PUSHPENDRA SINGH BHATI,J. - (1.) The petitioner has preferred this writ petition for the following reliefs:- "a) by an appropriate writ, order or direction, the impugned order dated 21.12.2017 (Annex.13) may kindly be quashed and set aside and the application submitted under Section 90 of the Evidence Act dated 15.11.2017 may kindly be allowed. b) Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. c) Writ petition filed by the petitioner may kindly be allowed with costs."
(2.) The plaintiff filed a suit for eviction and recovery of mesne profit against the petitioner alleging inter alia that the shop in-question, which is situated at Kandoi Bajar Merta City was let out to the petitioner @ Rs. 250/- per month. The present controversy arose out of an application moved by the petitioner under Section 90 of Evidence Act, 1872 for taking presumption regarding correctness of the rent-note (Annex.9), which was apparently executed on 01.4.1965. Counsel for the petitioner Shri OM Mehta submits that the document i.e. rent-note, was executed on 01.4.1965 and is more than 30 years old. Counsel for the petitioner further submits that the document aforesaid has been marked as exhibit subject to just objections to be taken by the respondent. Counsel for the petitioner submits that even if presumption of its correctness is taken under Section 90 of Evidence Act, then also that shall be subject to rebuttal and shall in no manner prejudice the case of respondent. Counsel for the petitioner further argued that if the application is accepted under Section 90 of the Evidence Act, then the very purpose of having provisions like Section 90 of the Evidence Act shall be frustrated. To substantiate his arguments, learned counsel relied upon the judgment of Hon'ble Supreme Court in Lakhi Baruah and Ors. v. Padma Kanta Kalita and Ors., reported in AIR 1996 SC 1253 ; the relevant portion whereof reads as follows : "14. It will be appropriate to refer to Section 90 of the Evidence Act which is set out hereunder: Section 90 Presumption as to documents thirty years old-where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested. that it was duly executed and attested by the person by whom it purports to be executed and attested. 15. Section 90 of the Evidence Act is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the documents in question is produced from proper custody. It is, however, the discretion of the Court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons."
(3.) On the other hand, counsel for the respondent justified the impugned order on the ground that the documents in-question are forged one and, therefore, any presumption regarding their genuineness shall cause serious prejudice to him.;