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2008 DIGILAW 572 (RAJ)

Uma Lamba v. Rent Tribunal, Jodhpur

2008-02-22

GOPAL KRISHAN VYAS

body2008
JUDGMENT 1. - By this petition filed under Article 227 of the Constitution of India, the petitioner is challenging the judgment passed by the Rent Tribunal, Jodhpur dated 23.7.2005 in Original Application No. 2/2005, so also the order of Appellate Rent Tribunal, Jodhpur dated 28.7.2007 passed in Rent Control Appeal No. 25/2005, whereby the appellate Court upheld the judgment passed by the Rent Tribunal,Jodhpur by which the learned Tribunal passed the judgment and certificate for eviction against the petitioner and in favour of respondent No. 3. 2. In this petition, the petitioner has specifically stated that though the plea was taken by him in the written statement filed before the Rent Tribunal against the application filed for eviction on the ground of bone fide personal necessity by the respondent No. 3, in which it was submitted by the petitioner that non-petitioner No. 3 has sufficient accommodation in the city as alternative place to start his clinic, so also the non-petitioner No. 3 admitted the existence of accommodation in the city but stated that the same is insufficient. 3. According to the petitioner, the learned Tribunal did not provide opportunity to cross-examine the witnesses whose affidavits were filed by the applicant-respondent No. 3 before the Tribunal, therefore, petitioner did not get occasion to prove the measurement of the premises of non-petitioner No. 3 situated in the city and to further prove that said premise is sufficient for him to pursue his business. Therefore, the learned Tribunal has committed an error while not providing an opportunity to cross examine respondent No. 3 and his witnesses upon their affidavits. According to petitioner before the Appellate Tribunal also, an application under Section 21 of the Rajasthan Rent Control Act, 2001 was filed but the learned appellate Court rejected the same while observing in para No. 14 that the said prayer was not made before the Rent Tribunal so also the averments made in the application filed in appeal are ambiguous, therefore, it is not proper to allow the petitioner to cross examine the witnesses of respondent No. 3. 4. Upon aforesaid rejection, the learned counsel for the petitioner argued that as per Section 21 of the Act of 2001, an opportunity to cross examine the witnesses can be given at the Appellate stage also. 4. Upon aforesaid rejection, the learned counsel for the petitioner argued that as per Section 21 of the Act of 2001, an opportunity to cross examine the witnesses can be given at the Appellate stage also. Further, it is submitted that it was the duty of the Rent Tribunal to allow cross examination in the interest of justice because the plea was taken by the petitioner in his written statement before the Rent Tribunal that applicant-respondent No. 3 is having an alternative premises where he can pursue his business. But, the learned Rent Tribunal did not provide the opportunity of cross examination, so also when specific application was filed by the petitioner under Section 21 of the Act before the learned Appellate Court, the Appellate Court also dismissed the application on wrong premise. Therefore, both the judgments deserve to be quashed. 5. Learned counsel for the petitioner invited the attention of the Court towards the judgment of Division Bench of this Court reported in 2005(1) DNJ (Raj.) 431, Aasandas v. State of Rajasthan & Ors. and another judgment reported in 2008(1) WLC 47, Ramswaroop v. Charanjeet Singh & Ors. and contended that in the aforesaid cases opportunity of cross examination was allowed and the orders of learned Rent Tribunal as well as Appellate Tribunal were set aside. Relying on the aforesaid cases, it is submitted that petitioner is entitled to get an opportunity of cross examination and it is prayed that both the judgments impugned may be set aside and the matter may be remitted to the trial Court with a direction to provide an opportunity to cross examine the witnesses, who have filed their affidavits before the Court. 6. On the other hand, counsel for the respondent No. 3 vehemently argued that concurrent finding of both the Courts below do not require interference by this Court because the petitioner had not filed any application before the Rent Tribunal for seeking cross examination, so also before the Appellate Court a vague application was filed in which no reasons whatsoever were mentioned for granting opportunity of cross examination. 