1 IN THE HIGH COURT OF JUDICATURE FOR RAJASHAN AT JODHPUR ORDER SURENDERA SINGH VS. THE ADDITIONAL DISTRICT JUDGE (FAST TRACK) NO.3, JODHPUR & ANR. (S.B.C.WRIT PETITION NO.6429/07) Dated:- 7.3.2008. HON'BLE MR.JUSTICE SANGEET LODHA Mr.M.K.Trivedi, for the petitioner. Mr.Ashok Patel, for the respondents. BY THE COURT:- 1. This writ petition is directed against order dated 7.8.07 passed by the Additional District Judge(F.T.) No.3,Jodhpur in civil suit No.117/99, whereby the application preferred by the defendant-petitioner under Order 8 Rule 1(3) of C.P.C. has been rejected and the photo stat copies of the documents produced by the petitioner have been ordered to be kept in D-part of the file. 2. Briefly stated the facts of the case are that the respondent plaintiff no. 2 preferred a suit against the defendant petitioner u/s 6 of the Rajasthan Premises(Control of Rent and Eviction) Act, 1950 (in short “the Act of 1950” hereinafter) for fixation of standard rent of the premises let out, which is pending trial before the Additional District Judge (F.T.) No.3, Jodhpur. The respondent no. 2 has also preferred an application for fixation of 2 provisional standard rent u/s 7 of the Act of 1950. An application was preferred by the defendant-petitioner under Order 8 Rule 1(3)read with Section 115 of the Civil Procedure Code , for taking photo stat copies of certain receipts said to have been obtained from neighbouring tenants on record,so as to show the prevailing rent for similar premises in the same locality. It was stated in the application that the copies of the said receipts were not in possession of the defendant petitioner and therefore, the same could not be produced earlier. It was contended that the issues have not been framed and and party to the suit can file the documents before framing of the issues. It was further urged that suit relates to the period prior to amendment made in the Code of Civil Procedure by Amendment Act of 2002, therefore, the said documents could not be produced earlier alongwith written statement. It was submitted that these documents are relevant for adjudication of the application u/s 7 of the Act of 1950, therefore, the same are being produced, which may be taken on record. 3. A reply to the application was filed on behalf of the respondent plaintiff, wherein it was stated that there is no explanation set out in the application as to why these documents were not obtained by the petitioner from the persons concerned earlier. It was stated that the defendant has already cross examined the witnesses produced on behalf of the plaintiff under 3 the orders of the Court, therefore, the same cannot be taken on record at such a belated stage. It was urged that as a matter of fact, the application has been preferred to delay the determination of interim standard rent. 4. The learned trial Court after consideration of the material on record found that the receipts produced are not original and the same have also not been compared with the original, therefore, cannot be taken on record, accordingly the same have been ordered to be kept in D-part of the file. The learned trial Court opined that the application has been preferred with an intention to delay the proceedings. Accordingly, the application has been rejected by the learned trial Court with cost quantified at Rs.1000/-. 5. It is contended by the learned counsel that the receipts produced by the petitioner were supplied to him by the neighbouring tenants only on 6.2.07 , therefore, the same could not have been produced earlier. Learned counsel submitted that on the basis of these receipts,the petitioner intend to establish that the rent of the surrounding shops is not so high in comparison to the disputed premises occupied by the petitioner as tenant . The learned counsel contended that since the said receipts are relevant for fixation of interim standard rent u/s 7 of the Act of 1950, therefore, the learned trial Court should have taken the same on record. The learned counsel contended that 4 production of documents cannot be said to be belated inasmuch the issues have not been framed and as per the provisions of the Civil Procedure Code, 1908, as the same were existing prior to the amendment introduced by the Amendment Act, 2002, the parties were at liberty to file the documents at any stage before the framing of the issues. The learned counsel submitted that sub-rule (3) of Rule 1-A of Order 8 confers a right on the Court to receive the documents in evidence which ought to be produced in the Court by the defendant but, has not been produced. In this regard, the learned counsel has relied upon a Bench decision of this Court in the matter of "Santveer Singh vs. Additional Civil Judge, Hanumangarh" [2004(2) DNJ(Raj.), 675]. 6. The learned counsel for the respondent no.2 reiterating the stand taken on behalf of the plaintiff before the learned trial Court submitted that since the documents were only photo stat copies of the receipts and if the same were relevant for adjudication of the controversy involved in the suit then, the petitioner could have obtained copies thereof even earlier. The learned counsel submitted that the application preferred at such a belated stage was apparently a delaying tactics adopted by the petitioner , therefore, the same has been rightly rejected by the learned trial Court . 7. It is to be noticed that the suit pending trial before the court below relates to fixation of standard rent in terms of 5 Section 6 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short 'the Act of 1950'). An application has also been filed for fixation of provisional rent in terms of Section 7 of the Act of 1950. As per sub section (3) of Section 6 of the Act of 1950, where for any reason it is not possible to determine the standard rent of any premises on the principle set out in sub section (2), the Court shall determine such rent inter alia having regard to the prevailing rent or standard rent, for similar premises in the same locality. Therefore, the documents i.e. photo stat copy of certain receipts said to be obtained from the tenants occupying the premises in the same locality cannot be said to be documents not relevant to the controversy involved in the matter. 