Prem Chand alias Neeta vs Ram Saran

Rakesh Kumar Garg, J.

C.M. No.28597-98-CII of 2011:

Applications are allowed subject to all just exceptions. The documents attached are taken on record.

Civil Revision No.6387 of 2011:

This is tenant''s revision petition challenging the order dated 23.8.2011 of the Appellate Authority, whereby applications filed by the petitioner-tenant seeking permission to lead additional evidence and for appointment of Local Commissioner to report about the factual position of the building in question specifying the number of rooms and floors, have been rejected.

The brief facts emerging out from the impugned order are that the respondent-landlord filed an ejectment application against the petitioner-tenant on the ground that the petitioner was liable to be evicted from the demised premises as he has not paid the arrears of rent and that the demised premises were required for the personal use of the respondent-landlord and his family. The ejectment petition was contested by the petitioner-tenant.

After hearing learned counsel for the parties and considering the evidence on record, the Rent Controller held that there exists a relationship of landlord and tenant between the parties but the tender of rent made by the petitioner was not short. However, the Rent Controller found that the respondent-landlord required the demised premises for his personal use and occupation and thus, petitioner was ordered to be evicted on this ground.

The petitioner filed an appeal before the Appellate Authority. During the pendency of the appeal, the petitioner filed two applications, one under Order 41 Rule 27 read with Section 151 CPC seeking permission to lead additional evidence and another under Order 26 Rule 9 read with Section 151 CPC for appointment of Local Commissioner to report about the factual position of the building in question, specifying the number of rooms and floors.

In the first application for leading additional evidence, the petitioner averred that a wrong site plan was filed by the respondent-landlord showing only three floors of the building in question, whereas there were four floors besides the ground floor. It was further averred that during the trial, the petitioner was not aware about the technicalities involved in the site plan and for that reason, correct site plan could not be produced before the Rent Controller despite exercise of due diligence and thus, in order to make facts more clear, the petitioner wanted to place on record the photographs of the building in question and therefore, an application was filed placing on record the documents attached as Annexures A-1 to A-10. The said application was contested by the respondent-landlord denying that incorrect site plan was produced. It was submitted that the application in hand was filed by the tenant only to delay the proceedings. It was also denied that the site plan now sought to be produced was correct. It was stated that the photographs of the building in question were not required to be brought on record. All other averments were denied.

In the second application, for appointment of Local Commissioner, the petitioner averred that the respondent-landlord in order to mislead the Court had filed wrong site plan and thus, to know the actual and factual existing position, it was necessary to appoint a Local Commissioner and to seek his report about the number of rooms and floors of the building in question. In reply to the said application, the respondent-landlord denied the averments of the application and prayed for dismissal of the said application.

After hearing learned counsel for the parties, both the applications were dismissed by the Appellate Authority observing as under:

I have perused the case file very carefully including the petition for ejectment as well as the written statement furnished by the applicant-appellant-tenant before the learned Rent Controller. The respondent-landlord in the ejectment petition has nowhere specified the number of floors in the building in question. Further, though in the application in hand it has been mentioned by the applicant-appellant-tenant that wrong site plan has been attached along with rent petition showing only three floors of the building in question, whereas there are four floors besides the ground floor, but from the perusal of the site plan Ex.P1 relied upon by the respondent-landlord it is revealed that only first floor besides ground floor and basement has been shown by the respondent-landlord. As such, since there is no specific plea of the respondent-landlord regarding the number of floors in the building in question, the contentions of the applicant-appellant-tenant that the respondent-landlord has tried to mislead the learned Rent Controller, is without merit and as submitted by the learned counsel for the respondent-landlord it seems that only in order to delay the proceedings the application in hand has been filed by the applicant-appellant-tenant. Admittedly, the applicant-appellant-tenant was being represented by his counsel before the learned Rent Controller and as such, the plea of the applicant-appellant-tenant that he was not aware of the technicalities involved in the site plan and thus, could not produce the correct site plan before the learned Rent Controller appears to be an excuse to create evidence in his favour by moving the application for leading additional evidence.

