Poonam Srivastav - (1.) HEARD Sri Kshitij Shailendra, learned counsel for the petitioner/tenant and Smt. Rama Goel Bansal advocate for the landlord/contesting respondent.
(2.) THE brief facts giving rise to the instant dispute is that Sri Nand Kumar Sinha, husband of the petitioner was the tenant of the residential house and after his death, the present petitioner has stepped in his shoes and now she is the tenant. THE owner of the residential house in occupation of the petitioner was Sri Shiv Nath Khanna previously but now it has been purchased from Sri Shiv Nath Khanna and the respondents are now owners and landlord. THE petitioner claims that certain repair was carried out by her husband after obtaining consent from the erstwhile owner/landlord Sri Shiv Nath Khanna. Immediately after purchase of the house, the respondents instituted Suit No. 69 of 2003 in the court of Judge Small Causes, Moradabad seeking eviction of the husband of the petitioner on the ground that the tenant had made certain constructions and material alteration in the building under the tenancy without seeking permission of the landlord and thereby utility and value of the building was alleged to be considerably diminished. THE suit was contested by Sri Nand Kumar Sinha and after his death on 10.11.2004 the present petitioner Smt. Sarojini Devi Sinha was substituted. THE Judge Small Causes Court, Moradabad decreed the suit on 6.9.2006 which was challenged in S.C.C. Revision No. 53 of 2006 in the court of District Judge, Moradabad which is presently pending in the court of Special Judge (E.C. Act), Moradabad. THE petitioner moved an application on 9.9.2008 which was numbered as 43-C making a request that the building may be got inspected from an authorized Survey Commissioner duly approved by the Government and a report be called for to come to a definite conclusion that the so called material structural alteration had diminished the value of the building. An objection was filed as Paper No. 44-C against the application objecting for the said report because there was no such provision under the Act. The submission of the learned counsel for the petitioner is that S.C.C. Suit was instituted by new owners immediately after purchase of the disputed house trying to create a ground for eviction without substantiating the fact that firstly no permission from the landlord was sought as well as to establish the most important factor as the said construction was so called alteration and have diminished the value of the building. The finding of the Judge Small Causes Court is that on account of the construction, approach of sunlight has been hampered. The tenant had made a request in revisional court that this fact that the premises in question has been sufficiently rendered damaged and its utility is diminished. The respective counsels have stressed their argument and in support thereof have cited a number of decisions. The primary objection of the counsel appearing on behalf of the landlord is that additional evidence cannot be permitted at the revisional stage unless and until it is an extreme case and the party seeking to file additional evidence has substantiated that despite exercise of due diligence the said evidence could not be procured at the stage of trial as well as evidence are relevant and necessary to meet the ends of justice. Reliance has been placed on the case of Amrawati and others v. XIth Additional District Judge, Moradabad and others, and also Dharmendra Kishore (Shri) v. XIth Additional District Judge, Moradabad and others, 2005 (2) ARC 276. This is a decision of this Court wherein the order of the revisional court accepting additional evidence was upheld. The next decision relied is of Apex Court, Wadi v. Amilal and others, 2002 (5) AWC 4133 (SC). Similar view was taken by the Apex Court in another decision Adil Jamshed Frenchman (D) by L.Rs. v. Sardar Dastur School Trust and others, JT 2005 (2) SC 332 : 2005 (2) AWC 1128 (SC), where it was held that the documents sought to be produced were material and if substantiated would have a material effect on the case of the landlords of their bona fide need of the suit premises and therefore the High Court erred in setting aside the order of the first appellate court admitting such documents. Another decision is of the Constitution Bench of the Apex Court; The Municipal Corporation of Greater Bombay v. Lala Pancham and others, AIR 1965 SC 1008 (V 52 C 161). Extract of paragraph 9 of the said judgment is quoted below : "We shall deal with these documents presently but before that we must point out that the power under clause (b) of sub-rule (1) of Rule 27 cannot be exercised for adding to the evidence already on record except upon one of the ground specified in the provision. If the documents on record are relevant on the issue of fraud the court could well proceed to consider them and decide the issue. The observations of the High Court that certain documents would support the plaintiffs' contention of fraud only if they were not explained would show that according to it they furnish a prima facie evidence of fraud. There is nothing to show that the defendants or any of them wanted to be afforded an opportunity for explaining the documents. It would further appear that it was not merely for the limited purpose of affording the defendants an opportunity to explain the documents that the High Court remitted the case to the City Civil Court. For, in the concluding portion of its judgment the High Court has directed as follows : "In the result, we remit the case to the City Civil Court for receiving additional evidence as directed by us in the judgment and also to allow evidence on the amendment. We direct that the defendants do file their written statement within three weeks from today, or at such earlier time as they can in answer to the amendment permitted to be made. Discovery and inspection forthwith within a week thereafter. And after this formality is over, the case to be on the Board for final hearing for taking evidence on the issue of mala fide and the issues that arise on the amended pleadings between the parties....." To counter these arguments, specific objection raised by Smt. Rama Goel Bansal is that there is already a detailed report of Amin detailing the construction and there is no occasion to call for additional evidence and also that the powers under Section 34 (c) of the U. P. Act No. 13 of 1972 are discretionary power and they cannot be claimed as a right to call for additional evidence. Since there is no provision under the Rent Control Act calling report for a Government approved valuer, the revisional court rightly rejected the application of the petitioner and it calls for no interference whatsoever.
(3.) AFTER hearing the respective counsels at length and going through the impugned order as well as judgment of the S.C.C. revision, I am of the considered view that since the revisional court had to hear the arguments and form its opinion whether the structural alterations have considerably hampered the utility of the building, I am not inclined to record any finding on merit but I proceed to examine the impugned order of the revisional court only on an analysis that whether the evidence sought by the petitioner/tenant is relevant for a just decision of the case as the decisions relied upon by Sri Kshitij Shailendra to substantiate his argument and counter argument of Smt. Rama Goel Bansal that the instant application has been filed only to fill up the lacuna, I proceed to record my finding whether a valuer's report or an engineer's report is really essential. The suit for eviction has been instituted on the ground mentioned in Section 20 (2) (c) of the Act No. 13 of 1972 which is quoted below : "That the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it." ;