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2009 DIGILAW 1842 (RAJ)

Mithlesh Jain v. Rent Tribunal

2009-08-18

M.N.BHANDARI

body2009
JUDGMENT 1. - By this writ petition, a challenge has been made to the orders passed by the Rent Tribunal, Sawai Madhopur as well as Rent Appellate Tribunal, Sawai Madhopur. By the aforesaid orders, application for eviction of the tenant was allowed. 2. An application under Section 9 of the Rent Control Act, 2001 (for short `the Act of 2001') for eviction was filed by the non-petitioner/applicant on the ground of necessity of shop for the plaintiff's son and for the plaintiff himself. In the said application, allegation of default in making payment of rent and availability of alternative shop to the defendant were also made, but not pressed. After exchange of the pleadings, the parties submitted their affidavits. Petitioner moved an application to seek permission to cross-examine applicant's witnesses. The prayer made therein was not accepted by the Rent Tribunal, however, it was observed that if necessity arises to permit the cross-examination, order would be passed at the time of final hearing. 3. The Rent Tribunal allowed the application for eviction vide its order dated 12.8.04. The order of eviction was passed on the ground of personal necessity of the plaintiff and at the same time, necessity of applicant's son was not accepted. Aggrieved by the order of the Rent Tribunal, both landlord and tenant filed appeals before the Rent Appellate Tribunal. The Rent Appellate Tribunal dismissed the appeals filed by both the parties. 4. Petitioner has preferred this writ petition to challenge the orders of Rent Tribunal as well as Rent Appellate Tribunal mainly on the ground that issue of plaintiff's personal necessity has wrongly been decided because plaintiff is at the age of 80 years and otherwise retired almost more than 20 years back, thus he cannot have personal bonafide necessity of shop in dispute. The other ground raised is that petitioner was not permitted to cross-examine applicant's witnesses and an application moved in that regard was not decided while the final argument was made. Thus, in view of the aforesaid, it is stated that orders of Rent Tribunal as well as Rent Appellate Tribunal deserve to be quashed and set aside more so when petitioner made a request to permit him to cross-examine applicant's witnesses even while appeal was pending consideration. 5. Learned counsel for petitioner submits that cross-examination is a valuable right of the parties which otherwise cannot be denied unless there is sufficient reason. 5. Learned counsel for petitioner submits that cross-examination is a valuable right of the parties which otherwise cannot be denied unless there is sufficient reason. Referring to the judgments of the Rajasthan High Court, it has been projected that rejection of the prayer for cross-examination should be an exception. Referring to the judgment in case of Ramswaroop v. Charanjeet Singh & Ors., 2008 (1) WLC (Raj.) 47 , it has submitted that same issue came up for consideration before the Division Bench wherein it was held that to follow the principles of natural justice, cross-examination should be permitted by the Tribunal other than in exceptional circumstances, thereby permission of cross-examination should be a rule and denial to be an exception. It is urged that same view was taken in other cases also. In that regard, a reference of the judgment of the Division Bench of this Court delivered in the case of Tek Chand v. State & Ors., 2005(3) DNJ (Raj.) 1346 has been given apart from the reference of the judgment in the case of Aasandas v. State of Rajasthan & Ors., 2005(1) DNJ (Raj.) 431 . Thus, the submission of learned counsel for petitioner is to set aside the orders passed by the Tribunals below. 6. Learned counsel for respondents, on the other hand, submits that it is a case where concurrent finding of fact regarding personal necessity of the plaintiff exists, thus while exercising the jurisdiction under Article 226 of the Constitution of India, this Court should not interfere In finding of facts. It is submitted that issue of personal necessity of plaintiff was well considered and decided by the Tribunal without perversity, hence, a challenge to the concurrent finding of fact by the petitioner is not sustainable more so when it is in a writ petition filed under Article 226 & 227 of the Constitution of India. Reference of a judgment of the Hon'ble Apex Court in the case of Sadhana Lodh v. National Insurance Co. Ltd. & Anr., 2003(2) WLC (SC) Civil 255 : (2003) 3 SCC 524 has also been made. 7. Reference of a judgment of the Hon'ble Apex Court in the case of Sadhana Lodh v. National Insurance Co. Ltd. & Anr., 2003(2) WLC (SC) Civil 255 : (2003) 3 SCC 524 has also been made. 7. Learned counsel for respondents further submits that on the application to seek permission to cross-examine applicant's witnesses, Rent Tribunal did not grant permission as affidavits submitted by the parties were basically reiteration of the pleadings, yet to further visualise the issue, Rent Tribunal observed that if necessity is felt at the time of final hearing, cross-examination would be permitted. The matter was finally heard and looking to the nature of the controversy involved, it was not felt necessary by the Rent Tribunal to call the other party to cross-examine the witnesses, thus no illegality has been committed in not accepting the prayer of the petitioner to permit him to cross-examine applicant's witness. 