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Smt. Dayawanti and ors. Vs. Kirpa Ram - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtHimachal Pradesh High Court
Decided On
Case NumberC.R. No. 1 of 1978
Judge
Reported inAIR1981HP6
ActsCode of Civil Procedure (CPC) , 1908 - Order 16, Rule 1; ;Punjab Urban Rent Restriction Act, 1949 - Section 4
AppellantSmt. Dayawanti and ors.
RespondentKirpa Ram
Advocates: Chhabil Das, Adv.
DispositionPetition allowed
Cases ReferredChaman Lal v. Ram Rakhi
Excerpt:
tenancy - witness - code of civil procedure, 1908 - respondent filed application for fixation of rent - petitioner failed to produce a particular witness after being given several opportunities - rent controller passed impugned order closing evidence - appeal - facts revealed that petitioner had been repeatedly filing process fees and depositing diet money - no negligence on part of petitioner to summon witness - under civil procedure code a party cannot be directed to take 'dasti' summons - rent controller should have issued summons and forced presence of witness - order of rent controller in closing evidence not justified. - .....from the record, it appears, that he had been served. the witness was not present and hence the rent controller ordered that the case be fixed for remaining evidence of the petitioners for 5-5-75. thereafter adjournments were allowed for evidence of the petitioners and the various orders show that their evidence could not be completed and the court had been allowing time to summon the evidence on payment of the process-fees. on 21-8-77 the court passed the order that only one rw, i. e, overseer of the municipal committee, remains to be examined and opportunity for producing this witness was given. it was further ordered that the summons for the witnesses be taken dasti and that the landlords-petitioners should produce the witness on the next date i.e. 28-11-77. it was further ordered.....
Judgment:
ORDER

V.P. Gupta, J.

1. This revision petition is directed against the order, dated 28th November, 1977 passed by the Rent Controller (I) Simla, whereby he closed the remaining evidence of respondent-landlord (present petitioner).

2. The brief facts are that Kirpa Ram tenant (present respondent) filed an application under Section 4 of the Punjab Urban Rent Restriction Act on 23-7-1971 and prayed that the fair rent of the premises occupied by him under Smt. Daya-wanti and others landlords be fixed after necessary enquiries as envisaged under the law. This application was contested by the landlords and on the pleadings of the parties the following issues were framed on 25-5-1972;

'1. What is the fair rent of the premises in dispute? (O. P. Parties)

2. Whether the respondents effected improvements in the premises in dispute after 1938 A. D., if so, its effect? (OPR)

3. Relief.'

Thereafter the case proceeded for the evidence of the parties. The evidence of the tenant-respondent was closed in the affirmative on 8-8-73 and the case was fixed for landlord-petitioners' evidence. Some of the petitioners' evidence was recorded on 13-3-74 and thereafter it was fixed for the remaining evidence of the petitioners. The petitioners wanted to produce the Overseer of the Municipal Committee, Simla as their witness, but, this witness had not been properly served for 5-3-75, although from the record, it appears, that he had been served. The witness was not present and hence the Rent Controller ordered that the case be fixed for remaining evidence of the petitioners for 5-5-75. Thereafter adjournments were allowed for evidence of the petitioners and the various orders show that their evidence could not be completed and the court had been allowing time to summon the evidence on payment of the process-fees. On 21-8-77 the court passed the order that only one RW, i. e, Overseer of the Municipal Committee, remains to be examined and opportunity for producing this witness was given. It was further ordered that the summons for the witnesses be taken Dasti and that the landlords-petitioners should produce the witness on the next date i.e. 28-11-77. It was further ordered that if they failed to adduce the evidence on 28-11-77 then the evidence will be deemed to have been closed as several opportunities had been given for producing the evidence.

3. On 28-11-77 the Municipal Overseer was not present and as such the Rent Controller passed the impugned order closing the evidence.

