CR No.6773 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6773 of 2009 (O&M) Date of decision: 7.9.2011 Ranjeet Kumar alias Ranjeet Singh ......Petitioner(s) Versus Arya Samaj, Jaitu ......Respondent(s) CR No.7831 of 2009 (O&M) Ranjeet Kumar alias Ranjeet Singh ......Petitioner(s) Versus Arya Samaj, Jaitu ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Munish Kumar Singla, Advocate for the petitioner(s). Mr. Ashish Gupta, Advocate for the respondent. Rakesh Kumar Garg, J.(Oral) This order shall dispose of two revision petitions i.e. CR No.6773 and 7831 of 2009 having arisen out of similar questions of law and facts. However, for convenience sake the facts are being taken from CR No.6773 of 2009. This is tenant's revision petition challenging the impugned order dated 8.9.2008 of the Rent Controller, Faridkot ordering eviction of the petitioner and further the impugned judgment dated 5.9.2009 whereby the Appellate Authority dismissed the appeal of the petitioner against the aforesaid order of eviction. Briefly the facts of the case are that the respondent filed an ejectment application against the petitioner from the demised premises making the averments that he was landlord and the petitioner was a tenant CR No.6773 of 2009 (O&M) 2 of shop No.11 @ ` 600/- per month which was later on increased to ` 700/- per month. The petitioner paid rent upto May, 1997 and failed to make payment thereafter. It was further averred that the petitioner had also taken shop No.10 from the respondent on a monthly rent of ` 350/- and thus, total rent of both the shops was ` 1050/- per month. The petitioner failed to pay rent of both the shops after May, 1997 and thus, was liable to be ejected from the premises in dispute. Upon notice, the petitioner appeared and contested the ejectment application. In his written statement, the petitioner raised preliminary objections to the effect that the respondent has no locus standi to file the ejectment application as there was no relationship of landlord and tenant between the parties. The respondent was not the owner of the property in dispute. Rather the petitioner was in continuous, uninterrupted, hostile and in open possession of the land in possession on which the shops were constructed by him at his own expenses to the knowledge of all the inhabitants as well as the respondent and as such, he had become owner of the property in dispute. His possession was more than 45 years old. The ejectment application was not maintainable in the present form. On merits, averments made in the ejectment application were denied and dismissal of the said petition was prayed. On the basis of the pleadings of the parties, the following issues were framed: “1. Whether the applicant is landlord and respondent is tenant in the demised premises? 2. Whether the respondent is liable to be ejected for non-payment of the rent?OPA 3. Whether the applicant has no locus standi to file present application? CR No.6773 of 2009 (O&M) 3 4. Whether the application is not maintainable? OPR 5. Relief” In support of his case, the respondent-landlord examined three witnesses. AW-1 deposed on the basis of his affidavit reiterating the entire version as given in the ejectment application and also proved the documents consisting of resolution Ex.A1 certificate of registration, Ex.A2 copy of site plan, Ex.A3, copy of memorandum of association, Ex.A4, copies of rent receipts, Ex.A5 to Ex.A17 and copy of the original writing Ex.A18. AW2- Pawan Kumar Gupta also supported the version of AW1. AW3-Anil Kumar Gupta, Handwriting and Finger Prints Expert, Fazilka deposed on the basis of his affidavit Ex.AW3/A and proved his report Ex.AW3/1 and opined that the disputed signatures and standard signatures of the petitioner are similar in their writing characteristics and have been written by one and the same person. On the other hand, the petitioner himself appeared as RW-1 and thereafter, failed to conclude his evidence in spite of grant of number of opportunities and ultimately, the Court was left with no other alternative except to close his evidence by order on 6.6.2008. After considering the evidence on record and hearing learned counsel for the parties, the Rent Controller concluded that the respondent was landlord and the petitioner was tenant of the shop in dispute and being in arrears of rent, was liable to be ejected therefrom. Hence, issues No.1, 2 and 3 decided in favour of the respondent-landlord and against the petitioner. The onus to prove issues No.3 and 4 was upon the petitioner. While deciding these issues against the petitioner, the Rent Controller held that the petitioner was not able to show as to how the ejectment application was not maintainable and the respondent had no locus standi to file the suit. In view of the aforesaid findings, ejectment of the petitioner was CR No.6773 of 2009 (O&M) 4 ordered from the premises in dispute vide impugned order dated 8.9.2008. Feeling aggrieved from the