The plaint makes a positive averment of a negative fact, that is, the absence of consent in writing of the landlord to raising of the permanent structure by the tenant over the tenancy premises. In the wake of such averment in the plaint, it was necessary for the tenant to have raised specific pleading in the written statement setting out the particulars of the consent in writing. Not only the particulars are not pleaded but event he factum of the landlord having given a consent in writing to the permanent construction is not stated. There is not even a whisper in the written statement of such consent, on which the tenant relies, having been ever given by the landlord and forming part of the record of the Municipal Corporation. If the Municipal Corporation had expressed its inability to make available certified copies of relevant records to the appellants, the appellants should have taken steps before the trial court for summoning the original record from the custody of the Municipal Authorities, which could have shown the bona fides of the plea raised by the tenant-appellant. Nothing such was gone. Similarly, no effort for production of the alleged consent on writing of the landlord appears to have been made during the pendency of the proceedings before the appellant court. In this background, the High Court rightly declined to show its indulgence to a belated prayer for summoning the record from the custody of the Municipal Corporation.
IN THE SUPREME COURT OF INDIA
Appeal (civil) 2500-2502 of 1998
Decided On: 20.11.2002
Vithal N. Shetti Vs. Prakash N. Rudrakar and Ors.
Hon'ble Judges/Coram:
R.C. Lahoti, Brijesh Kumar and Arun Kumar, JJ.
Citation: 2003 Bom RC 168
