Kamaljit Singh v. Sarabjit Singh

Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.G.S.Sandhawalia, Advocate, for the petitioner. Mr.Gaurav Sharma, Advocate, for Mr.KDS Sodhi, Advocate, for the respondent. Vinod K.Sharma,J. (Oral) This revision petition by the landlord is directed against the order dated 5.11.2004 passed by the learned Rent Controller, Phagwara, vide which petition filed by the petitioner under section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (for short the Act), has been ordered to be dismissed. The petitioner/landlord sought eviction of the respondent/tenant on the plea that the petitioner was Non-Resident Indian and therefore, was entitled to immediate possession of the property for his use and occupation. The tenant/respondent appeared and filed application for leave CR No.580 of 2005 2 to defend, wherein relationship of landlord and tenant was admitted. Application for leave to defend was allowed. On coming to know, that there was defect in the petition, as the petition filed under section 13-B of the Act was not in consonance with the Act, because the petitioner had not pleaded the fact that the petitioner was owner of the property rented out for more than 5 years, which was a pre- requisite to invoke the provisions of Section 13-B of the Act, the petitioner moved an application for amendment of the petition. The application for amendment was allowed and the petitioner was permitted to plead Para No.2-A, to plead, that the petitioner was the owner of the property rented out to the respondent/tenant. for more than 5 years. This averment of the petitioner was denied in the amended written statement, consequently Issue No.1-A was framed to the following effect: 1-A Whether the petitioner is owner of the property where demised shop is situated?OPA The petitioner in support of his contention, placed on record sale deed dated 10.4.1985 Ex.PX and sale deed dated 19.4.1985 Ex.PX/1 to prove, that he was owner of the land purchased by him for more than 5 years. However, the person appearing on behalf of the petitioner, except for producing the sale deeds was not able to depose with regard to any other fact except, that the sale deeds were executed by the vendor in favour of the petitioner. CR No.580 of 2005 3 Learned Rent Controller on appreciation of evidence held, that the petitioner failed to discharge the onus to prove that he was owner of the demised premises for a period of more than 5 years as he was not able to connect the property rented out to the tenant with the sale deeds which were got exhibited in order to prove additional Issue No.1-A. The learned Rent Controller also took note of the admission made by the tenant, that the petitioner was landlord of the premises in dispute, but recorded a finding, that the relationship of landlord and tenant could not be a ground for eviction under section13-B of the Act, as in order to succeed the landlord/petitioner was required to plead and prove all the ingredients, one of which was, that he was owner of the property in dispute for a period of more than 5 years. The petitions filed against other tenants were also dismissed on this ground. Those orders have attained finality through other tenants have been evicted from premises on the ground of non-payment of rent as stated by the learned counsel for the petitioner. The petitioner along with revision filed a Civil Misc No.2242- CII of 2005 under Order 41 Rule 27 of the Code of Civil Procedure to lead additional evidence to examine the revenue officials and employees of the Municipal Council, Phagwara to co-relate the sale deeds with the property in dispute. Only plea taken in support of this application is, that the petitioner was non-suited by the learned Rent Controller for having failed to co-relate the property with the sale deeds, therefore, the petitioner be allowed to lead additional evidence, as the evidence is required for the court to reach at just decision. CR No.580 of 2005 4 It is also pleaded that the petitioner being Non-Resident- Indian could not pursue his case diligently and the witnesses now sought to be examined could not be examined for this reason. The plea taken in the application even if accepted does not make out a ground for additional evidence. The evidence to be led is not the one which was not within the knowledge of the petitioner or could not be led with due diligence, rather the stand taken is that the additional evidence is required to fill in lacunae in the case, which was left due to negligence in prosecuting the case. The evidence is not of such nature which is per se admissible, the petitioner wants to examine oral evidence, which will require the remanding of the case to learned Rent Controller. The admission that the petitioner was negligent in prosecuting the case can not be a ground to allow additional evidence, nor the additional evidence can be allowed to fill in lacunae, in view of the settled law, that the provisions of Order 41 Rule 27 of the Code of Civil Procedure, cannot be invoked to fill in lacuna. Reading of the application for leading additional evidence shows that only object shown for leading additional evidence is, to fill in the lacuna in the evidence for which the petitioner stands non-suited. Consequently, the application for leading additional evidence is rejected. Consequent to rejection of application for additional evidence, no fault can be found with the judgment of the learned Rent Controller, as admittedly, the petitioner failed to prove, that he was owner of the property for 5 years, prior to the filing of the rent petition, which is pre-requisite to CR No.580 of 2005 5 invoke the provisions of Section 13-B of the Act. For the reasons stated, finding no merit in the revision petition, it is ordered to be dismissed, but with no order as to costs.

9.07.2010 (Vinod K.Sharma) Judge