Prem Chand Jain v. Usha Gupta

V.B.GUPTA, J. ab

* HIGH COURT OF DELHI : NEW DELHI CM (M) No. 1006/2010 & CM No. 13753/2010 % Judgment reserved on: 4th Aug, 2010 Judgment delivered on: 06th Aug, 2010 Sh. Prem Chand Jain, S/o Sh. Dhanna Lal Jain, R/o A-14, Green Park Extension, New Delhi. ….Petitioner Through: Mr. Ravi Gupta. Sr. Adv. with Mr. Ankit Jain, Adv. Versus Smt. Usha Gupta, W/o Late Sh. Rajinder Prasad Gupta, R/o 862/6, Mehrauli, New Delhi. ….Respondent Through: Nemo. Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. Petitioner has filed this petition under Article 227 of the Constitution of India for setting aside order dated 4th June, 2010, passed by Additional District Judge, Delhi. 2. Brief facts of this case are that respondent herein, in the year 2004 filed a suit for recovery of possession as well mesne profit against present petitioner on the ground that petitioner is a tenant of respondent with respect of land measuring 1400 Sq. yds in property bearing no. 893, Ward No. 8, Mehrauli, New Delhi at monthly rent of Rs.2000/-. 3. Petitioner in his written statement stated that he is a tenant in respect of premises admeasuring 2000 sq. yds. along with the superstructure existing thereon and not 1400 sq. yds. as alleged by respondent. 4. During the course of trial, petitioner filed an application under Order 26 Rule 9 read with Section 151 Code of Civil Procedure (for short as "Code") for appointment of Local Commissioner to inspect the premises and prepare a report accordingly. 5. Trial court vide its order dated 25th September, 2008, dismissed that application. 6. In 2009, petitioner filed another application under Order 8 Rule 1A (3) read with section 151 of the Code, stating that petitioner engaged Er. B. P. Singh to inspect the property in dispute and prepare a true and correct plan thereof. Petitioner may be allowed to produce the inspection report along with plan and examine Er. B. P. Singh, as a witness. Vide impugned order, this application was dismissed by the trial court. 7. It is contended by learned counsel that trial court erred in holding that application has been filed on 29th September, 2009, while report is dated 6th October, 2008. The Court failed to take into consideration that during most of the aforesaid period, parties were negotiating for an amicable settlement and when settlement talks failed thereafter this application was filed. 8. Another contention is that since report of engineer was not even in existence at the time of filing of the list of witnesses, there was no occasion for petitioner to mention the name of Er. B. P. Singh, in the list of witnesses. 9. Lastly, it is contended that petitioner is not trying to raise any new plea since, he has already pleaded in written statement that he is in possession of 2000 sq. yds. 10. In support learned counsel has cited following judgments; (i) Ashok Sharma Vs. Ram Adhar Sharma, (2009) 11 Supreme Court Cases 47. (ii) Bank of India Vs. M/s. Goyal Textiles & Others, 2001 VII AD (DELHI) 1030. 11. Present petition has been filed under Article 227 of the Constitution of India. It is well settled that jurisdiction of this Court under this Article is limited. 12. Article 227 of The Constitution of India reads as under; "227. Power of superintendence over all courts by the High Court- (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. (2) Without prejudice to the generality of the foregoing provisions, the High Court may- (a) call for returns from such courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. (3) The High Court may also settle ta