8. It is not in dispute that the suit pending trial before the court below relates to the period prior to amendment made in the Code of Civil Procedure by Amendment Act, 2002. The amendment introduced vide Amendment Act, 2002, has come into force w.e.f. 1.7.02. Admittedly, the written statement was filed by the defendant before the amended provisions of C.P.C. came into force. It is also not in dispute that according to the provisions prevailing during the period prior to the amendment as aforesaid, the documents could have been filed by the defendant before the framing of the issues. 9. It is stated by the petitioner in the application preferred 6 that the documents in question were not in his possession and he has obtained the copies thereof from the persons concerned only on 6.2.2007. It is true that the petitioner could have made an attempt to procure the said documents even earlier but then, the fact remains that these documents were not in possession of the petitioner and same have been produced as soon as the same are received. It is pertinent to note that in the suit pending even issues have not been framed and, therefore, on the facts and in the circumstances of the present case, at this stage the application preferred by the petitioner, cannot be said to be belated. 10. As per the provisions of Order VIII Rule 1-A (3) of the C.P.C. (As Amended by Amendment Act, 2002), a document which ought to be produced by the defendant in the court along with the written statement but not so produced, shall not without the leave of the court be received in evidence on his behalf at the hearing of the suit. 11. While dealing with the application under Order VIII Rule 1 A(3) of C.P.C., for taking the documents on record in the suit wherein, the written statement has been filed by the defendant prior to coming into force of the aforesaid amended provisions, the fact that as per the provisions then existing, the documents could have been filed even after filing of the written statement,before the framing of the issues, cannot be ignored. 7 That apart, while considering the application preferred in terms of Order VIII Rule 1-A(3), the relevance of the documents for the just decision of the controversy involved is a relevant consideration. In my considered opinion, on the facts and in the circumstances of the case, the learned trial court was not justified in drawing the inference that the application has been preferred by the petitioner so as to delay the proceedings of the suit. 12. In Santveer Singh's case (supra) relied upon by the counsel for the petitioner, the Division Bench of this Court has taken the view that where written statement in the case was filed before the amended provision of Order VIII Rule 1(3) came into force, documents filed by the defendants at the stage of their evidence could not have been rejected. Thus, the rejection of the application of the petitioner by the learned trial court treating it to be a delaying tactics, cannot be sustained. 13. Yet, another ground on which the application preferred by the petitioner has been rejected by the learned trial court is that the documents produced are neither original nor compared with the original, therefore, the same cannot be taken on record. It is not the law that the photo stat copies of the documents cannot be taken on record and the document produced should be either original or it should be compared with the original. If the photo 8 stat copies of the documents produced is permitted to be taken on record on the application preferred by the petitioner, it will not by itself make the documents admissible in the evidence, if the same are not otherwise admissible in evidence. As a matter of fact, at this stage, the court was not required to pronounce on the admissibility of the document produced, it is the question which can be determined by the court at the appropriate stage when such objection is raised. Therefore, in my considered opinion, the court was not justified in rejecting the application on the ground that the documents produced are not original or compared with the original. 14. The learned counsel appearing on behalf of the respondent while drawing the attention of this Court to the recent decision of the Division Bench of this Court in the matter of 'Kamal Kishore & Ors. Vs. State of Rajasthan' wherein it has been held that non obstante clause contained in Section 32(3)(a) of the Rent Control Act, 2001 (for short 'the Act of 2001'), saving pending proceedings shall not be applicable in case of fixation of standard rent or provisional rent under Section 6 & 7 of the Act as having been impliedly repealed and shall be governed by the provisions of the Act of 2001, submitted that in view of the said decision, now the documents produced cannot be said to be of any relevance. Suffice is to say that such question does not arise out of 9 the order impugned in the present writ petition, therefore, the same is not required to be gone into by this Court. The parties are free to make their submissions in this regard before the learned trial court. 15. Thus, in view of the discussion above, the writ petition succeeds, it is hereby allowed. The order impugned passed by the learned trial court rejecting the application of the petitioner preferred for taking the documents on record, is set aside. The application is allowed. The documents produced are permitted to be taken on record. No order as to costs. (SANGEET LODHA),J.