8. It is stated that Rajasthan Rent Control Act, 2001 was brought with intention to provide mechanism of summary proceedings to avoid delay in disposal of the cases. The provisions of the Act of 2001 provide procedure for completion of the pleadings and to lead evidence by submitting affidavits and documents. Section 21 of the Act of 2001 gives discretion to the Court to call the witnesses for cross-examination. According to learned counsel for petitioner, it is discretion of the Court to call witnesses for cross-examination which otherwise cannot be claimed by the party as a matter of right. In fact, no application is maintainable for observing the provisions of Section 21 of the Act of 2001. In the instant case, the Rent Tribunal did not find any reason to call upon the applicant's witnesses to be cross-examined by the petitioner herein and accordingly, petitioner's prayer for cross-examination of the witnesses if it is found necessary at the time of final hearing. It is submitted that the aforesaid issue is not open for consideration by this Court as it is sole discretion of the Tribunal. It is submitted that the aforesaid issue is not open for consideration by this Court as it is sole discretion of the Tribunal. In reference to he judgments cited by learned counsel for petitioner, it is urged that permission of cross-examination cannot be said to be a part of principles of natural justice and if that would have been so then the provisions of Section 21 of the Act of 2001 should have been struck down but a challenge to the constitutional validity of the provisions was not accepted and provision is held to be intra-vires. According to learned counsel for non-petitioner, the very object of the Act of 2001 would be frustrated if same procedures as provided under the Civil Procedure Code would be applied and this aspect was otherwise considered by the Division Bench of this Court in the case of Mahmud Khan v. State of Rajasthan & Ors., 2006 (1) RLW 380 . It is stated that in the aforesaid case, the Division Bench appreciated the object of the Act of 2001 while deciding the issue as to whether cross-examination should be permitted as a rule or as an exception. In the aforesaid judgment, it was held that cross-examination cannot be claimed as a matter of right. In view of the above, it is prayed that writ petition may be dismissed. 9. I have considered the rival submissions of the parties and scanned the matter carefully. 10. The writ petition basically involves two issues; one pertaining to denial of an opportunity of cross-examination and second regarding erroneous finding of fact on the issue of personal necessity. Averting to the first issue if the provisions of Section 21 of. the Act of 2001 are looked into, then it becomes clear that the provisions of Civil Procedure Code, 1908 would not be applicable on the Rent Tribunal or the Appellate Rent Tribunal. However, the Tribunal is required to be guided by the principles of natural justice and subject to other provisions of the Act and the Rules, but then the Tribunal shall have power to regulate its own procedures. The aforesaid provisions give powers to the Tribunal to regulate its own procedures but then it should be in conformity to the principles of natural justice. The aforesaid aspect came up for consideration before the Division Bench in the case of Ramswaroop v. Charanjeet Singh and others (supra). The aforesaid provisions give powers to the Tribunal to regulate its own procedures but then it should be in conformity to the principles of natural justice. The aforesaid aspect came up for consideration before the Division Bench in the case of Ramswaroop v. Charanjeet Singh and others (supra). In the aforesaid judgment, it was held that if a party prays for cross-examination of the witnesses, then such prayer must not be denied ordinarily unless such prayer have been made to unnecessarily delay the proceedings. Paras 13 to 19 are quoted hereunder for ready reference- "13. It is true that the Rent Tribunal or for that matter Appellate Rent Tribunal are not bound by the procedure laid down by the Code of Civil Procedure, 1908. This is specifically provided in Section 21(3). However, the procedure followed by the Rent Tribunal in every case before it has to be in conformity with the principles of natural justice. Though sub-section (1) of Section 21 provides that the evidence of a witness before the Tribunal (original as well as appellate) shall be given by affidavit but it makes it clear that if in the opinion of the Tribunal and in the interest of justice, the witness needs to be