Swaran Lata Kuthiala vs Sunita Chabra and Others

Rajiv Sharma, J.

This petition is instituted against the order dated 8.8.2012 rendered by the learned Rent Controller (7), Shimla in case No. 23-2 of 09/2004.

"Key facts" necessary for the adjudication of this petition are that predecessor-in-interest of the petitioner Smt. Swaran Lata Kuthiala preferred a petition for eviction under Section 14 of the Himachal Pradesh Urban Rent Control Act against the contesting respondents on the grounds of arrears of rent and also that the respondents have ceased to occupy the premises continuously for nine years before the filing of the petition.

The petition was contested by the respondents. Petitioner filed the rejoinder.

Petitioner moved an application under Order 26 Rule 4 of the Code of Civil Procedure for recording her statement on commission. The application was contested by the respondents. The petitioner has specifically averred in the application that she was more than 78 years old and she did not keep good health. The application has been rejected by the Rent Controller on the ground that petitioner Smt. Swaran Lata Kuthiala has not submitted any medical certificate. However, fact of the matter is that as per averments contained in the application, petitioner remained hospitalized w.e.f. 28.5.2012 to 5.6.2012.

The approach of the Rent Controller should have been humane. The Rent Controller could not be oblivious of the fact that the petitioner who wanted herself to be examined on commission was an old lady and could not even climb the stairs. When the affidavit was filed along with the application under Order 26 Rule 4 of the Code of Civil Procedure, she had to come in a car and the affidavit itself was attested in the car. She was chronic patient of Asthma and most of the time she was on oxygen.

Petitioner is also aggrieved by orders dated 6.10.2012, whereby the Rent Controller has closed the evidence of petitioner. It is true that the issues were framed in this case on 15.5.2008 and various opportunities were granted for production of petitioner''s evidence, but the fact of the matter is that petitioner Smt. Swaran Lata Kuthiala was old and ailing. Petitioner has already submitted the affidavits of witnesses and they were to be cross-examined. Learned Rent Controller has taken a very hyper-technical approach and at least ought to have granted one more opportunity to permit the petitioner to lead evidence in the interest of justice.

Accordingly, the present petition is allowed. Orders dated 6.10.2012 and 8.8.2012 are quashed and set aside. Though, the petitioner Smt. Swaran Lata has died, but in the interest of justice, her legal heir is permitted to be re-examined since he has stepped into the shoes of landlady Smt. Swaran Lata. Rent Controller is directed to afford one more opportunity to the petitioner to lead his evidence. The parties, through their counsel, are directed to appear before the trial Court on 28.4.2015. Pending application(s), if any, are also disposed of.