Sunday, 21 October 2018

Whether court should permit production of expert report during pendancy of proceeding?

 Even if assumingly, the original building plan hence stands appended with rent petition, yet when it may not disclose with, the, utmost precision, and, with ultra specificity, as may, hence stand disclosed in the report, of, the expert, the utmost necessity, of, the landlord/respondent herein, hence, bona fidely requiring it, for personally using it, upon, its being vacated, under, order(s), of, eviction being rendered by the learned Rent Controller, (i) thereupon also when, the expert's report, upon, its adduction, may also hence support the utmost necessity of the landlord, and, further may enable, the, emergence, of, best evidence, vis-à-vis, his bona fide(s), in, seeking, the, eviction of the tenant/petitioner herein, therefrom, (ii) whereupon, the apt leave is granted, for its being tendered into evidence, given its affording, being concomitantly both just and essential, for resting the apt controversy.

5. Be that as it may, even otherwise, the courts of law, are, expected to lean towards granting the apt leave, dehors any afore stricto sensu, construction being meted to the afore coinage hence occurring in the aforesaid statutory provisions, (i) unless demonstrable prejudice would ensue, to the petitioner/tenant or unless the discretion exercised, by the courts, in, permitting its/theirs being tendered into evidence, is, visibly rather grossly flawed, (ii) given courts, upon, discerning, from, the pleadings, the, necessity of its/their adduction, hence, for resting a clear clinching finding, upon the apt issue, thereupon, may being constrained, to validly conclude qua the apt leave being rather accordable. Significantly, hereat when for reasons aforestated, the afore report of the expert, is both, just and essential, for enabling the applicant/landlord, to, prove the apt ground, and, when the petitioner herein/tenant, would also hold the right, to cross-examine him, and, when hence no palpable prejudice would stand encumbered, upon, the non-applicant/petitioner/tenant, thereupon, this Court is constrained, to affirm the impugned order.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMPMO No. 251 of 2018

Decided On: 28.09.2018

 Suman Bala Vs. Rakesh Sood

Hon'ble Judges/Coram:
Sureshwar Thakur, J.




1. The petitioner herein/tenant, standing, aggrieved by an affirmative order pronounced by the learned Rent Controller, upon, the landlord's application, cast, under the provisions of Order 7, Rule 14(3) of the CPC, hence, has instituted the instant petition before this Court.

2. The landlord/respondent herein, had instituted a petition, seeking therein eviction, of, the tenant/petitioner herein, from, the demised premises, (i) and, the ground reared in the apposite eviction petition, is, embodied in the factum, of it, being bona fidely required, for, the personal use, of, the landlord/petitioner therein. During the pendency of the rent petition before the learned Rent Controller, an application, cast under the provisions of Order 7, Rule 14(3) CPC, stood instituted therebefore, by the landlord, (ii) wherein, leave was sought for placing on record, a report, prepared by one Sh. B.R. Sharma, Civil Engineer, (iii) with clear description(s), vis-à-vis, the location, of, the premises concerned, and, thereafter, in the application, it stands contended that upon leave being granted, vis-à-vis, the report of the Civil Engineer, (iv) thereupon, the learned Rent Controller, being facilitated, to pronounce, a, just decision, vis-à-vis, the afore ground of eviction, constituted in the rent petition. The apt application was contested by the tenant/petitioner herein, and, she contended that the mandate, of, Order 7, Rule 14(3) of the CPC, provisions whereof stand extracted hereinafter:-

"Order 7 Rule 14: Production of document on which plaintiff sues or relies

(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory."