As mentioned earlier, the applicant-appellant-tenant has also sought permission to place on record the photographs of the building in question, but as in the application in hand, the applicant-appellant-tenant has failed to explain under what circumstances he could not produce the said photographs before the learned Rent Controller and as it is nowhere mentioned in the application in hand when and who took these photographs, in my considered opinion the application for leading additional evidence moved by the applicant-appellant-tenant is nothing but abuse of process of court and in the absence of any justifiable reason for leading additional evidence, the same is hereby dismissed.

It is well settled law that local commissioner cannot be appointed to create evidence in favour of any of the parties to the suit. The applicant-appellant-tenant wants to get the local commissioner appointed to report about the actual and factual position of the building in question qua rooms and prove floors in the building in question. As in the separate application filed for leading additional evidence it is the specific plea of the applicant-appellant-tenant that in fact there are four floors besides ground floor in the building in question, the present application for appointment of local commissioner to report about the number of rooms and floors cannot be allowed as it would amount to creating evidence in this regard for the applicant-appellant-tenant. In view of above discussion as I do not find merit in both the applications moved by the applicant-appellant-tenant, the same are hereby dismissed.

Aggrieved from the aforesaid order, the instant revision petition has been filed before this Court. It may be relevant to notice at this stage that the petitioner-tenant by way of C.M. No.28598-CII of 2011 has placed on record a site plan as Annexure P-3, which according to him is the correct site plan of the demised premises and was sought to be placed on record of the Appellate Authority by way of additional evidence. By referring to the aforesaid site plan, counsel for the petitioner has submitted before this Court that there are 5 floors of the demised premises i.e. Ground Floor, First Floor, Second Floor, Third Floor and Fourth Floor and thus, it has been argued that the site plan (attached as Annexure P-2 with the instant revision petition) as placed by the respondent-landlord before the Rent Controller, which has shown only three floors i.e. Ground Floor, First Floor and Second Floor, is incorrect. However, the aforesaid argument of the petitioner has been falsified by the photograph, Annexure P-4, shown at Page 38 of the said application, from which it is clearly visible that there are only two floors above the Ground floor i.e. First Floor and one room at the second floor. A careful perusal of the aforesaid photograph would show that there is a mamtii.e. roof of the staircase leading to the roof of the second floor which has been shown as fourth floor by the petitioner in the Site Plan, Annexure P-3, sought to be placed on record before the Appellate Authority. Even a careful perusal of the site plan, Annexure P-3, would show that the fourth floor plan shows only a mamtiabove the staircase and there is no room etc. Thus, an effort has been made by the petitioner to mislead this Court. It is well settled that a person who does not come to Court with clean hands is not entitled to any relief and is liable to thrown out of the Court at the threshold of the case.

It may also be noticed at this stage that number of rooms, as shown in the site plan produced by the respondent-landlord and sought to be placed on record by the petitioner, on the ground floor and first floor, are the same and this fact could not be disputed before this Court. Thus, even the application filed by the petitioner for appointment of Local Commissioner to ascertain the number of rooms etc. is without any basis. It is well settled that Local Commissioner cannot be appointed in favour of the any of the parties to the suit to collect evidence. From the prayer made in the application for appointment of Local Commissioner, it is clearly established that the petitioner wants to collect evidence in his favour by using the process of the Court, which cannot be allowed. Not only this, there is no specific plea taken by the respondent-landlord regarding number of floors/rooms in the building in question and therefore, the contention of the petitioner that the site plan produced by the respondent-tenant was not correct or there was any effort to mislead the Court, is incorrect. Moreover, the petitioner was being represented by his counsel before the Rent Controller and as such, the plea taken that he was not aware of the technicalities involved in the site plan, is of no avail and appears to be an excuse to create evidence in his favour.

In this view of the matter, I find no merit in this petition.

Dismissed.