JUDGMENT
N.K. Sodhi, J.
1. This is a tenant’s revision petition directed against the order dated 5.1.1996 passed by the Rent Controller dismissing his application seeking permission to lead secondary evidence to prove the rent note dated 5.11.1979.
2. Brief facts giving rise to the revision petition may first be noticed. Respondents
No.1 and 2 who are the landlords sought ejectment of the petitioner from the demised
shop on the ground of non-payment of rent and also on the ground that he had sublet
the premises without written permission of the landlords. After the landlords had led
their evidence, the petitioner moved an application alleging therein that the shop in dispute was taken on rent from Hari Krishan Diwan and his brother Gopal Krishan as per
rent note dated 5.11.1979 and that Gopal Krishan had executed and signed the said rent
note on his own behalf as well as on behalf of Hari Krishan. It was further alleged that
the original rent note remained in possession of Gopal Krishan and that the same has
not been placed on the record. A photo copy of the rent note was however, placed on
the file and it was pleaded that the rent note had been scribed by a deed writer. The
prayer made in the application was for permission to the tenant to prove the rent note by
secondary evidence as the rent note is very material to be placed on the file. The land
lords filed their reply to the application and opposed the same. It was pleaded that the
rent note had not been signed by Gopal Krishan and that but was a forged document. It
was also alleged that the same had not been executed on a stamp paper and had not
been registered in accordance with law and that since the existence of the original and
its loss had not been proved the tenant could not be allowed to prove the document by
leading secondary evidence. It was also asserted that Gopal Krishan had no authority to
execute the alleged rent note on behalf of Hari Krishan.
3. After hearing counsel for the parties and taking note of the provisions of sections 65 and 66 of the Evidence Act, 1872, the Rent Controller came to the conclusion that the case of the tenant-applicant did not fall within the four corners of the two Sections and, therefore, the application could not be allowed. The Rent Controller found that since the tenant had not given any notice to Gopal Krishan under Section 66 of the Act calling upon him to produce the rent note which was supposed to be in his possession, the tenant could not be allowed to lead secondary evidence.
4. I have heard counsel for the petitioner and perused the record. The respondent did not appear inspite of service. Gopal Krishan is said to have died on December 11, 1990 much before the ejectment petition was filed out of which the present revision petition has arisen. The question of serving notice on him to produce the original rent note, therefore, could not arise. According to proviso 6 to Section 66 of the Act such a notice is not required when the person in possession of the document is out of reach of nor not subject to the process of the court. Since Gopal Krishan was dead he was not subject to the process of the court and therefore, the Rent Controller, in my opinion, was in error in rejecting the request made by the petitioner for leading secondary evidence. It is not in dispute that Gopal Krishan during his life time had filed an ejectment petition against the petitioner from the demised shop which was withdrawn when the tenant deposited the arrears of rent on the first date of hearing. In that petition for ejectment, Gopal Krishan had admitted that the demised shop had been given on rent on the basis of a rent note dated 5.11.1979. The existence of the original rent note is, thus admitted. It was a fit case in which the Rent Controller should have allowed the tenant to lead secondary evidence. The Rent Controller acted illegally and with material irregularity and in any case committed grave impropriety in not allowing the application. The view that I have taken finds support from a Judgment of this Court in Mukhtiar Singh v. Bant Singh and Anr., 1991 S.C.C. 225.
5. In the result, the revision petition is allowed, the impugned order dated 8.1.1996 set aside and me application filed by the petitioner for. leading secondary evidence allowed. Rent Controller is directed to dispose of the ejectment application expeditiously but not later than six months from the date when a copy of this order is received by the trial court. Petitioners through their counsel have been directed to appear before the Rent Controller on 20.5.2002.