called for examination or cross-examination and that such witness may be produced before it, the Tribunal may order such witness to be produced before it for examination or cross-examination. The expression "may order attendance for examination or cross-examination of such a witness" though reflects that it is not imperative for the Tribunal to order attendance for cross-examination of a witness in each and every case but looking to the power being exercised by the Rent Tribunal and the nature of the order that may be passed by it including the order of eviction, ordinarily, unless strong reasons are shown by the other side otherwise, the permission for cross-examination must follow as it advances the cause of justice. It cannot be overlooked that the Rent Tribunal constituted under the Act of 2001 is a substitute of the Civil Court for deciding the dispute's between the landlord and the tenant for eviction, rent and other incidental matters. Though the procedure is summary and that the Tribunal is not bound by the procedure prescribed in the Code of Civil Procedure, it needs no emphasis that such procedure must be guided by the principles of natural justice. Though the procedure is summary and that the Tribunal is not bound by the procedure prescribed in the Code of Civil Procedure, it needs no emphasis that such procedure must be guided by the principles of natural justice. Actually this is provided in Section 21 itself. How does the Tribunal get convinced about the veracity of the affidavit filed by a party in support of his case unless such witness is allowed to be cross-examined by the other side. After all, the Tribunal is supposed to record a finding of fact on due appreciation of the evidence having come before it. The deposition of a witness by way of affidavit without cross-examination, ordinarily, may not enable the Tribunal to properly and adequately decide about truthfulness of the deposition. The discretion given to the Rent Tribunal or for that matter to the Appellate Rent Tribunal in calling a witness for examination or cross-examination under Section 21(1) of the Act of 2001, is a judicial discretion and has to be founded on good reason. After all, cross-examination is a valuable right, in the context of principles of natural justice, given to a party against whom a particular evidence is set up and if prayed for, must not be denied ordinarily unless such prayer is found to have been made to unnecessarily delay the proceedings or is seen to be actuated with motive. 14. In the case of Aasandas v. State of Rajasthan & others, RLW 2005 (2) Rajasthan, 1281 though there was challenge to the vires of Section 21 of the Act of 2001, the Division Bench did not deem it necessary to enter into that controversy but with regard to the procedure envisaged in Section 21 in paragraphs 13,14 and 15 held thus : "(13). On the pleadings of the parties which we have noticed above. This issue before the Rent Tribunal was one about the requirement of the applicant of the sit premises for his own personal use. What was the necessity for which the eviction was sought and the defence taken by the respondents were also before the Tribunal. It is not the requirement of the law before a witness to cross-examine can be called that a questionnaire should be sent to the Court in advance disclosing what questions are to be asked to the witnesses so that witness can be tutored in advance. It is not the requirement of the law before a witness to cross-examine can be called that a questionnaire should be sent to the Court in advance disclosing what questions are to be asked to the witnesses so that witness can be tutored in advance. It is always for the Court to consider on the basis of pleadings and issues framed; what are the essentials to be proved and that is to be kept in mind by the Court while permitting the examination and cross-examination of the witnesses and not to deviate from this basic requirement of placing the material before it. Instead of discharging its obligations to have a control over its procedure and about what is relevant or irrelevant, it cannot scuttle a fair trial to the litigants of getting into the truth about the allegations, but finding a short cut by not permitting cross-examination of witnesses in most cases as a matter of course where the dispute relates to the questions of fact and findings depends on testimony of statement on oath of either parties, results in breach of principle of natural justice which is otherwise required to be followed by any Tribunal entrusted with the task of dispensation of justice even in the absence of any specific rule. (14) The Rent Control Act does not prohibit adherence to the basic principles of natural justice keeping in view of the controversy which the Court has to decide. The Rent Tribunals taking the view that as a matter of course cross-examination is not to be permitted, without considering the controversy which is required to be decided and the materials other than affidavit available on record which can help in assessing the necessity of