- (1.) INSTANT petition has been filed by the petitioner against the order of the learned Trial Judge dt.15.04.2011 whereby request made by the petitioner-defendant to mark photographs and CD as exhibit produced by DW4 was rejected on the premise that what has been contended and deposed through photographs and CD was at the best in the knowledge of DW1 tenant or his son but none of them produced at the time of their statements being recorded and as regards DW4 who was produced from judicial custody it was neither in his knowledge nor in his possession as such he could not have been permitted to produce photographs and CD and it could not have been marked as exhibits.
(2.) THE non-petitioner plaintiff filed a suit for eviction on various grounds including non-user of rented premises provided u/S.13(1) (j) of the Rent Control Act wherein it has to be proved that the premises have not been used without reasonable cause for the purpose for which it was let out for a period of six months immediately preceding the date of filing of the suit. In the instant case, the suit for eviction was filed in the year 1999 and it has come on record that in 2006 the defendant for one reason or the other has not recorded the evidence of its witnesses and the matter at two different occasions travelled upto this Court but CWP-13355/2009 which was lateron preferred on account of closing petitioner- defendant's evidence, this Court decided vide order dt.31.01.2011 giving time bound framework to the learned Trial Judge to grant opportunity to petitioner defendant to lead evidence with further direction to the court below to decide the suit expeditiously in accordance with law. Dw1 being the tenant himself and Dw2 & Dw3 respectively son and other relative were examined as defendant's witnesses but none of them produced even photographs or CD on record which could at the best be said to be in their possession for the purpose to disclose that shop is still running and being used for occupation but when Dw4 who was one of the witness produced from the judicial custody placed certain photographs and CD on record and requested to mark it as exhibits that request was not accepted by the learned Trial Judge on the premise that what he wants to produce on record cannot be said to be in his possession and knowledge as to whether the rented shop is still functioning and undergoing business and taking note thereof the request made by Dw4 who was one of the defendant witness was rejected by the learned Trial Judge and after the defendant's evidence was recorded, the matter, as informed to this Court, has ripen and listed for final hearing on 23.05.2011. Counsel for petitioner vehemently submits that the documents (photographs and CD) placed on record by DW4 which were sought to be exhibited and the learned Trial Judge could not be said to justified in rejecting the request made and that is the apparent error being committed by the learned Trial Judge and as such the impugned order deserves to be quashed and he made further request that those documents may be marked as exhibits and learned Trial Judge may be directed to look into while the submissions being made by respective parties in regard to their case at the time of hearing. Mr. Agrawal, Sr. Adv. assisted by Mr. Alok Chaturvedi, on the other hand supports the impugned order and submits that it was not in the knowledge of DW4 to produce such documents and such documents could not be accepted to be marked as exhibits produced at his behest and the learned Trial Judge has not committed any error which may call for interference.
(3.) DW1-3 were the defendant witnesses who may be in the know of the fact whether shop is still running its commercial activities but none of them while their statements are being recorded produced photographs or CD which could have been considered by the learned Trial Judge but DW4 who was produced from judicial custody it could not be in his personal knowledge as to whether the shop is still running its business placed certain CD/photographs on record and under these circumstances the learned Trial Judge considered it appropriate that such documents cannot be accepted to be marked as exhibits in absence of being in his possession and apart from it the ground for non-user in terms of Sec.13(1)(j) is to be looked into from the date immediately preceding six months from filing of the suit which in the instant case was filed in 1999. Taking note thereof, the learned Trial Judge rejected the prayer made by the petitioner. This Court does not any manifest error being committed by the learned Trial Judge while passing the order impugned which may call for interference. Consequently, the petition, being devoid of merit, is hereby dismissed.;