IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 5651 of 2008 (O&M)
Date of decision: 21st October, 2008
Harbhajan Singh
... Petitioner
Versus
Dinesh Kumar
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. K.S. Dadwal, Advocate for the petitioner.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Petitioner – tenant is aggrieved against the order passed by
the Rent Controller, Nawanshahar, whereby he allowed the application of
the petitioner – landlord to lead secondary evidence. In the present case,
respondent – landlord had instituted a petition for eviction. In para 2 of the
Rent Petition, petitioner – landlord had made a specific averment, which is
as under:
“2. That the property in dispute along with other
properties forms part of Hindu Joint Family property, and the
same was partitioned during the life time of Lajpat Rai on
1.4.1992 orally which was reduced into writing subsequently
vide deed of settlement and the demised premises in question
has fallen into the share of the petitioner, the said deed
settlement, site plan are attached herewith.”
It is stated that in pursuance of the notice issued by the Rent
Petition, respondent – tenant appeared and filed application (Annexure
P-1), in which he averred that on inspection of the file, it has been revealed
Civil Revision No. 5651 of 2008 2that petitioner – landlord has placed incomplete alleged family settlement
without map, on the file with malafide intention. A reply was filed by the
landlord, in which it was stated that documents placed i.e., family
settlement is a complete document and a photocopy of the same has been
produced. Thereafter, application (Annexure P-3) was filed by the landlord
stating therein that the documents are not traceable, which were with the
petitioner, in spite of best efforts and on the basis of the same, rent has
been paid, admitting the petitioner to the Rent Petition as owner/ landlord.
Reply (Annexure P-4) was filed, in which it was stated that as a matter of
fact, alleged family settlement relied by the landlord is a false, fictitious and
sham document. The application of landlord was allowed vide impugned
order and he was permitted to lead secondary evidence. The Rent
Controller, Nawanshahar, while allowing the application, further observed
that tenant – respondent would be at liberty not only to raise objections
regarding admissibility of the documents in question, but he would also be
entitled to cross-examine the petitioner as well as the witnesses to be
examined by him, as also to lead his own evidence so as to controvert the
evidence of the petitioner. It was further observed that no prejudice is
therefore, going to be caused to the respondent in the event of allowing the
petitioner to lead secondary evidence in respect of the documents in
question.
The present petition is misconceived. In the application, it has
been stated that in spite of the best efforts, documents are not traceable. It
has been stated in the present petition that the Rent Controller has not
examined the necessary ingredients for invoking Section 65(c) of the Indian
Evidence Act, wherein it has been clearly mentioned that original
documents should have been lost or destroyed. Whether the documents in
original have been lost or destroyed, is a matter of evidence. No party can
be permitted to rely on the fact that appropriate words have not been used
Civil Revision No. 5651 of 2008 3
and it has been stated that the documents are not traceable. It will only
surface in the evidence that the landlord will examine whether original or
the document has been lost of destroyed. It can be determined by the Rent
Controller after appreciating the evidence, whether the documents in
original have been lost or destroyed. It is premature at this stage to
consider this argument. Furthermore, the necessary safeguard has been
provided by the Rent Controller, when it has been stated that no prejudice
is going to be caused and tenant will be at liberty to raise objections to the
admissibility of the documents. It can be safely inferred that present petition
has been filed only to delay the proceedings.
During course of arguments, it was further observed by this
Court as to how the petition under Article 227 of the Constitution of India is
maintainable.
The Counsel has relied upon Surya Dev Rai v. Ram Chander
Rai and others, 2004 (1) RCR (Civil) 147. A perusal of the judgment
shows that though this Court has a supervisory jurisdiction, the same is to
be exercised only if the subordinate Court has assumed a jurisdiction which
it does not have, or has failed to exercise its jurisdiction which it does have,
or the jurisdiction though available is being exercised by the Court in a
manner not permitted by law, or grave injustice has occasioned thereby. It
has been further held that this Court will intervene in case the error is
manifest or apparent on the face of the proceedings such as when it is
based on clear ignorance or utter disregard of the provisions of law, or a
grave injustice or gross failure of justice has occasioned thereby.
Learned counsel has relied upon a Single Bench judgment of
this Court rendered in Surinder Kumar v. Murari Lal, 1993 (2) RCR 535,
wherein it was held that respondent had not come with clean hands, as he
could have approached the Court earlier. It is specifically mentioned in that
judgment, that permission to produce the documents at a belated stage
Civil Revision No. 5651 of 2008 4
cannot be granted. It was held in Surinder Kumar’s case (supra) that party
to that case was not entitled to prove the documents by way of secondary
evidence. It specifically held that Court will grant permission only when it
comes to a conclusion that documents have been lost or destroyed.
Needless to say, as observed earlier, conclusion is to be arrived at by the
Court, only after the evidence has been led.
The courts have always held that the supervisory jurisdiction is
to be exercised sparingly and only in appropriate cases, where the judicial
conscience of the High Court dictates it to act lest a gross failure of justice
or grave injustice should occasion. All such inferences, which call for
exercising the jurisdiction of this Court, are lacking in the present case.
Hence, the present revision petition is dismissed.
[KANWALJIT SINGH AHLUWALIA]
JUDGE
October 21, 2008
rps