(v) enjoined, upon, the applicant/respondent/landlord, to, acquire the satisfaction of the learned Rent Controller, vis-à-vis, (a) the document in respect whereof the leave, is, espoused, not being within his knowledge earlier; (b) his being disabled to procure it, at the appropriate stage, despite exercise of due diligence, (vi) and, therefrom he contends that, with, the report of the afore expert, standing prepared subsequent to the institution, of, the rent petition, (vii) thereupon, per se when the parlance gained by the statutory coinage "that the said documents were earlier not within the party's knowledge", is, qua the apposite document, rather imperatively existing in contemporaneity, vis-à-vis, institution, of, the rent petition, (viii) rather, hence, rendering capsized the endeavour of the applicant/respondent/landlord, reiteratedly, given its standing starkly manifested, qua, its preparation evidently occurring subsequent, to the institution of the rent petition, (ix) and, also he contends that the further statutory phrase occurring therein "or could not be produced at the appropriate time in spite of due diligence", as embodied, in the apt provisions also being, insistive, qua the existence of the apt documents, rather occurring, in, contemporaneity or prior to the institution of the rent petition, (x) thereupon, the plea of theirs being bona fidely, omitted to, despite exercise of due diligence, hence stand appended with the rent petition or remaining unrecited in the list, of, documents, appended with the petition, rather being unavailable for espousal by the applicant/landlord. He further contends that given the reply meted to the apt application, wherein, a contention, is ventilated qua, the, original approved map, of the building standing already appended, with the rent petition, rather therefrom, the, apt gauging(s) being amenable to be made by the landlord, and, hence the apt leave being not affordable. In making the initial submission, the learned counsel appearing for the petitioner/tenant has placed reliance, upon, a judgment rendered by the Hon'ble High Court of Delhi, in, a case titled as J.K. Kashuap vs. Rajiv Gupta and others, IA Nos. 4595 of 2012 and 2742 of 2012 in CS (OS) 2156 of 2007, the relevant paragraph No. 8 whereof stand extracted hereinafter:

"8. As already mentioned above the main objective of the plaintiff is to introduce the said three letters through the present amendment application as well as application filed by the plaintiff under Order 7, Rule 14 CPC. Under Order 13 Rule 1 CPC it is incumbent upon both the parties to produce the original documents before the settlement of issues in a case. Order 7, Rule 14 CPC also obligates the plaintiff to produce document upon which he has relied upon at the time of the presentation of the plaint and if not produced at that stage then such a document can be received in evidence only with the leave of the Court and not otherwise. For seeking leave of the Court the parties seeking to produce documents at a belated stage must satisfy the Court, that the said documents were not within his knowledge earlier or could not be produced by him at the appropriate time in spite of exercise of due diligence. In the facts of the present case the plaintiff has not given any reasons for not having produced the said documents at the time of the presentation of plaint or even before the settlement of issues. The plaintiff has also not referred to exchange of any such communication between him and Jamila Gupta either in the plaint or in the replication. Out of three letters two letters were alleged to have been received by the plaintiff from the Jamila Gupta and, therefore, it cannot be said that they were not in possession and power of the plaintiff. While dealing with the scope of Order 7 Rule 14 CPC this Court in the case of Gold Rock World Trade Ltd. Vs. Veejay Lakshmi Engineering Works Ltd. Reported in MANU/DE/8444/2007 : (2008) 149 PLR 40 held as under:

"Consequently, before leave of court can be granted for receiving documents in evidence at a belated stage, the party seeking to produce the documents must satisfy the court that the said documents were earlier not within Party's knowledge or could not be produced at the appropriate time in spite of due diligence. Conditions necessary before leave of court can be granted have been satisfied. It cannot be said that the plaintiff was not aware of the documents earlier, or that the same could not be produced in spite of due diligence on the part of the plaintiff. As the plaintiff was not diligent enough at that point of time, this Court is left with no alternative but to reject its request."

