After going through the respective submissions made by the counsel for parties, in my opinion the trial court has failed to exercise its jurisdiction judiciously. From the very beginning one of the point being raised by defendant petitioner was that the plaintiff had sufficient accommodation with him and there is. no bonafides necessity for the one room of defendant. The building is said to be of 3 stories. The measurement or the accommodation and number of rooms etc can only be got proved through plaintiff who has exclusive knowledge of the accommodation and particulars of his building. The details can only be brought on record either by producing the map and if in case the map is not available by appointing a commissioner and by preparing a map of the building. For the reason that the plaintiff in his cross examination has categorically stated that there was no necessity of production of map, it had be become essential for defendant to move applications for the just decision of the case and to avoid injustice. The trial court was swayed with the plea of the plaintiff to the effect that it is upto plaintiff to prove his bonafides necessity, but on the same time the trial court had ignored the defence plea that the plaintiff had sufficient accommodation with him and in case the plaintiff failed to answer the total accommodation with him, in my opinion, the defendant was justified in moving the application for soliciting the information from the plaintiff either by way of production of map on record, interrogatories or by appointing the commissioner.
IN THE HIGH COURT OF RAJASTHAN
Decided On: 31.07.2000
Appellants: M/s. Gupta Agencies and Ors.
Vs.
Respondent: Ram Krishan Akar and Ors.
Vs.
Respondent: Ram Krishan Akar and Ors.
Hon'ble Judges/Coram:
J.C. Verma , J.
Citation: 2000(30)CivilCC(RAJASTHAN)
1. The revision petition No. 744/2000 has been directed by petitioner-defendant in a suit for eviction against the order dated 31.3.2000, whereby the application under Order 11 Rule 12 CPC has been dismissed by the trial court.
2. The other revision petition No. 745/2000 has been directed by petitioner-defendant against the order dated 15.5.2000, whereby the application under Order 11 Rule 14 CPC has been dismissed by the trial court.
3. The third revision petition No. 746/2000 has been directed by petitioner-defendant against the order dated 15.5.2000, whereby the application under Order 26 Rule 9 CPC has been dismissed by the trial court.
4. The suit was filed by the plaintiff for eviction from the premises in question on the ground of bonafides necessity. The premises in question consisting of a shop with tin-shed. The present petitioner had taken a plea in the defence that the plaintiff had sufficient rooms and accommodation in the said house where the present premises is situated and also let out certain rooms which had fallen vacant. The defence of the petitioner was that sufficient accommodation is available with the plaintiff. The petitioner to prove that sufficient accommodation as available with the plaintiff had desired the plaintiff to provide the particulars of the building which was occupied by plaintiff with its measurement. It was also desired that the map of the same house be also produced and submitted before the court for perusal. The plaintiff had stated that there is hardly any necessity for production of the map of house in possession of plaintiff.
5. The present petitioner-defendants moved three applications under Order 11 Rule 12 CPC, Order 11 Rule 14 CPC and Order 26 Rule 9 CPC for production of the map of the building in question and possession of the plaintiff. The plaintiff had stated that he was not in possession of the map and that there was hardly any necessity to produce the map. The application under Order 11 Rule 12 CPC was dismissed on the ground that the dispute related to the fact whether the plaintiff needed the premises in question or not?
In revision petition No. 745/2000, the application production of map of whole of the building in question in possession of plaintiff was rejected almost on the similar grounds as in the application under 0.11 R. 12 CPC.
6. In the third revision petition No. 746/2000, the application moved under Order 26 Rule 9 CPC in regard to same property as mentioned above has been dismissed vide order dated 15.5.2000. The application was moved for appointment of Commissioner for making local investigation for the purpose of total accommodation available with the plaintiff. This application has been dismissed on the ground that it is upto landlord to prove his bonafides necessity and that the defendant present petitioner can summon the record from Survey Commissioner, if need be.
7. The contention of Learned Counsel for the petitioner is that the plaintiff is in possession of a huge building of three stories which includes number of shops also. The defence of the defendant-petitioner is that the plaintiff has got more than sufficient accommodation with him even for the purpose of business, and therefore, all the three applications made by petitioner went to the root of the defence. It is further submitted that the petitioner defendant has no authority or access to enter into the building of plaintiff and it is by way of production or preparation or survey of map of the building -No. 1409 which can establish the defence plea. Therefore, the rejection of applications is not accordance with law and the court below has failed to exercise its jurisdiction judiciously. The copy of written statement has been produced for perusal, wherein in para No. 9 it had been specifically averred that the plaintiff had more than sufficient accommodation with him, and thus the plaintiff has no necessity. Certain defences were also made in para Nos. 17 & 18 of the written statement.
8. To support his arguments, Learned Counsel for petitioner relies on the judgment in case of Rajmulhussain Mulla Mumtaz Hussain v. Satish Bhanudas Chavan (1995 (1) CCC 280 ) and in the case of Mahendranath Parida v. Purnanada Parida and Others (MANU/OR/0065/1988 : AIR 1988 Ori 248).
9. Learned Counsel for respondent relies on judgments in case of Cimmco Ltd. v. Shyam Mohan Jain (MANU/RH/0041/1997 : AIR 1997 Raj 180) and Smt. Vimla Sharma v. Registrar. Cooperative Societies Raj. and Others (1997 (2) R.L.W. 1304 and also on a judgment reported in 2000 WLC (UC) 86 on the point of principles of appointment of commissioner etc.
10. After going through the respective submissions made by the counsel for parties, in my opinion the trial court has failed to exercise its jurisdiction judiciously. From the very beginning one of the point being raised by defendant petitioner was that the plaintiff had sufficient accommodation with him and there is. no bonafides necessity for the one room of defendant. The building is said to be of 3 stories. The measurement or the accommodation and number of rooms etc can only be got proved through plaintiff who has exclusive knowledge of the accommodation and particulars of his building. The details can only be brought on record either by producing the map and if in case the map is not available by appointing a commissioner and by preparing a map of the building. For the reason that the plaintiff in his crass examination has categorically stated that there was no necessity of production of map, it had be become essential for defendant to move applications for the just decision of the case and to avoid injustice. The trial court was swayed with the plea of the plaintiff to the effect that it is upto plaintiff to prove his bonafides necessity, but on the same time the trial court had ignored the defence plea that the plaintiff had sufficient accommodation with him and in case the plaintiff failed to answer the total accommodation with him, in my opinion, the defendant was justified in moving the application for soliciting the information from the plaintiff either by way of production of map on record, interrogatories or by appointing the commissioner.
11. For the reasons mentioned above, I allow all the three revision petitions. The impugned orders of the court below are set aside, it is directed that the map of the building or the true copy of the map available with the plaintiff shall be produced before the trial court by plaintiff within 15 days of receipt of certified copy of this order. In case, no such map is available an-expert commissioner shall be appointed at the cost of defendant-petitioner to survey the building for the purpose of showing the total accommodations and to prepare the map of the same and the same be produced before the trial court since the suit is pending since 1982, the trial court shall makes all efforts to decide within 8 months.
12. With the above observations, all the three revision petitions are disposed of at admission stage. No order as to cost.
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