aforesaid order of eviction, the petitioner filed an appeal before the Appellate Authority, Faridkot which was also dismissed vide impugned judgment dated 5.9.2009. The relevant paragraphs of the aforesaid judgment reads as follows: “I have gone through the record of the case and have heard the learned counsel for the parties. From the record, I find that the case of the applicant, as given in the application is that the respondent has taken the shop of the applicant on rent and has not paid the rent after May, 1997, whereas the case of the respondent as given in the reply is that no shop was taken on rent by him from the applicant and the shop has been constructed by the respondent himself over the land which is in possession of the respondent for the last more than 45 years. The applicant in support of its case examined A.W (1) Raj Paul Dod, who mainly deposed the same facts, as stated in the application. He tendered into evidence his affidavit Ex.AW(1)/A. He also tendered true copy of the resolution Ex.A1, certificate of registration Ex.A2, site plan Ex.A3, copy of the memorandum of the Association Ex.A4 and copies of the rent receipts Ex.A5 to Ex.A16. He has also proved the original writing dated 14.6.1996 Ex.A17. He stated that the respondent is the tenant of the shop No.11 and earlier the rate of rent was Rs.600/- per month and lateron the same was increased to Rs.700/- per month with the consent of the parties. The respondent has not paid the rent after May, 1997 and is liable to be ejected for non payment of arrears of rent. In cross-examination, he stated that the disputed shop was given on rent about 18/20 years back but he cannot tell the date, month and year when this shop has been given on rent. A.W (2) Pawan Kumar Gupta tendered into evidence his affidavit Ex.AW (2)/A. He also proved the copy of the resolution Ex.A1. CR No.6773 of 2009 (O&M) 5 He also deposed regarding the same documents Ex.A1 to Ex.A17, as proved by AW(1) Raj Paul Dod. Anil Kumar Gupta, Handwriting and Finger Prints Expert was examined as AW(3), who tendered into evidence his affidavit Ex.AW(3)/A. He also proved his report Ex.AW (3)/1 and negatives Ex.AW(3)/2 to Ex.AW(3)/11. He deposed that he examined and compared the disputed signatures alleged to be of Ranjeet Kumar appearing at mark Q1 on the writing dated 14.06.1995 and at mark Q2 on the rent receipt dated 17.01.1998, at mark Q3 on the rent receipt dated 24.4.1998, at mark Q4 on the rent receipt dated 15.6.1998, at mark Q5 on the rent receipt dated 21.7.1998 at mark Q6 on the rent receipt dated 15.9.1998, at mark Q7 on the rent receipt dated 12.1.1999 and at mark Q8 on the rent receipt dated 7.5.1999 with the standard signatures of Ranjeet Kumar appearing at mark R1 on the Vakalatnama and mark R2 on the service of the summons. In his opinion, the disputed signatures marks Q1 to Q8 and standard signatures of Ranjeet Kumar mark R1 and R2 are similar in their writing characteristics and have been written by one and the same person. On the other hand, the respondent Ranjeet Kumar himself appeared into the witness box as RW(1) and tendered into evidence his affidavit Ex.RW(1)/A. He mainly deposed the same facts, as stated in the reply. He stated that there is no relationship of landlord and tenant between the parties. The applicant is not the owner of the land on which the shops have been constructed and he is in continuous possession over the same for the last more than 45 years. In cross- examination, he stated that he has studied 3rd or 4th standard and he does not know English nor he signs in English. He denied his signatures on the Vakalatnama dated 6.1.2007. He also denied his signatures on the statement dated 6.5.2008. He admitted his signatures on the affidavit Ex.RW(1)/A. Then he lateron stated CR No.6773 of 2009 (O&M) 6 that he signs in English. He has no title document regarding the shops. He is in possession of two shops. He admitted his signatures on the receipt dated 10.1.1997. He denied his signatures on the receipt dated 10.12.1997. He again admitted his signatures on the receipts dated 24.4.1998, 15.6.1998, 21.7.1998 and 15.9.1998. Lateron, again he stated that he does not sign in English but in Hindi. No reliance can be placed on his statement. At one stage, he states that he does not sign in English and again he states that he signs in English and at the same time again he states that he does not sign in English but in Hindi. All this cross examination makes his statement not reliable and not believable. He denied his signatures on the Vakalatnama and statement recorded on 6.5.2008. On some receipts he has admitted his signatures and on some receipts he has denied his signatures. Further, I find that the respondent is doing the business in the shop but not producing any record to show his title over the same. Further, in cross-examination he admitted the fact of having received the summons from the Court. The respondent admitted his signatures