Bhupal Singh and Another vs Jai Narayan

Vijay Bishnoi, J.—This writ petition has been preferred by the petitioners with the prayer that the application filed by the petitioner u/s 21 of the Rajasthan Rent Control Act, 2001 (hereinafter referred to as ''the Act of 2001'') read with Order 7 Rule 14(3) C.P.C. for taking documents on record before the Rent Tribunal, Bhilwara in Case No. 79/2007 may be allowed and the documents presented with the said application may be taken on record. Brief facts of the case are that the petitioner-applicants filed an application u/s 9(e & i) of the Rajasthan Rent Control Act, 2001 for eviction of shop, description of which has been given in the application and for mesne profit against the respondent alleging that the petitioner No. 1 is the owner of the disputed shop and son of the respondent was a tenant of that shop and he handed over the possession of the shop to the respondent without Staking permission from the petitioner-applicants. It is further claimed in the eviction petition that the petitioners are in requirement of the disputed shop for expansion of their business.

The respondents preferred written statement to the eviction petition and averred that the shop was given on rent to him and his son by the father of the petitioner No. 1 and, therefore, the allegation of sub-tenancy are not correct. It is also contended by the respondent in the reply that the petitioner No. 2 is not the son of the petitioner No. 1 and as such the claim of bonafide necessity is not tenable. The petitioners filed rejoinder to the reply of the respondent stating that the petitioner No. 2 is adopted son of the petitioner No. 1 and collecting the rent from the respondent regularly and, therefore, in that capacity, he is landlord. In response to the rejoinder, sur-rejoinder was filed by the respondent.

The evidence of the petitioner-applicants was started on 21.10.2010, however, the same was deferred due to non-availability of the original documents. At this stage, the petitioner-applicant moved an application u/s 21 of the Act of 2001 read with Order 7 Rule 14(3) C.P.C. for taking certain documents on record. The documents sought to be taken on record are photostat copy of voter I.D. card and PAN card pertaining to petitioner No. 2.

During the pendency of the said application, the respondent moved an application before the Rent Tribunal, Bhilwara and prayed for formation of issues.

The learned Rent Tribunal rejected the application preferred by the petitioner u/s 21 of the Act of 2001 read with Order 7 Rule 14(3) C.P.C. vide order dated 20.10.2011, but allowed the application preferred by the respondent seeking formation of the issues by a separate order dated 20.10.2011.

Being aggrieved with the dismissal of the said application filed u/s 21 of the Act of 2001 read with Order 7 Rule 14(3) C.P.C., the petitioners have preferred this writ petition.

The learned counsel for the petitioners has argued that the documents sought to be produced on record by the petitioners are copy of voter I.D. Card and PAN card pertaining to petitioner No. 2 and if those documents are taken on record, no prejudice will be caused to the opposite party. It is also argued by learned counsel for the petitioners that the evidence of the petitioner No. 1 has not yet been concluded and the same has been deferred for production of original documents, but the learned trial court has rejected the application of the petitioners for producing the aforesaid documents in an illegal manner while holding that by production of these documents, the petitioner No. 1 wants to fill the lacunas of his statement, recorded on 21.10.2010. The learned counsel for the petitioners has also argued that in rejoinder filed by the petitioners in response to the reply of the respondent, it is clearly averred that the petitioner No. 2 is adopted son of the petitioner No. 1 and, therefore, it cannot be said that the documents sought to be produced by the petitioners are not relevant. The learned counsel for the petitioners has, therefore, prayed that the application preferred by the petitioners u/s 21 of the Act of 2001 read with Order 7 Rule 14(3) C.P.C. for taking voter I.D. Card and PAN card on record, belonging to the petitioner No. 2, be allowed while setting aside the order dated 20.10.2011 passed by the Rent Tribunal rejecting the aforesaid application of the petitioners.

Per contra, learned counsel for the respondent has supported the order passed by the learned trial court on 20.10.2011 rejecting the application preferred by the petitioner for taking certain documents on record while arguing that by way of producing the said documents, the petitioners want to fill in the lacuna left in his evidence and the same cannot be allowed. No party can be allowed to fill in the lacunae of his evidence by producing documentary evidence. It is further argued that in the eviction application, the petitioners have not stated that the petitioner No. 2 is adopted son of petitioner No. 1 and, therefore, in absence of any such pleadings, the petitioners cannot be allowed to produce the documents for proving the fact that the petitioner No. 2 is adopted son of petitioner No. 1.