4. Shri Chhabil Dass Sood appearing on behalf of the petitioners has contended that the order of the Rent Controller dated 28-11-77 is patently wrong and without jurisdiction and that the petitioners could not be directed or ordered to take Dasti summons for the witness who was an employee of the Municipal Committee. It is contended by him that he had repeatedly been filing process-fees for summoning the witness and that it was the duty of the court to have issued summonses and got the service effected upon the witness in accordance with law. It is also contended by him that the correct address of the witness had been supplied and that his diet money had already been deposited. In support of his contention he has drawn my attention to the provisions of Order 16, Rule 1, C.P.C. and has also referred to Chanan Singh v. R.R. Sharma, ((1977) 1 Rent LR 32) (Punj).

5. It is further contended by Shri Chhabil Dass Sood learned counsel for the petitioners that in an application under Section 4 of the Act it is the duty of the Rent Controller to find out the fair rent and that, if any evidence is available, then the Rent Controller should record that evidence and the duty to make the enquiry regarding the fair rent is of the Rent Controller. It is also contended that the evidence of the Municipal records or the evidence of the official witness of the Municipal Committee was the best available evidence for such an enquiry and as such the Rent Controller should himself have taken care of summoning and recording this evidence and failure on the part of the Rent Controller to record such evidence is a grave irregularity. In support of this contention the learned counsel has referred to Chaman Lal v. Ram Rakhi (1967 Cur LJ 867).

6. Nobody has appeared on behalf of the tenant-respondent.

7. After hearing the learned counsel for the petitioners, I am of the view that the order of the Rent Controller, dated 28th November, 1977, closing evidence of the landlords-petitioners is not justified in the circumstances of the case. A perusal of the file shows that the petitioners had been trying to summon the Overseer of the Municipal Committee along with the records right from the year 1974 and diet money for this witness was deposited for the first time on 1-3-74 when the case had been fixed for the evidence on 13-3-74. Thereafter the diet money of the witness was again deposited on 1-3-75 when the case had been fixed for the evidence of the landlords on 5-3-75. Again, the diet money of the witness was deposited on 11-10-77 when the case had been fixed for the evidence of the landlords on 28-11-77. The file also shows that the landlords had been filing the requisite process-fees for summoning the witness and such a process-fee for summoning the witness was also filed on 11-10-77 when the case was fixed for evidence on 28-11-77. In such circumstances, I do not find that there is any negligence on the part of the landlords to summon the witness. There is also nothing to suggest that the landlords had been avoiding to get the service on the witness effected. On the other hand the repeated filing of the process-fees and the deposit of diet money clearly shows the keenness of the landlords to produce this witness along with the records in the court. Under the provisions of the Civil Procedure Code a party cannot be directed to take Dasti summons for effecting the service of the witness and as such the order of the court to the landlords for getting the Dasti summons is clearly wrong. The Rent Controller should have issued the summons to the witness and should have forced the attendance of the witness in the court and in case the witness had refused to attend the court in spite of the service of the summons then the Rent Controller should have taken recourse to other provisions of the Civil Procedure Code for enforcing the attendance of witness because the provisions of the Civil Procedure Code for enforcing the attendance of witnesses, etc. are applicable in Rent Proceedings. I am, therefore, in complete agreement with the view taken in Shri Chanan Singh's case (supra).

8. Moreover, the present proceedings are under Section 4 of the Rent Act for fixation of the fair rent and it is the duty of the Rent Controller to make an enquiry in the matter so that he may be able to fix a fair rent in accordance with law. The evidence of the Municipal Committee records might have helped the Rent Controller in arriving at a better decision to some extent. In Chaman Lal's case (1967 Cur LJ 867} (supra) also it has been held that the Rent Controller should make a proper enquiry for fixing a fair rent.

9. In view of the above discussion, I hold that the order of the Rent Controller, dated 28th November, 1977 closing evidence of the landlords is not justified and as such I allow this petition and set aside the order, dated 28-11-1977. The Rent Controller will now summon the remaining evidence of the landlords and record the same in accordance with law.

10. The parties are left to bear their own costs.


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