7. Learned counsel for the respondent No. 3 further argued that in this case the purpose of seeking cross examination of witnesses is only to delay the matter and somehow for any reason not to vacate the premises for which judgment and decree for eviction has been passed by the Rent Tribunal, Jodhpur. 7. Learned counsel for the respondent No. 3 further argued that in this case the purpose of seeking cross examination of witnesses is only to delay the matter and somehow for any reason not to vacate the premises for which judgment and decree for eviction has been passed by the Rent Tribunal, Jodhpur. 8. I have considered the rival submissions of both the parties. 9. It is true that in the Rajasthan Rent Control Act, 2001, under Section 21 there is a provision for filing application to cross examine the witnesses even at the appellate stage. In the present case, suit was filed for eviction on the ground of bona fide personal need and before the Rent Tribunal no application for summoning the witnesses for cross examination was filed. Further, at appellate stage, an application was filed to cross examine the witnesses but in that application no reasons whatsoever have been assigned by the petitioner. The application filed by the petitioner reads as under: " lsok esa] Jh vihy fdjk;k vf/kdj.k] tks/kiqjA vihy la[;k% 25@2005 rkjh[k is'kh % 27-10-2005 mek yEck cuke jkts'k lksuh izkFkZuk i= vUrxZr /kkjk 21 ,oa 15 jktLFkku fdjk;k fu;a=.k vf/kfu;e] 2001 Jhekuth] mijksDr izdj.k esa fdjk;k vf/kdj.k us vihyk.V fdjk;snkj dks /kkjk 15 ds vUrxZer jsLiksMs.V }kjk izLrqr fd;s x;s 'kiFk i=ksa ij ckotwn ekaxs tkus ds izfrijh{k.k dk volj vihyk.V dks ugha fn;kA vr% izkFkZuk gS fd Jheku bl izdj.k dks fdjk;k vf/kdj.k tks/kiqj dks Hkstdj mUgsa funsZ'k nsa fd vihykFkhZ fdjk;snkj dks jsLiks.Ms.V ds 'kiFkZdrkZ dk izfrijh{k.k djus dk volj iznku djsaA tks/kiqj Jheku dh vihykaV }kjk odhy ( jktsUnz diwj ) fnukad % 27-10-2005 ,MoksdsV " 10. Upon perusal of this application, it is clear that no reason whatsoever has been assigned for cross-examination of witnesses, who filed their affidavits before the Court. Similarly, upon perusal of Section 21 of the Act of 2001, it is clear that opportunity of cross examination cannot be claimed as a matter of right. It is for the Tribunal to decide whether such cross-examination is necessary in the interest of justice or not. When prayer made is vague and ambiguous then Tribunal can reject such application. 11. In Aasandan's case (supra), the application filed before the Rent Tribunal for cross-examination was not decided and the application for eviction itself was decided by Tribunal. It is for the Tribunal to decide whether such cross-examination is necessary in the interest of justice or not. When prayer made is vague and ambiguous then Tribunal can reject such application. 11. In Aasandan's case (supra), the application filed before the Rent Tribunal for cross-examination was not decided and the application for eviction itself was decided by Tribunal. The Appellate Rent Tribunal also while accepting that the application for cross-examination ought to have been decided, rejected the said prayer. In these circumstances, this Court quashed the orders passed by both the Courts below and remitted the case to Rent Tribunal. 12. The facts of the present case are altogether different. In this case, no application was filed before the Rent Tribunal and at appellate stage application under Section 21 of the Act was filed, which was rejected on the ground that said application does not contain any reason and is vague and ambiguous. Therefore, the decision in Aasandan's case (supra) does not apply in the present case. 13. With regard to second judgment cited by learned counsel for the petitioner in case of Ramszoaroop (supra), the Division Bench of this Court held that the order passed by the Rent Tribunal declining the tenant's prayer for cross examination of the landlord's witnesses on issues No. 1 to 4 does not record any reason as to why grant of such permission was not in the interest of justice. The Court further held that the application made by the tenant under Section 21 of the Act of 2001 was not found vague and unspecific by the Rent Tribunal as the Tribunal granted cross-examination on issue No. 5. In the present case, upon perusal of the application itself it is clear that it is not only unspecific but is totally ambiguous and that too was filed at the appellate stage. Therefore, the facts of Ramszoaroop's case (supra) are also distinguishable from the present case. 14. Upon aforesaid discussion, I am of the opinion that the concurrent findings upon merit of the case recorded by both the Courts below do not require any interference by this Court under Article 227 of the Constitution of India.Accordingly, this petition is dismissed.Petition dismissed. *******