Learned counsel for the respondents has placed reliance upon the judgment of Banarsi Dass Vs. Om Parkash and Others, judgment of Allahabad High Court rendered in case of Smt. Sulochana Vs. Ram Kumar Chauhan, judgment of Orissa High Court rendered in case of Ramachandra Das Vs. Hiralal Modi, and judgment of this Court rendered in case of Chetan Das Vs. Smt. Anusuya Tak reported in 2013 (1) DNA (Raj.) 467.

Heard learned counsel for the parties and perused the order dated 22.10.2011.

It is true that the petitioner No. 1 has not stated in the reply that the petitioner No. 2 is his adopted son and he has simply pleaded that the petitioner No. 2 is his son and he is in necessity of disputed shop for himself and for his son for the purpose of expansion of his business. However, the respondent claimed in his reply that the petitioner No. 2 is not the son of petitioner No. 1 and he has no issue. In the rejoinder, the petitioner No. 1 stated that the petitioner No. 2 is his adopted son. In response to the contention of the rejoinder, the respondent filed sur-rejoinder wherein he specifically contended that the petitioner No. 2 is not the adopted son of the petitioner No. 1 and he has stated false fact in the rejoinder.

When the petitioner No. 1 stated in the rejoinder that the petitioner No. 2 is adopted son and the respondent denied the said fact by filing sur-rejoinder, the petitioners should have been granted opportunity to prove the said fact by way of filing the documentary evidence to this effect.

It is also to be noted that in the present case, the evidence of the petitioner No. 1 has not been concluded and his statements were recorded in part and deferred for production of original documents, then if at this stage, the petitioners are allowed to produce some documents on record, such as voter card and PAN Card of the petitioner No. 2, the respondent will not be prejudiced because he will get every opportunity to cross-examine the petitioner No. 1 in respect of the documentary evidence sought to be produced by the petitioner No. 1. Even otherwise also, every party to litigation should get full opportunity to prove or defend his case and looking from this aspect, the learned trial court should have allowed the application of the petitioner for production of voter ID Card and PAN Card pertaining to the petitioner No. 2 on record.

The facts of the judgments cited by the learned counsel for the petitioner are quite distinguishable from the fact of this case, therefore, the same have no application to the present case.

In case of Smt. Sulochana (supra), the learned Single Judge of Allahabad High Court has quashed the order passed by the lower court on the ground that cruelty has not been pleaded in the divorce petition. In the case in hand, the petitioner No. 1 has stated in his rejoinder that the petitioner No. 2 is his adopted son and the said fact is specifically denied by the respondent by filing sur-rejoinder.

In the case of Ramchandra Dass (supra), the learned Single Judge of Orissa High Court has allowed the second appeal of the appellant on the ground that there is variance between the pleadings of the proof. In the present case, still the evidence of the petitioner No. 1 is going on and, therefore, it cannot be presumed that there is variance between the pleadings and evidence.

In case of Banarsi Dass (supra), the learned Single Judge of the Punjab and Haryana High Court has held that the photo copy of the documents could not be produced as secondary evidence. In the present case, the petitioner has sought to produce the photostat copy of voter ID cared and PAN card pertaining to the petitioner No. 2, however, if he failed to produce the originals of the said documents during the course of evidence, the learned Tribunal can very well reject the same while treating those documents as inadmissible in evidence.

In the case of Chetan Dass (supra) rendered by the coordinate Bench of this Court, the petitioner has challenged the final orders passed by the Rent Tribunal as well as Appellate Rent Tribunal, however, in the present case, the eviction petition has not been finally decided. In view of the above discussions, this writ petition is allowed. The application preferred by the petitioner u/s 21 read with Order 7 Rule 14(3) C.P.C. on 19.3.2010 is allowed. The documents sought to be produced on record are directed to be taken on record. Consequently, the order dated 20.10.2011 passed by the Rent Tribunal of rejecting the aforesaid application preferred by the petitioner is quashed and set aside. No order as to costs.