cross-examination of witnesses, in our opinion, cannot be said to be right in their approach. It is the obligation of the Rent Tribunal while considering the application for cross-examination to consider pleadings, the facts to be proved by the other party, besides the affidavit, the other material which can help in assessing the requirement of leading evidence and then to decide whether in a given case, permission to cross-examination will be refused. The refusal may be in rare cases. Ordinarily, where the question of facts depends on oral testimony, the cross-examination of deponent has to be permitted when demanded. The refusal may be in rare cases. Ordinarily, where the question of facts depends on oral testimony, the cross-examination of deponent has to be permitted when demanded. (15) It may further be noticed that sub-section (3) of Section 21, on the one hand clearly provides that the Rent Tribunal and the Appellate Rent Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but on the other hand, it clearly ordains that they shall be guided by the principles of natural justice and subject to other provisions of this Act. It inheres into it that ordinarily, statement of any witness ought not to be accepted unless he being cross-examined, if such cross-examination is demanded." 15. The Division Bench emphasised that ordinarily where the question of facts depends on oral testimony, the cross-examination of deponent has to be permitted when demanded. The observations that we made above are in line with the view of the Division Bench in the case of Aasandas. 16. The counsel for the respondents, however, invited out attention to another Division Bench judgment of this Court in the case of Mahmud Khan v. State of Rajasthan & Others, 2006 (1) RCJ 248 . In the case of Mahmud Khan the Division Bench in paragraph 5 quoted part of paragraph 10 of the decision in Aasandas in holding that the view of the Tribunal before them did not require any interference. 17. As a matter of fact in paragraph 10, in the case of Aasandas, the Division bench reproduced the reasoning of the Tribunal in rejecting the prayer for cross-examination and then in paragraph 11 commenced that the reasoning of the Tribunal was unsustainable. This is what was observed in paragraphs 10 and 11 in Aasandas case. "(10). 17. As a matter of fact in paragraph 10, in the case of Aasandas, the Division bench reproduced the reasoning of the Tribunal in rejecting the prayer for cross-examination and then in paragraph 11 commenced that the reasoning of the Tribunal was unsustainable. This is what was observed in paragraphs 10 and 11 in Aasandas case. "(10). The Appellate Court while accepting that the application for cross-examination ought to have been decided, has again rejected the prayer on the ground that under the provisions of the Rent Control Act, 2001 the expression "where it appears to it that it is necessary in the interest of justice to call a witness for examination or cross-examination" given out that only where it is felt necessary to call a witness for examination or cross-examination, such witnesses can be produced and that requirement of calling a witness in the witness box is not necessary and since in the present case, the applicant has not given the details on what aspects he wants to cross-examine the non-applicant, it cannot be considered to be in the interest of justice to permit cross-examination." (11) This approach, in our opinion, is unable to sustain itself." 18. The Division Bench in the case of Mahmud Khan has not dissented with the earlier decision of the Division Bench in Aasandas. Being a coordinate Bench, the Division Bench in the case of Mahmud Khan was bound by the earlier Division Bench decision in Aasandas. Had the Division Bench doubted the correctness of the decision in the case of Aasandas, the Bench would have referred the matter to the larger Bench. Thus, in the case of Mahmud Khan, the observations in paragraph 6 of the report are confined to the fact situation obtaining therein. 19. We have already indicated above that the proceedings before the Tribunal (original and appellate) are not governed by the Code of Civil Procedure and to that extent the provisions of the Code of Civil Procedure are not applicable to such proceeding. However, the procedure before the said Tribunal has to be in conformity and in consonance with the principles of natural justice. However, the procedure before the said Tribunal has to be in conformity and in consonance with the principles of natural justice. Though cross-examination of the witnesses of the opposite party cannot be claimed as a matter of right, yet such right being very valuable right since the order of the Tribunal may be seriously prejudicial, upon the application made by a party for cross-examination of the witnesses of the other party, unless the circumstances justify denial thereof in the interest of justice, ordinarily such prayer deserves to be granted." 