IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CR No. 167 of 2002 Date of Decision: 12.5.2008 ________________________________________________________________ Shiv Dayal … Petitioner Versus Durga Dass … Respondent. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? For the Petitioner (s) : Mr. Sanjiv Sood, Advocate. For the Respondent(s) : Mr. M.S.Thakur, Advocate. ________________________________________________________________ Deepak Gupta, J. (Oral ). The petitioner, hereinafter referred to as the landlord, filed a petition for eviction of the respondent, hereinafter referred to as the tenant, from the premises consisting of one room, kitchen and verandah in the ground floor of the building known as Shiv Niwas, The Mall, Solan, HP. The eviction was sought on three grounds, (i) arrears of rent ;(ii) that the respondent-tenant had been allotted government accommodation reasonably sufficient for his use which he had occupied; and (iii) that he had got the premises locked continuously for a period of 12 months prior to the filing of the eviction petition. Only the landlord appeared in the witness box. In his statement before the learned Rent Controller, the landlord stated that the tenant - 2 - is in arrears of rent. He also stated that the tenant is a government servant and had been allotted government accommodation below ITI Complex, Solan. He has further stated that the government accommodation allotted to the tenant is much more spacious than the accommodation rented out to him. The only question put to him in his cross-examination in respect of this plea was that he could not tell the number of the government accommodation allotted to the respondent-tenant. The learned Rent Controller ordered the eviction of the tenant only on the ground of non-payment of arrears of rent. This amount has been deposited and, therefore, this question does not survive. Even in respect of the issue as to whether the respondent/tenant has ceased to occupy the premises, there is no evidence on record and this question has not been canvassed before me. As regards the issue whether the tenant had been allotted government accommodation and its effect, the learned Rent Controller rejected the contention of landlord only on the ground that other than the statement of PW1 Hem Chand Sud, there is no material on record to show that the tenant has been allotted government accommodation. Surprisingly, the learned Rent Controller has relied upon the written statement filed by the respondent- tenant in coming to the conclusion that the landlord has failed to prove that the tenant had been allotted government accommodation. Adverse inference, if any, under the provisions of the 114(g) of the Indian Evidence Act should have been drawn against the tenant, since it was he who did not appear in the case. He was the best person to have proved his version of the case. - 3 - After the petition was rejected, the landlord filed an appeal and along with appeal filed an application under Order 41 rule 27 CPC for leading evidence, to prove the orders of allotment and factum of allotment from the government record and to prove that the tenant had been allotted and occupied government accommodation. In fact in this court also the petitioner has filed an application under Order 41 rule 27 CPC as well as another application for placing on record certain documents to show that the tenant did occupy the government accommodation. I have heard learned counsel for the parties. I am of the considered view that the learned Rent Controller did not properly appreciate the evidence. Even the lower appellate court took a highly technical view while rejecting the application filed by the landlord for leading additional evidence. One of the grounds to be considered while considering an application under Order 41 rule 27 CPC is whether the evidence is required by the court to enable it to pronounce judgment or for any substantial cause. Evidence which was sought to be produced by the landlord would have definitely helped the court to pronounce judgment and to advance the cause of justice. In my view the landlord should have been permitted to lead the additional evidence. The learned lower appellate court in my view had taken an erroneous view in holding that the landlord was not diligent. The landlord had given details of the area where the government accommodation was situate and had on oath made a statement with regard to this allotment. The tenant did not appear in - 4 - the witness box. Probably, the counsel for the landlord thought that this evidence was sufficient in the matter. Be that as it may, the lack of due diligence, if any, is of the counsel and the same is not so serious that the landlord should be thrown out and should not be permitted to prove its case . Keeping in view the aforesaid discussion, the revision petition is allowed and the order of the learned Rent Controller dated 23.11.2000 passed in Rent Petition No. 12/2 of 1994 as well as the order of the appellate authority dated 15.1.2002 passed in CMA No. 2 of 2001 are hereby quashed and set aside. The matter is remanded to the Rent Controller for decision afresh. It is made clear that the case is being remanded only in respect of the issue relating to allotment of government accommodation to the tenant. On this issue alone the learned Rent Controller shall permit both the parties to lead fresh evidence as prayed for in the applications moved before the lower appellate court and this Court. Needless to say that the respondent- tenant shall have the liberty to rebut the same. Since the matter is an old one, the learned Rent Controller shall make an earnest endeavour to decide the matter as early as possible and not later than 31st March, 2009. Parties through their counsel are directed to appear before the learned Rent Controller, Solan on 1st July, 2008. The Registry is directed to send all the records of the case to the trial Court so as to reach there well before the date fixed. Parties are left to bear their own costs. CMPs. No. 242/02, 520/07 & 980/07 - 5 - In view of the order passed in the main matter, all the CMPs are also disposed of. May 12, 2008 ( Deepak Gupta ), J. s.