Ashok Kumar Through L.Rs. vs Jaipal Gupta

Indermeet Kaur, J.—There are three suits pending inter se between the parties. One suit has been filed by the landlord Jaipal Gupta i.e. suit No. 171/07/99 seeking possession, mesne profits and damages qua the suit property. The suit premises have been depicted in redline in the site plan and forming a part of shop No. 36, Sarojini Nagar Market, New Delhi which has been filed along with the suit. Two other suits have been filed by the tenant Ashok Kumar. The first suit No. 553/06/99 seeks perpetual injunction against the Defendant restraining the Defendant from dispossessing him from suit premises. The second suit filed by the tenant is suit No. 552/06/99 seeking a mandatory injunction against the Defendant directing him to remove the gate fixed by him at point X in the suit property and to remove the lock put by him over the lock of the Plaintiff on the main gate as a result of which the Plaintiff is not able to enjoy the suit premises.

In all the three petitions before this Court the aggrieved party is the tenant.

CM (M) No. 1503/2010

The first order assailed by the tenant Ashok Kumar is the order dated 27.9.2010 vide which permission to produce additional evidence along with documents before the court had been rejected. The tenant had filed an application seeking permission to place on record (i) Tehbazari ticket dated 20.10.1987 of the MCD; (ii) letter dated 24.9.1998 of purchasing goods from Brijwasi Art Press Ltd; (iii) photographs of the gas cylinder used in the shop; (iv) photographs showing electricity connection in the shop. Permission had also been sought to place on record the affidavits of customers who had been visiting shop of the tenant showing that in fact he was carrying on business from the said shop. This application had been rejected vide the impugned order dated 27.9.2010.

The documents sought to be placed on record have also been perused by this Court. On a specific query put to the learned Counsel for the Petitioner as to how they would advance the case of the Petitioner that he was a tenant in the suit property and not a licencee, the learned Counsel for the Petitioner has in fact No. answer. Admittedly, the Plaintiff evidence was closed in this case on 04.12.2002. It was not even the case of the Defendant that the documents which had been sought to be adduced by him were not within his knowledge at the time when he filed his written statement or as to how he has come into possession of these documents on a later date. Even otherwise perusal of these documents shows that they do not advance the submission of the Defendant that he is a tenant and not a licencee. The stage for filing documents was long over; this application had been filed in the year 2008. No. cogent explanation having been furnished for seeking permission to file documents at such a belated stage, the impugned order had rightly dismissed the said application. This order calls for No. interference.

CM(M) No. 1504/2010

The second order impugned before this Court is the order dated 27.9.2010 vide which the application filed by the tenant u/s 151 of the CPC seeking permission to cross-examine the Plaintiff Jaipal Gupta had been dismissed. Record shows that the matter had been fixed for cross-examination of Jai Pal Gupta on 04.12.2007. Jaipal Gupta/landlord was under examination by a local commissioner; examination was being conducted at the residence of Jaipal Gupta. The contention of the tenant/Ashok Kumar in his application was that the counsel Ms. Seema Bengani was busy in the Apex Court and she had requested through her junior to take an adjournment in the said matter; her Junior without her instructions conducted the cross-examination of the witness; this cross-examination was not sufficient; as such permission has been sought for further cross-examination of Jaipal Gupta. Affidavit of the counsel Ms. Seema Bengani has also been filed. This application had been dismissed by the impugned order.

Record shows that Jaipal Gupta had been cross-examined at length on behalf of the Defendant on 04.12.2007; this cross-examination had been effected by Ms. Bhumika Tandan, Advocate, on behalf of the Defendant. The witness is 88 years of old and that is why his cross-examination was being conducted at his residence by the local commissioner. Cross-examination of Jaipal Gupta stood closed on 04.12.2007. Application seeking his re-examination was filed on 14.02.2008. Even in this application there is No. averment as to why this application was filed so belatedly; further what were the questions which remain yet to be asked from the said witness have also not been mentioned in this application. This application was rightly dismissed; filling up the lacuna is No. reason to exercise discretion in favour of such an erring party. Impugned order suffers from No. infirmity. It does not call for any interference. Dismissed.

CM(M) No. 1505/2010

The third order assailed before this Court is also the order dated 27.9.2010; the tenant is aggrieved with the order vide which his application under Order 26 Rule 9 of the CPC seeking appointment of a local commissioner had been dismissed. The application seeking appointment of the local commissioner had been filed on 18.7.2008. By way of this application, it has been prayed that a local commissioner be appointed to carry out inspection of the suit premises and submit a report about the location, construction and facilities which are available to the tenant in the premises. This application was dismissed on the ground that it is for the parties to lead their evidence in a suit of the present nature; it is not for the court to collect evidence on behalf of one party. As already noted supra the Plaintiff evidence had been closed on 04.12.2002. This application had been filed apparently as one more last ditch effort on the party of the tenant to delay the proceedings as far as possible. Impugned order dismissing this application calls for No. interference.

All the aforenoted petitions are disposed of in the above terms.