on the original summons which are Ex.A18. The signatures of the respondent have been taken as standard signatures from the summons by handwriting and Finger Prints expert. The respondent admitted that the receipts Ex.A7, Ex.A13, Ex.A14 and Ex.A15 bears his signatures. There are also his signatures on Ex.A17 which is a writing regarding the increase of rent from 1.1.1995 with consent. Signatures on this writing have also been compared by the handwriting and Finger prints Expert. In view of the oral statement of the AWs along with the documentary evidence on the record and evidence of the Handwriting and Finger Prints expert, I find that the receipts regarding the payment of rent have been duly proved by the applicant. Therefore, the relationship of the landlord and tenant between the CR No.6773 of 2009 (O&M) 7 parties has been proved by the applicant by leading cogent oral as well as documentary evidence. On the other hand there is no other evidence of the respondent on record except his mere oral statement which is insufficient to rebut the oral as well as documentary evidence of the applicant. I have perused the impugned order dated 8.9.2008, passed by the court of Shri B.R. Garg, Rent Controller, Faridkot. It is based on reasoning and is correct as per law and does not require any interference from this Court and the same is upheld. Finding no merit in the appeal filed by the appellant- respondent the same is dismissed with costs. Counsel fee is assessed as Rs.1100/-. Memo of costs be prepared. Lower Court record be returned and the appeal file be consigned.” Still not satisfied, the petitioner-tenant has filed the instant revision petition challenging the orders of the Authorities below. In the grounds of revision, it is the specific case of the petitioner that before the Rent Controller, he had filed an application for leading additional evidence which remained undecided and thus, the order of eviction passed against him by the Rent Controller and dismissal of appeal by the Appellate Authority were liable to be set aside. In support of his case, learned counsel for the petitioner had also referred to some zimni order passed by the Rent Controller. This Court vide order dated 19.11.2009 had requisitioned the records. Noticing the contentions raised before this Court by the learned counsel appearing on behalf of the petitioner, the following order was passed by this Court on 13.1.2010: “Argues in favour of the invalidation of the impugned orders recorded by the learned Rent Controller and also the learned Appellate Authority by pointing out that an application for additional evidence filed by the petitioner remained undisposed of CR No.6773 of 2009 (O&M) 8 throughout. It was neither noticed by the learned Rent Controller nor by the learned Appellate Authority. In that context, learned counsel appearing on behalf of the petitioner invites attention of this Court to the relevant application, which appears at page Nos.131 to 135 of the Trial Court records. The reply filed by the party opposite appears at page Nos.137 to 141 thereof. The Trial Court records have been requisitioned in compliance with the order dated 19.11.2009 passed by a Coordinate Bench (Surya Kant,J.) of this Court. The obvious purpose of the requisition of the records was to ascertain the correctness or otherwise of the averment made by the learned counsel. Notice of motion for 5.4.2010. In the meantime, the operation of the impugned orders shall stand stayed. Sd/- (S.D. Anand) Judge January 13, 2010 At the time of hearing, learned counsel for the petitioner in support of the aforesaid contention, as noticed above, has relied upon judgments of this Court in Charan Singh versus Jagtar Singh 1999(1) PLR 719 to contend that whenever an application is filed for additional evidence prior to pronouncement of judgment, the Court is obliged to deal with such application in accordance with law and even if it is assumed for the sake of arguments that application was seriously not pressed by the applicant, it was mandatory for the Court to record it so in the ordersheet as there could be no waiver in relation to passing of orders. There is no dispute with the judgment of this Court as cited above. However, in view of the peculiar facts of this case, the aforesaid judgment is of no help to the petitioner. Admittedly, the evidence of the petitioner was closed by order of the Court on 6.6.2008. There is nothing on record to suggest that the CR No.6773 of 2009 (O&M) 9 said order was ever set aside. It is useful to refer to the application dated 30.7.2008 filed by the petitioner for leading additional evidence which reads thus: “1. That the above noted case is pending in this Hon'ble Court and is fixed for today. 2. That it is the plea of the respondent from very beginning that the applicant is not the owner of the property in question, and the relations of landlord and tenant between applicant and respondent are also specifically denied. 