ASHOK KUMAR Vs. SUKHVARSHA DIWAN

JUDGEMENT

(1.) THIS is a tenant's revision petition directed against the order dated 8.1.1996 passed by the Rent Controller dismissing his application seeking permission to lead secondary evidence to prove the rent note dated 5.11.1979.

(2.) BRIEF facts giving rise to the revision petition may first be noticed. Respondents No. 1 and 2 who are the landlords sought ejectment of the petitioner from the demised shop on the ground of non-payment of rent and also on the ground that he had sublet the premises without written permission of the landlords. After the landlords had let their evidence, the petitioner moved an application alleging therein that the shop in dispute was taken on rent from Hari Krishan Diwan and his brother Goal Krishan as per rent note dated 5.11.1979 and that Gopal Krishan had executed and signed the said rent note on his own behalf as well as on behalf of Hari Krishan. It was further alleged that the original rent note remained in possession of Gopal Krishan and that the same has not been placed on the record. A photo copy of the rent note was, however, placed on the file and it was pleaded that the rent note had been scribed by a deed writer. The prayer made in the application was for permission to the tenant to prove the rent note by secondary evidence as the rent note is very material to be placed on the file. The landlords filed their reply to the application and opposed the same. It was pleaded that the rent note had not been signed by Gopal Krishan and that but was a forged document. It was also alleged that the same had not been executed on a stamp paper and had not been registered in accordance with law and that since the existence of the original and its loss had not been proved the tenant could not be allowed to prove the document by leading secondary evidence. It was also asserted that Gopal Krishan had no authority to execute the alleged rent note on behalf of Hari Krishan.

(3.) I have heard counsel for the petitioners and perused the record. The respondents did not appear inspite of service. Gopal Krishan is said to have died on December 11, 1990 much before the ejectment petition was filed out of which the present revision petition has arisen. The question of serving notice on him to produce the original rent note, therefore, could not arise. According to proviso 6 to Section 66 of the Act such a notice is not required when the person in possession of the document is out of reach of or not subject to the process of the court. Since Gopal Krishan was dead he was not subject to the process of the court and therefore, the Rent Controller, in my opinion, was in error in rejecting the request made by the petitioner for leading secondary evidence. It is not in dispute that Gopal Krishan during his life time had filed an ejectment petition against the petitioner from the demised shop which was withdrawn when the tenant deposited the arrears of rent on the first date of hearing. In that petition for ejectment, Gopal Krishan had admitted that the demised shop had been given on rent on the basis of a rent note dated 5.11.1979. The existence of the original rent note is, thus admitted. It was a fit case in which the Rent Controller should have allowed the tenant to lead secondary evidence. The Rent Controller acted illegally and with material irregularity and in any case committed grave impropriety in not allowing the application. The view that I have taken finds support from a judgment of this Court in Mukhtiar Singh v. Bant Singh and another, 1991 S.C.C. 225.