CR No.6202 of 2010 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6202 of 2010 (O&M) Date of Decision:10.3.2011 Harkewal Kaur and another . . .Petitioners Versus Sri Krishan Aggarwal and another . . . Respondents ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.Vijay Lath, Advocate, with Mr.Naveen Sharma, Advocate, for the petitioners. None for the respondents. ***** RAKESH KUMAR JAIN, J (ORAL) This revision petition is directed against order dated 31.8.2010 passed by Rent Controller, Jalandhar by which an application filed by the landlord for leading additional evidence in order to place on record Income Tax Return of the sub-tenant (respondent No.2) for the year 2008-2009 and also to examine the Income Tax Officer concerned to prove that the sub-tenant is paying rent of the demised premises to respondent No.1 has been declined on the ground that evidence of the petitioners has been closed by order of the Court which has remained unchallenged. In this regard, reliance was placed on “Bhim Raj Vs. Jai Bhagwan” 2002(2) PLR 208. In brief, the facts of the case are that a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short ‘the Act’) was filed by the petitioners seeking eviction of the tenant, inter alia, on the ground of arrears of rent, cease to occupy, subletting and also that the premises has become unfit and unsafe for human habitation. On the pleadings of the parties, issues were framed on 18.10.2004. The ground of subletting was added by way of amendment of the petition on the basis of which an additional issue 6-A was framed on 24.5.2006, which is reproduced as under: CR No.6202 of 2010 (O&M) - 2 - “6-A Whether the respondent No.1 has sublet the premises to respondent No.2? OPA. In the cross-examination, Shri Krishan Aggarwal (RW1) stated that he and his son have not filed Income Tax Return till date. At that time petitioners were not aware that respondent No.2 is an income tax payee but on enquiry, they found that he is income tax assessee and has filed his Income Tax Return for the year 2008-2009. The petitioners also obtained copy of the Income Tax Return for the assessment year 2008-2009 and in order to prove it they wanted to produce it on record and also wanted to examine an Income Tax Officer. Learned counsel for the petitioners has also submits that in the normal circumstances if the order by which the evidence is closed is not challenged, the additional evidence cannot be allowed but the additional evidence which is sought to be produced on record was not within the knowledge of the petitioners despite exercise of due diligence, therefore, it deserves to be allowed. In this regard, he has relied upon decisions of this Court in the case of “Ved Parkash Vs. Raj Rani Singla” 2000(3) PLR 489, “Aggarwal Cotton Waste Co. Vs. Shree Singhai Spinners Pvt. Ltd.” 2004(1) PLR 781, “Phuman Singh and another Vs. Hazara Singh and others” 2009(3) PLR 232, “Pawan Kumar Vs. Raj Kumar and others” 2007(1) PLR 761, “Bhajan Singh & others Vs. Karnail Singh” 2010(3) RCR (Civil) 355. No one has put in appearance on behalf of respondents despite service. After hearing learned counsel for the petitioners, I find that the revision petition is meritorious and deserves to succeed. Initially eviction petition was filed on the ground of non-payment of rent, cease to occupy and that the demised premises has become unfit and unsafe for human habitation, which was contested by the respondents and the issues were framed accordingly. But during the pendency of the revision petition the landlord came to know that demised premises has been sublet by respondent No.1 to respondent No.2, and as such the eviction petition was amended and the ground of subletting was also taken on the basis of which an additional issue was framed on 24.5.2008 and burden was placed upon the petitioners to prove it in affirmative. Till that time the petitioners were not aware that respondent No.2 is an income tax assessee but when Shri Krishan Aggarwal (RW1) was CR No.6202 of 2010 (O&M) - 3 - examined, he stated that neither he nor his son was income tax assessee and they had not filed any Income Tax Return till date. Thereafter, petitioners inquired from the office of Income Tax that respondent No.2, who is in possession of the demised premises and is tenant of respondent No.1 is an income tax assessee and has filed his Income Tax Return for the assessment year 2008-2009. This led to the filing of an application for additional evidence praying for examination of the Income Tax Officer concerned with the original record but the said application has been declined merely on the ground that once the evidence has been closed by order of the Court, additional evidence cannot be permitted. Insofar as the decision in the case of Bhim Raj (Supra) is concerned, which has been relied upon by the Rent Controller, in that case it was observed that after closing of the evidence additional evidence cannot be led unless it is shown to the Court that despite exercise of due diligence the said evidence was not within their knowledge. In the case of Ved Parkash (Supra), it was held that despite due diligence the execution of dissolution dated 20.11.1992, which was not within the knowledge of the plaintiff in the said case, came to their notice at final stage and the defendants had also withheld the said information from the Court. In this background, the additional evidence was allowed. In the case of Aggarwal Cotton Waste Co. (Supra), the stage was of rebuttal evidence. The plaintiff filed application for additional evidence to prove Sale Tax Form submitted on behalf of defendant. The additional evidence was allowed on the ground that it would advance the cause of justice because it is the document of the defendant. Similarly in the present case Income Tax Returns are of the sub-tenant from which the petitioners wanted to prove that he is paying rent to respondent No.1. In the case of Phuman Singh and another (Supra) it was held that if it is really essential for just and proper decision of the case, the Court can allow additional evidence. In the case of Pawan Kumar (Supra), this Court was of the view that if the trial Court has shut a material piece of evidence which goes to the root of the matter and is required for just and proper adjudication of the case, additional evidence can be allowed. In the case of Bhajan Singh (Supra), it was held that the additional evidence can be led at belated stage if the party satisfies the Court that despite exercise of due diligence the said evidence was not within his knowledge or could not be produced when the evidence was led. CR No.6202 of 2010 (O&M) - 4 - In view of the aforesaid, I am of the view that the learned Court below has committed an error of law in dismissing the application for additional evidence filed by the petitioners, who wanted to produce the Income Tax Return and wanted to get it proved by examining Income Tax Officer concerned in order to show that respondent No.2 is in possession as a sub-tenant of respondent No.1 and is paying rent to him. Thus, the present revision petition is allowed. (RAKESH KUMAR JAIN) MARCH 10, 2011 JUDGE Vivek