Raman Jain vs Raj Kumar Mehra, & Anr.

Order under challenge in this petition is Annexure P-7 whereby learned Rent Controller, Shimla has dismissed an application registered as CMA No. 107-6 of 2017 in case RBT No. 11-2 of 16/12. The application was filed by the respondent-tenant with a prayer to allow the inspection of building No. 84 in which the demised premises i.e. shop at Mall Road level being run by the petitioner-tenant under the name and style of "M/S Raman Jewellers" is situated by Sh. Sanjeev Sharma, Architect. Learned Rent Controller, Shimla has dismissed the application with the following observations:

"11. Be it noted that the premises in question in the present petition is the shop between the shop occupied by the petitioners/non-applicants on one side and the shop occupied by Sh. Surinder Mohan son of Sh. Trilok Chand on the other side and not whole of the building No. 84, The Mall, Shimla. The respondent/applicant has not pleaded that how and why the inspection of whole building No. 84, the Mall Shimla is necessitated and imperative in the present case for adjudicating controversy. Therefore, in the absence of any reasonable and plausible ground pleaded and mentioned by the respondent/applicant, a direction cannot be passed to the petitioners/non-applicants to permit and enter Sh. Sanjeev Sharma Expert into the whole of the building No. 84 which is not in dispute inter-se the parties coupled with the fact that the respondent/applicant has not bothered to file the present application from 4.1.2013 when Sh. B.C. Sharma, expert as witness of the petitioners/non-applicants was examined as their witness and report issued by him was exhibited as Ext. PW-4/A and there is no plausible ground shown on behalf of the respondent/applicant and thus, it amounts as a sheer negligence on the part of the respondent and it cannot be cured at this belated stage, coupled with the fact that the provisions as contained under Order 39 Rule 7 CPC are applicable in proceedings initiated under Order 39 Rule 1 and 2 Code of Civil Procedure Code. Thus, keeping in view the present situations and circumstances of the present case and in view of the aforesaid reasons and discussion, the present application cannot be said to be maintainable and it merits dismissal and it is dismissed accordingly with no order as to costs. The application stands disposed off. It be tagged with the main case file."

Learned Rent Controller, Shimla has not committed any illegality or irregularity in observing that when the disputed premises, a sort of building No. 84 is situated at Mall Road level, no permission for inspection of the entire building in which besides own residence of the respondents-landlords, the tenants are also residing. The observations made by learned Rent Controller, Shimla that there is delay in filing the application as the landlord-respondents have examined their expert long back on 4.1.2013 also carry substance. However, irrespective of it, the petitioner-herein who is tenant may not be condemned unheard and the controversy in the main petition is decided more effectively and judiciously, this Court feels that the inspection of that part of building No. 84 which is at The Mall Road level and comprising own shop of landlord-respondents, being run under the name and style of "M/S Nathu Ram and Sons" as well as demised premises i.e. "M/S Raman Jewellers" would serve the ends of justice. Learned counsel representing the parties on both sides have also readily agreed for such arrangement proposed by this Court.

Therefore, without going to the merits of the case, this petition is disposed of with the direction that the respondents-landlord shall allow the inspection of that portion of building No. 84 abutting The Mall Road by Sh. Sanjeev Sharma, Architect or any other Architect, if Mr. Sharma is not free or available on Monday the 4th September, 2017 at 4:15 PM in the presence of Sh. Satyen Vaidya, learned Sr. Advocate representing the petitioner-tenant and Mr. Naresh Sharma, Advocate learned counsel representing the landlord-respondents. The Expert after spot inspection shall prepare the report which shall be filed by the petitioner-tenant in the Court of learned Rent Controller, Shimla on or before 6th September, 2017 positively and the expert, if so advised be examined on 7th September, 2017, the day when the rent petition is stated to be listed before learned Rent Controller, Shimla for arguments. In the event the Expert is produced by the petitioner-tenant on the date fixed, learned Rent Controller, Shimla shall record his statement and thereafter to proceed further in the matter including hearing final arguments. On the failure of the petitioner-tenant to produce the expert on the date fixed, his right to produce and examine him shall stand closed automatically.

With the above observations, the petition is disposed of so also the pending application(s), if any. Copy Dasti.