3. That now recently the respondent from its reliable sources came to know that even in the revenue record the applicant is not the owner of the property in question. The respondent approached the revenue Patwari for getting the certified copy of the revenue record, but the Patwari has flately refused to give any copy to the respondent. 4. That due to above said reason the respondent wants to lead more/further evidence by way of summoning and examination of the revenue Patwari, alongwith revenue record, i.e. Jamabandi, Mutations, Aks Sajra and other relevant record, regarding the property in question showing the ownership of the disputed property. 5. That leading of further/more evidence as mentioned above is very much essential for the just and proper disposal of the case, as it will bring the true facts to the light of the day, and will also help this Hon'ble Court to reach at a right conclusion of the case. 6. That if the respondent is not allowed to lead more/further evidence as mentioned above, then the respondent will suffer a huge and irreparable loss which cannot be compensated lateron, and it will amount to denial of justice to the innocent respondent. 7. That justice and equity also demands that the respondent should have been given an opportunity to CR No.6773 of 2009 (O&M) 10 lead more/further evidence to bring the true facts on record. 8. Hence, it is prayed that keeping in view the above facts, the respondent may please be allowed to lead further/more evidence, as mentioned above.” A perusal of the application filed by the petitioner before the Rent Controller would show that the said application does not conform to the provisions for granting permission to lead additional evidence. Not only this, in the aforesaid application, the petitioner has not mentioned the details of any evidence sought to be placed on record to support his case. It may also be noticed that in spite of the fact that the petitioner was aggrieved for not deciding the aforesaid application by the Rent Controller, yet the petitioner never raised any challenge to this omission on the part of the Rent Controller before the Appellate Authority. Admittedly, neither any objection was raised in the grounds of appeal nor any such argument was raised before the Appellate Authority. Not only this, even before this Court except raising the points, the petitioner has neither placed the said application for perusal of this Court on record nor has placed any evidence which he intended to lead by way of additional evidence as per his challenge made before this Court. From the perusal of the pleadings, it is clear that while denying the title of the respondent, the petitioner has set up his title on the demised shops being in adverse possession. However, the petitioner has not led any evidence on record to prove such a plea. By setting plea of adverse possession, the petitioner has admitted the title of the respondent-landlord over the suit property. Not only this, the petitioner in his statement has admitted signing of some of the rent receipts. The objection taken by the petitioner before this Court is that those receipts are inadmissible in CR No.6773 of 2009 (O&M) 11 evidence being photocopies of the original and have not been proved in accordance with law as there is no permission to lead secondary evidence of these documents. In support of his case, the petitioner has relied upon Karnail Singh versus M/s. Kalra Brothers, Sirsa 2009(2) RCR (Civil) 380. Again the objection is without any merit. These receipts were duly put to him and no objection was raised by the petitioner at that time regarding the admissibility. Moreover, the learned counsel representing the respondent-landlord has argued that originals were produced before the Rent Controller and the same were returned after seeing those receipts and photocopies were kept on record and for the said reason, no objection was raised by the petitioner regarding the admissibility of such receipts. Even before this Court, the respondent has produced the original carbon copies/counter foils of the said receipts. Therefore, no exception can be taken regarding the admissibility of these receipts before this Court. In view of the said findings, judgments in Charan Singh's case (supra) and Karnail Singh' case (supra) relied upon by the learned counsel for the petitioner are of no help to him. No other point is urged. No merits. Both the revision petitions are dismissed. September 7, 2011 (RAKESH KUMAR GARG) ps JUDGE CR No.6773 of 2009 (O&M) 12 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.7831 of 2009 (O&M) Date of decision: 7.9.2011 Ranjeet Kumar alias Ranjeet Singh ......Petitioner(s) Versus Arya Samaj, Jaitu ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Munish Kumar Singla, Advocate for the petitioner(s). Mr. Ashish Gupta, Advocate for the respondent. Rakesh Kumar Garg, J.(Oral) For orders, see CR No.6773 of 2009. September 7, 2011 (RAKESH KUMAR GARG) ps JUDGE