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2014 Supreme(Del) 2836
DELHI HIGH COURT
Valmiki J. Mehta, J.
Bhagwant Singh Decd. Thr. Lrs. - Appellant
Versus
Gurcharan Kaur & Anr. - Resopndent
CM(M) No. 1184/2010 & CM No. 16527 of 2010 (stay)
Decided On : 20-08-2014
For the Petitioner:Mr. Ram Niwas, Advocate.
For the Respondents:Mr. S.C. Singhal, Advocate.
The discretionary powers under Article 227 of the Constitution of India are not exercised if no injustice results from the impugned order, and bringing in correct and actual evidence will assist the court in arriving at a correct conclusion.
Headnote:
Eviction Petition - Appointment of Local Commissioner - Delhi Rent Control Act, 1958, Section 14(1)(j), Section 14(10)
Fact of the Case:
The petition challenges the order of the first appellate court allowing the appointment of a local commissioner to report on unauthorized additions and alterations to a tenanted premises under Section 14(1)(j) of the Delhi Rent Control Act, 1958.
Finding of the Court:
The court held that the appointment of a local commissioner to determine the status of construction at the premises was justified and that challenging the order indicated possible concealment of facts by the petitioner.
Issues: The main issue was the appointment of a local commissioner at the stage of final arguments and the relevance of additional evidence in determining substantial damages to the tenanted premises.
Ratio Decidendi: The court emphasized that the discretionary powers under Article 227 of the Constitution of India are not exercised if no injustice results from the impugned order, and that bringing in correct and actual evidence will assist the court in arriving at a correct conclusion.
Final Decision: The petition was dismissed, leaving the parties to bear their own costs.
1. This petition under Article 227 of the Constitution of India impugns the order of the first appellate court dated 12.7.2010 by which the first appellate court has allowed the application filed by the respondents/landlord (petitioner in the eviction petition) for appointment of a local commissioner/expert/architect for reporting the position of construction in the tenanted premises. The subject eviction petition is a petition under Section 14(1)(j) of the Delhi Rent Control Act, 1958 (in short ‘the Act’) and which provides that a tenant who makes unauthorized additions and alternations to a tenanted premises will be liable to be evicted when the unauthorized additions and alternations cause substantial damage to the premises. The provision of Section 14(1)(j) of the Act has to be read with the provision of Section 14(10) of the Act which states that eviction is not ordered if a tenant repairs the damage caused to the tenanted premises to the satisfaction of the Controller or pays to the landlord such amount of compensation as the Controller may direct.
2. Before I advert to the facts of the present case, it is necessary to state that the powers under Article 227 of the Constitution of India are discretionary powers. These discretionary powers are not exercised even if the impugned order is in some manner not strictly legal, once, there is no injustice which is being caused by the impugned order. Putting it differently, discretionary powers under Article 227 of the Constitution of India are not exercised if by exercising these powers injustice will be caused.
3. The main thrust on behalf of the petitioner/tenant for challenging the impugned order is that a local commissioner/expert/architect could not be appointed at the stage of final arguments because it would allow a person/respondents/landlord to fill up the lacunae in his case. It is also argued that local commissioners are not appointed by courts to collect evidence for the parties. Reliance is placed for the argument that local commissioners are not appointed to collect evidence for the parties on the judgments in the cases of Ghani Mohammad v. Jamaluddin and Others 29 (1986)DLT 497; Sanjay Namdeo Khandare v. Sahebrao Kachru Khandare and Ors. 2001 (3) Civil Court Cases 303 (Bombay) and Ram Kishan Taparia v. Shyamlal & Ors. 2000 (2) Civil Court Cases 199 (Rajasthan). In support of the arguments that an application for appointment of a local commissioner cannot be allowed because of delay in filing the same at the stage of final arguments and for filling up lacunae in evidence, reliance is placed upon the judgments in the cases of B.S. Nazir Hassan Khan v. Aswathanarayana Rao and others AIR 2004 KARNATAKA 92 and Tulamaya Chettri and another v. Yonarayan Pradhan and others AIR 2004 SIKKIM 39.
4. Per contra counsel for the respondents/landlord argues that once both the parties have led evidence and there is ambiguity with respect to existence or otherwise of substantial damages in the tenanted premises, then in such a position, in fact even an appellate court could have permitted leading of evidence under Order 41 Rule 27 of Code of Civil Procedure, 1908 (CPC). Learned counsel for the respondents/landlord also places reliance upon the Order 18 Rule 18 CPC which provides that the court can “at any stage” inspect a premises. Reliance is also placed upon a provision of Section 165 of the Evidence Act, 1872 which entitles a court to seek production of a document at any stage.
5. In my opinion, no doubt, it is not usual for courts to allow additional evidence at the stage of final arguments, however, it is not totally unknown that courts do allow evidence even at the stage of final arguments. Of course each case has to be examined as per its own facts and circumstances so as to decide whether the trial court is justified to permit leading of evidence even at the stage of final arguments.
6. In my opinion, the arguments urged on behalf of the petitioner/