3. However, for the reasons to be assigned hereinafter, this Court cannot be coaxed, to, accept the aforesaid submission(s), as addressed before this Court, by the learned counsel appearing for the petitioner/tenant, given (a) even if, assumingly the afore parlance, is, acquired by the afore statutory coinage, as, occurring, in, the provisions of Order 7, Rule 14 of the CPC, and, also, hence meteing thereto, of a stricto sensu construction, may be warranted, (b) and, with the apposite document(s), rather not, in contemporaneity with the institution of the rent petition, being in existence, and, per se thereupon, the apt leave for its being tendered into evidence, rather was not accordable, (c) nonetheless, neither the factum of its subsequent preparation not its concomitant emergence, yet, cannot coax this Court, to, decline the apt leave for its being tendered into evidence, in its exercising, the apt discretion vested in it, under, the mandate engrafted in Order 7, Rule 14 of the CPC, (d) given its author, being averred in the apposite application, to be an expert, and, when hence the opinion of an expert, as, may emanate, even during the course of progress of a suit or of a rent petition, rather falls within the ambit of Section 45, of, the Indian Evidence Act, (e) and, when there is no proviso engrafted, underneath the provisions of Order 7, Rule 14 of the CPC, for, barring the opinion rendered by an expert, and, as embodied in his report, hence being permitted to be tendered into evidence, even when its emergence occurs subsequent, to, the institution of a petition or a suit, (f) thereupon, for want of afore statutory provisions, standing, borne in Order 7, Rule 14 of the CPC, for, hence, ousting the apt applicability, of the provisions, of Section 45 of the Indian Evidence Act, (g) therefrom, a firm conclusion, is, erectable qua hence the opinion or the report of an expert, even if emerges during the course of trial of a suit or of a rent petition, rather being permitted, to, with the leave of the court hence adduced into evidence or taken on record, (h) it being just and essential for resting the imperative factum probandum, as, in the extant case, is, the one appertaining to the apt bona fide requirement of the landlord, to, on anvil thereof, hence strive to receive an order of eviction of the tenant, from the demised premises.

4. Even if assumingly, the original building plan hence stands appended with rent petition, yet when it may not disclose with, the, utmost precision, and, with ultra specificity, as may, hence stand disclosed in the report, of, the expert, the utmost necessity, of, the landlord/respondent herein, hence, bona fidely requiring it, for personally using it, upon, its being vacated, under, order(s), of, eviction being rendered by the learned Rent Controller, (i) thereupon also when, the expert's report, upon, its adduction, may also hence support the utmost necessity of the landlord, and, further may enable, the, emergence, of, best evidence, vis-à-vis, his bona fide(s), in, seeking, the, eviction of the tenant/petitioner herein, therefrom, (ii) whereupon, the apt leave is granted, for its being tendered into evidence, given its affording, being concomitantly both just and essential, for resting the apt controversy.

5. Be that as it may, even otherwise, the courts of law, are, expected to lean towards granting the apt leave, dehors any afore stricto sensu, construction being meted to the afore coinage hence occurring in the aforesaid statutory provisions, (i) unless demonstrable prejudice would ensue, to the petitioner/tenant or unless the discretion exercised, by the courts, in, permitting its/theirs being tendered into evidence, is, visibly rather grossly flawed, (ii) given courts, upon, discerning, from, the pleadings, the, necessity of its/their adduction, hence, for resting a clear clinching finding, upon the apt issue, thereupon, may being constrained, to validly conclude qua the apt leave being rather accordable. Significantly, hereat when for reasons aforestated, the afore report of the expert, is both, just and essential, for enabling the applicant/landlord, to, prove the apt ground, and, when the petitioner herein/tenant, would also hold the right, to cross-examine him, and, when hence no palpable prejudice would stand encumbered, upon, the non-applicant/petitioner/tenant, thereupon, this Court is constrained, to affirm the impugned order.

6. For the foregoing reasons, there is no merit in the instant petition, and, it is dismissed accordingly. In sequel, the impugned order is maintained and affirmed. The parties are directed to appear before the learned trial Court, on 12th October, 2018. All pending applications also stand disposed of. Records be sent back forthwith.


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