11. Perusal of the aforesaid paras of the judgment shows that Division Bench has considered earlier judgments and thereupon drawn its conclusion. Outcome of the judgment in the aforesaid case is that ordinarily prayer for cross-examination is to be granted. Learned counsel for respondents has relied on the judgment in the case of Mahmud Khan (supra) which otherwise was considered by the Division Bench in the case of Ramswaroop. In the case of Mahmud Khan, the Division Bench of this Court held that opportunity of cross-examination of the witness cannot be claimed as a matter of right, thus a different view has been taken by the Division Bench, then what was held in the case of Aasandas and also in the case of Tek Chand. The fact, however, remains that in a subsequent judgment of Ramswaroop, all the three earlier judgments were considered and thereafter findings have been recorded. 12. It is true that Section 21 of the Act of 2001 provides that the Tribunal should adhere to the principles of natural justice and right of cross-examination is taken to advance the cause of principles of natural justice, it was held that cross-examination should ordinarily be permitted. Since I am bound by the judgment of the Division Bench, thus present case has to be decided accordingly i.e. after applying the ratio of the judgment in the case of Ramswaroop (supra). It is though necessary to mention that separate Tribunals than Civil Courts were constituted under the Act of 2001 to come out from the difficulties of delay in disposal of the cases related to rent control and to achieve the object, the Tribunals are not bound by the procedures of the Civil Code rather liberty is given to regulate their own procedures which should be after following the principles of natural justice. The Tribunal was given discretion to call the witness for cross-examination in a given case. 13. In view of the above, there exists no requirement under Section 21 of the Act of 2001 for a party to make an application claiming right of cross-examination. Further, it is for the Tribunal to decide as to whether a witness to be called for cross-examination to advance the cause of justice, thus discretionary power of the Tribunal cannot be summed up by holding that it is mandatory for the Tribunal to use its discretion to call a witness for cross-examination. The outcome of the judgment in the case of Ramswaroop (supra) is literally to call the witness for cross-examination unless strong reasons are given to deny the same, which according to me goes contrary to the object of the Act of 2001. In fact, while exercising the jurisdiction under Article 226 & 227 of the Constitution of India, the High Court is only to see as to whether discretionary powers given to the Tribunals have rightly been exercised or not. In any case, since I am bound by the judgment of the Division Bench of this Court as otherwise mentioned above, the matter is to be decided after considering the ratio of the judgment of the Division Bench in the case of Ramswaroop (supra). 14. In the present matter while initial order was passed by the Rent Tribunal, prayer for cross-examination of witness was denied keeping it open to re-examine the issue at the time of final hearing in case it is felt necessary. If the ratio of the Division Bench judgment in the case of Ramswaroop is applied, no strong reasons are given by the Tribunal to deny cross-examination of the witness and even nothing has been mentioned by the Rent Tribunal while deciding the matter finally as to why cross-examination should not be permitted. Thus, looking to the aforesaid, the impugned orders deserve to be set aside and accordingly the impugned orders are set aside. 15. Since the first issue is decided in favour of the petitioner and accordingly matter is required to be remanded back to the Rent Tribunal, hence, the second issue pertaining to finding of fact needs not to be taken. Thus, looking to the aforesaid, the impugned orders deserve to be set aside and accordingly the impugned orders are set aside. 15. Since the first issue is decided in favour of the petitioner and accordingly matter is required to be remanded back to the Rent Tribunal, hence, the second issue pertaining to finding of fact needs not to be taken. It is, however, true that otherwise concurrent finding of facts by the two Tribunals cannot be interfered by this Court while exercising its jurisdiction under Article 226 & 227 of the Constitution of India. The aforesaid view is supported by the judgment of the Hon'ble Apex Court in the case of Sadhana Lodh (supra). 16. In view of the above, writ petition is allowed and the matter is remanded back to the Rent Tribunal with a direction to restore the file for fresh consideration of the matter in accordance with law after providing an opportunity of cross-examination of witnesses. The parties are directed to appear before the Rent Tribunal, Sawai Madhopur on 27.8.2009. The Rent Tribunal is directed to decide the application for eviction expeditiously and, if possible, to decide the same within a period of three months from the date of appearance of the parties. Cost is made easy.Writ Petition allowed. *******