Indian Kanoon - Search engine for Indian Law

5. In the present appeal, learned counsel for appellants argued that the impugned order to the extent of closing right of the appellants to lead evidence is not sustainable in the eyes of law. Learned counsel for appellants contended that on 16.01.2019 when the matter was called, he requested for a passover in order to bring the cost but the learned Rent Controller proceeded with and closed right of the appellants to lead evidence. It was also argued that the Hon'ble Supreme Court in Manohar Singh vs D. S. Sharma (cited in the impugned order) held that as a consequence of non-payment of cost, material already on record cannot be ignored, so the application under Order IX Rule 13 CPC ought to have been decided on its merits.

6. On the other hand, learned counsel for respondents emphatically stated that no passover was sought on 16.01.2019 on behalf of the present appellants and plea to that effect has been falsely raised in this appeal. Learned counsel for respondents also referred to certain photographs placed on record which reflect that the tenanted premises already stand demolished and therefore, according to respondents the appeal has become infructuous. Learned counsel for respondents argued that the appellant is flogging the dead horse to extort money from the respondents.

10. It is nobody's case that simply because of non-payment of costs, the learned Rent Controller proceeded to summarily dismiss the application under Order IX Rule 13 CPC. Rather, as mentioned above, the application under Order IX Rule 13 CPC was decided on merits and that order also has been challenged by way of separate appeal.

11. Submission of learned counsel for appellants that on 16.01.2019 he had requested for passover so that he could bring costs is completely contrary to record. As mentioned above, according to the counsel for respondents no such passover request was made. Accepting such contention of learned counsel for appellants would be abrogating the sanctity of judicial record. In the case of State of Maharashtra vs Ramdass Sriniwas Nayak, AIR 1982 SC 1249, the Hon'ble Supreme Court held that if in a case factual matrix as to what transpired during the hearing is wrongly recorded in judicial proceedings, then the only way to get it rectified is to immediately approach the concerned court, otherwise, the matter must end there and it is not open to the party in appeal to canvass that factual aspects recorded in the proceedings are wrong. In response to a specific query, learned counsel for appellants admitted having never approached the learned Rent Controller with his claim that he had requested for a passover which had not been recorded in the impugned order. Therefore, I am unable to believe learned counsel for appellants on this count.