SURINDER KUMAR BAJAJ Vs. SHEELA RANI PASRICHA

JUDGEMENT

(1.) BOTH these petitions under Article 227 of the Constitution of India entail common question of law and fact and are taken up together for consideration. The petitions are preferred by two tenants from the eviction proceedings instituted by the respondent against each of them from adjoining shops. It appears that both the eviction petitions are pending before the same Additional rent Controller and are being taken up on the same day for hearing. These petitions have been filed challenging the identical orders dated 9th April, 2009 in each of the petitions for eviction.

(2.) IT appears that the respondent/landlady in support of her case has examined as PW3 an architect. A copy of the affidavit by way of examination in chief of the said witness has been placed on record. The said architect has deposed as to having inspected the premises with respect whereto petitions for eviction have been filed and having submitted a report with respect to the said premises including as to the changes made by the tenants therein. The said architect was partly cross examined by the counsel for the petitioners/tenants. During the said cross examination, the counsel for the petitioners/tenants sought to show certain photographs, allegedly of the premises in dispute, to the said architect in an attempt to falsify his report. The counsel for the respondent/landlady objected that the witness could not be confronted with the documents not on record. The said objection was upheld by the Additional Rent controller and it appears that the cross examination was deferred. The petitioners/tenants before the next date of hearing filed applications under order 8 Rule 1a of the CPC to file the said photographs. It was stated in the said applications that the said photographs could not be filed earlier as the occasion for filing the same occurred only upon the report being submitted by the architect. The Additional Rent Controller vide orders dated 9th April, 2009 in each of the petitions dismissed the said applications inter alia on the ground that witness can only be confronted with documents which are prepared by him or to which he is a witness or a scribe. Thus, it was held that the architect witness could not be confronted with the photographs. Yet another reason given was that the photographs were without negatives.

(3.) THIS court while issuing notice of the petitions stayed the further cross examination of the said architect witness. The respondent has filed a counter affidavit/reply contending that the petitions are not maintainable as the orders are merely procedural and do not affect the rights or liabilities of the parties and do not touch the merits of the case; that the petitioners have not exhausted the remedy of appeal before the Rent Control Tribunal. Besides the aforesaid pleas, the respondent has reiterated that a witness can only be confronted with documents which are prepared by him and to which he is a witness or a scribe.