Ashok Kumar vs Kaushlaya Devi

Rakesh Kumar Jain, J.—This order shall dispose of two revisions bearings Civil Revision No 40 of 2011 titled as Ashok Kumar v. Kaushalya Devi and Civil Revision No. 63 of 2010 titled as Sanjiv Kumar v. Kaushalya Devi, as a common question is involved in both the cases.

Smt. Kaushalya Devi, who is the landlady in both the cases, sought eviction of her tenants on the grounds of non-payment of rent and personal necessity. In both the cases, she filed an application dated 3.9.2009 to seek permission of the Court to examine B.L. Garg, Building Expert to prove his report with regard to space available on the site in dispute as the tenants were not permitting to take the measurement when he visited the spot and obstructed him from preparing the site plan. Reply to the application was filed by the tenants. The said application was dismissed by the Rent Controller on 13.11.2009 observing as under :-

To substantiate the ground of ejectment of personal need the examination of building expert is not relevant piece of evidence. If the petitioner ultimately succeeds in getting the eviction of the respondent he would be at liberty to demolish the building and to make whatever use the property he wants. However to say that to substantiate his ground of personal necessity qua the demised property the examination of building expert is required to give his technical report does not sound good to any reason though application is devoid of any merits and stands dismissed.

The aforesaid order remained unchallenged. Thereafter, the landlady, on her own, sought to examine B.L. Garg, Building Expert and Amarjit Singh, Photographer as her witnesses and tendered in evidence their affidavits in examination-in-chief, which was objected to by the tenants on the ground that B.L.Garg, Building Expert cannot be examined as his examination was earlier declined by the Rent Controller vide order dated 30.11.2009, which has attained finality. The objection, however, was turned down by the Rent Controller by way of impugned order on the ground that judicial process should not be hindered if the landlady wanted to lead her evidence.

Learned counsel for the petitioner has submitted that the impugned order could not have been passed in view of an order already passed by the Rent Controller on 30.11.2009 because if the impugned order is allowed to be sustained then it would tantamount to review of the earlier order, which is not permissible under the East Punjab Urban Rent Restriction Act, 1949 (for short ''the Act''). It was also alleged that the said witnesses are not shown in the list of witnesses in terms of Order 16 Rule 1 of the Code of Civil Procedure, 1908 (for short ''CPC'').

On the other hand, learned counsel for the respondent has submitted that the Court has ample power to allow the witnesses to be examined under Order 16 Rule 14 of the CPC.

I have heard both the learned counsel for the parties and have perused the record.

The only question involved in both the revision petitions is "as to whether a witness whose examination has been declined by an order of the Court, which remains unchallenged, could be examined by the party on its own".

To my mind, such a course is not open to the party to examine the witness on its own once permission to examine particular witness has been declined by an order of the Court, which has become final between the parties. If the landlady, who really wanted to examine the building expert, whose permission was declined by the Rent Controller then she should have challenged the said order by way of revision otherwise it is not open to her to examine the said witness on her own.

Thus, the impugned order is patently illegal insofar as examination of B.L. Garg, Building Expert is concerned but so far as Amarjit Singh, Photographer is concerned, there is no order against him passed by the Rent Controller earlier, therefore, there is no hurdle before the landlady to examine this witness.

With these observations, both the revision petitions are disposed of.

A photocopy of this order be placed on the file of another connected case.