. These excise duty clearance gate passes are part of the official record,and there can be no doubt about their authenticity, provided some official ofthe Excise Department is summoned with the official record to prove the authenticity of these, gate passes, and it is further directed that the appellant shall produce and prove the gate passes spread over the period immediately before the filing of the eviction petition up to date-say two or three for everyyear.
(12) It is to be noted that the plea about stocking of 'Ganesh fans' in the tenancy premises is there even in the written statement and reiterated in evidence v.
(13) In view of the above, and keeping in view the fact that the appellant is itself a Government of India undertaking, and is presumed to maintain their records in regular and due course, and in proper manner, and further that the additional evidence which is sought to be produced entirely consists of documentary record. I think it a fit case to allow the application as the aforesaid evidence appears to be relevant and material for proper appreciation of the issue to be determined, but in view of the fact that the eviction petition was filed in the year 1980, it is thought expedient in the ends of justice that a time bound direction is given to the appellant as a condition of permission for producing additional evidence, and it shall before the appellant to produce the entire evidence within title time frame fixed by this Court.
(14) It is further considered expedient that this evidence is got recorded by remitting the matter to the Additional Rent Controller, Delhi, who shall record the evidence produced by the appellant in terms of this order, and also the evidence, if any produced in rebuttal, by the respondent herein, who is petitioner in the main evidence petition, and then transmit the record of the case Along with the additional evidence recorded, and his report, to this Court for the purposes of disposal of the appeal.
(15) It is, therefore, directed that the lower Court records be sent back immediately to the concerned Additional Rent Controller with a copy of thisorder, to be placed before the Additional Rent Controller concerned on16-3-1993, and since both the parties are today represented by Counsel, It is directed that they shall appear before the said Additional Rent Controller on the date fixed, namely, 16-3-1993, either personally or through Counsel,to take further date for the evidence.
(16) The Additional Rent Controller shall ensure that the appellant produces and closes evidence within three months of the date when the file is put up before him, and shall, in the first instance, give about four to five weeks date to the appellant so that evidence can be summoned and thereafter given two more opportunities for producing evidence but it will in no case go beyond three months.
(17) The appellant shall file copies of all the documents of whatever they intend to produce and prove, by way of additional evidence, on the first date before the Additional Rent Controller, namely, 16-3-1993, together withan index, with a copy direct to learned Counsel for the respondent. The respondent shall be given opportunity to produce evidence in rebuttal, if any sought by them, and then shall be given two months' for this purpose, and two to three opportunities would also be provided to the respondent to summon official witnesses, if any.
(18) At this stage Shri Gupta says that the summer vacation for the Civil Court this year shall commence after 29th May i.e. before the expiry of three months time fixed by this Court. In case any exigency of thesituation, such as non-service of the official witnesses, requires, then the three months, time, because of the intervening summer vacation shall be treated to extend up to 5/07/1993 for the appellant to close theirevidence. The respondent shall get two months' time from the date the appellant closes evidence, and the Additional Rent Controller shall transmit the record with additional evidence and his report, within a month of parties closing their evidence.
(19) The appeal be listed in this Court on 14/10/1993 for report and further directions.
(20) Cm 746 of 1991 is allowed in the aforesaid terms with costs.Counsel's fee. Rs. 2000.00.