MADAN, J. - (1.) THIS revision petition arises out of order dated 6. 12. 99 of the Additional Civil Judge (Junior Division) Jaipur (West) whereby he rejected the defendant's application under Order 13 Rule 2 CPC for production of a will in Civil Suit No. 413/87 executed by late Shri Tikaramji in favour of his daughter in law Ramadevi (plaintiff) and further to summon another will in respect of the suit shop executed by late Shri Tikaram in favour of his wife Radhadevi which was submitted in another suit for eviction filed by Radhadevi mother in law of Ramadevi against Banshidhar before Addl. Civil Judge No. 4, Jaipur City.
(2.) THE aforesaid defendant's (petitioner) application had been filed in a suit for eviction having been instituted by plaintiff Ramadevi against defendant Bhagwan Sahai on 11. 8. 87 on the ground of default in payment of rent. THE plaint was later on amended on 13. 12. 96 incorporating two new grounds. (1) reasonable and bonafide necessity of her son Vijay Singh and (2) subletting. THE defendant in his written statement filed on 3. 12. 99 however admitting the tenancy, denied the grounds of eviction. Amended written statement was filed on 6. 8. 98. After recording evidence of the plaintiff, his evidence was closed on 19. 9. 99. THE case was then fixed for recording of the evidence of defendant w. e. f. 1. 11. 99 till 3. 11. 99 but defendant failed to produce any witness on aforesaid dates, so the case was adjourned to 29. 11. 99. But on 29. 11. 99, the application for summoning gift deed and will was moved and on 30. 11. 99 another application under Order 13 Rule 2 CPC was moved by the defendant. Reply to both the applications was filed by the plaintiff on 3. 12. 99. On 6. 12. 99, the trial Court rejected the application for summoning the document holding the documents (sought to be produced and summoned) being irrelevant and unnecessary for deciding real controversy in the eviction suit. Hence, this revision petition. It has been contended by the learned counsel for the petitioner that when Mahendra Singh being power of attorney holder of plaintiff got examined himself as PW2, it was revealed that the suit shop was acquired by the plaintiff under a will, executed by late Tikaram whereas the defendant came to know that Tikaram (original landlord) had executed no will in favour of Radhadevi in her suit for eviction against Banshidhar before Addl. Civil Judge No. 4, Jaipur City and, therefore, this caused the petitioner to get the will summoned in order to show as to in whose favour, it was actually executed and to further ascertain as to who was real owner of the suit shop and the rent note in question was fictitious having been got fraudulently prepared in her name by Mahendra Singh with or without knowledge of the plaintiff. Hence, according to the defendant it has become most material and important document for being brought on record for just decision of the case. Learned counsel for the defendant petitioner also contended that the suit shop initially was let out to father of the defendant and on demise of his father, it devolved upon his three sons and since the defendant being the only eldest son and adult member of the family used to sit at the suit shop alongwith his other two minor brothers but the rent note was got executed surprisingly from him by power of attorney holder Shri Mahendra Chaudhary of the plaintiff by fraudulently getting the same prepared particularly when will of Ramadevi itself was in question. Hence, it is the case of the defendant that in the ends of justice, it was essential to summon the will, which was in possession and power of the respondent whereby genuineness of the rent note was since in serious doubt, its authenticity being open to question. Learned counsel for the respondent (plaintiff) while controverting the contentions of the petitioner, contended that this revision petition deserves to be dismissed keeping in view conduct of the petitioner as he has not approached this Court with clean hands and he has delayed the eviction proceedings by not diligently prosecuting his claim in defence rather by getting the proceedings adjourned on one pretext or the other. Shri Manish Sharma contended that it is a plain and simple suit for eviction based on rent note which was submitted by the tenant (petitioner) in his written statement filed on 6. 8. 98 and hence, he is estopped from questioning the title of the landlord of the suit shop as per Section 116 of the Evidence Act by having made request for summoning the alleged documents which are neither relevant for germane to decide the controversy at issue, inasmuch as it is not open to the tenant to challenge the title of the landlord once having taken premises on rent and since he had also admitted tenancy in his written statement. In my considered view, the aforesaid contention canvassed by the learned counsel for the respondent (plaintiff) merits consideration since the law is well settled by virtue of Section 116 of the Evidence Act that no tenant of immovable property, or person claiming through such tenant, shall during the continuance of the tenancy, be permitted to deny the title of his landlord with regard to the immovable property in which he is a tenant and no person who has come to acquire possession of any immovable property by virtue of licence from the licensor i. e. the person in possession thereof, shall be permitted to plead that such person had no title to such property at the time when such licence was given.
(3.) I am also in agreement with the contention advanced by the learned counsel for the respondent that the documents of which the defendant sought production thereof viz. the will in question, as referred to above, is not at all relevant to decide the matter in controversy since no issued was framed as to the title in the suit and in the absence, of this, even if the petitioner is given permission to summon and produce the document, the same would not serve the purpose because as per settled law, the parties cannot be permitted to lead any evidence beyond the scope of pleadings particularly when the issue in this regard has also not been framed by the trial Court. Another important factors pointed out by the learned counsel for the plaintiff respondent is that from the proceedings in the suit it is crystal clear that the petitioner's conduct is not at all bonafide since the matter was proceeded ex parte thrice and despite having given more than 12 changes, he failed to examine his witnesses, rather he indulged in forestalling the matter on one protect or the other. I am in full agreement with aforesaid contention of the learned counsel for the plaintiff respondent as the same is based on material on record since admittedly, the petitioner's conduct deserves to be deprecated in strongest terms. Insteading of diligently prosecuting the trial in advancing his cause of justice, the defendant has deliberately created hindrances for past almost 13 years of eviction proceedings resulting in inordinate delay by defeating cause of justice. Though, provisional rent was determined under Section 13 (3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 on 16. 3. 89 but the defendant did not deposit the determined or agreed rent in time but rather indulged in forestalling the matter and ultimately his defence against eviction under Section 13 (5) of the Act was struck off by order dated 29. 1. 96. Similarly, first order to proceed ex parte was issued on 22. 4. 93 but he could get order of ex parte set aside on payment of cost of Rs. 100/- on 24. 11. 93. Second time order to proceed ex parte was passed on 7. 10. 94 which he could get it set aside again after six month i. e. on 26. 4. 95 at the costs of Rs. 200/ -. Third time, order to proceed ex parte was passed on 14. 7. 97 and the defendant forestalled by moving yet application and proceeded for setting aside third order of ex parte till 13. 4. 1998 when the said order was again set aside with cost of Rs. 50/ -. That apart, the defendant was directed to lead his evidence in rebuttal w. e. f. 1. 11. 99 but he deliberately did not examine his witnesses on 1st to 3rd and 29th to 30. 11. 1999 on the fixed date but rather proceeded on moving applications for production and summoning of the irrelevant documents and thereby indulged in again delaying the matter by way of seeking adjournments till 27. 4. 2000 when again two applications were moved under Order 13 Rule 2 & Order 18 Rule 3a CPC by him, which were ultimately dismissed on 3. 5. 2000 resulting in closure of his evidence. ;