SUDHIR KUMAR Vs. GULAB DEVI

JUDGEMENT

(1.) THE present petition has been filed by the petitioner -defendant, challenging the order dated 15/2/2014 passed by the Civil Judge (Junior Division), Gangapurcity, District Sawai Madhopur (hereinafter referred to as 'the Trial Court') in Civil Suit No. 71 of 2002, whereby the Trial Court has dismissed the application of the petitioner filed under Order XI, Rule 21 of CPC seeking dismissal of the suit on the ground of non -compliance of the order dated 20/11/2009.

(2.) THE respondent -plaintiff has filed the suit for eviction and arrears of rent against the petitioner -defendant on the ground of personal and bona fide requirement in respect of the suit shop. It has been alleged in the plaint that the suit shop was let out to the petitioner on 1/6/1997. The petitioner -defendant filed the written -statement denying the allegations, and further contending inter -alia that one rent note was executed by the petitioner in favour of Raghuanand son of the respondent, and thereafter on 1/2/1994, another rent note was executed in favour of the respondent. The petitioner -defendant subsequently filed an application under Order XI, Rule 12 and 14 seeking direction against the respondent -plaintiff to produce the rent notes dated 15/09/1986 and 1/2/1994, which application was allowed by the Trial Court vide the order dated 20/11/2009, directing the respondent -plaintiff to produce both the rent notes in original along with the affidavit on the next date of hearing. The respondent -plaintiff, thereafter on 16/1/2010 submitted an application stating inter -alia that the observation made by the Court in the order dated 20/11/09 to the effect that the counsel for the respondent -plaintiff had admitted the possession of the said two rent notes with her, was not correct, and the said part of observation was required to be deleted from the said order. On the same day i.e. on 16/1/2010, she also filed another affidavit to the effect that the rent note dated 15/9/1986 was never executed by the defendant in her favour, and therefore the question of producing the said rent note by the respondent -plaintiff did not arise and that the rent note dated 1/2/1994 was not traceable and therefore she was unable to produce the same. Of course, on 2/7/2013, the respondent submitted an application stating that the rent note dated 1/2/1994 was found out by her and the same shall be produced, however, the alleged rent note dated 15/9/1986 was not in her power or possession. It further appears that the petitioner -defendant however had submitted an application dated 25/3/2010 under Order XI, Rule 21 for dismissal of the suit of the respondents on the ground of non -compliance of the order dated 20/11/2009 passed by the Court. The said application has been dismissed by the Trial Court vide the impugned order dated 15/2/2014.

(3.) HAVING regard to the submissions made by the learned counsel Mr. Gupta for the petitioner, and to the impugned order passed by the Trial Court, as also the other documents on record, it transpires that the application under Order XI, Rule 12 filed by the petitioner -defendant requesting the Court to direct the respondent -plaintiff to produce the two rent notes dated 15/9/1986 and 1/2/1994 was not replied to by the respondent -plaintiff, and therefore the Trial Court had passed the order on 20/11/2009, directing the respondent to produce both the rent notes and file the affidavit. In response to the said order, the respondent -plaintiff had sought modification in the said order vide the application dated 16/1/2010 contending inter -alia that the observation made by the Court in the order dated 20/11/2009 to the effect that the said rent notes were in possession of the respondent -plaintiff was required to be deleted, as the same were not in power and possession of the respondent. The respondent on the same day had also filed the affidavit stating inter -alia that the alleged rent note dated 15/9/1986 was never executed by the petitioner -defendant in her favour, and therefore the question of producing the original of the same did not arise, and that the rent note dated 1/2/1994 was not traceable and therefore could not be produced. It further appears that subsequently the respondent -plaintiff had filed the application on 2/7/2013 having found the rent note dated 1/2/1994, she would produce the same, however, the rent note dated 15/9/1986 was not in her power and possession, and therefore was not in a position to produce the same.