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2012 DIGILAW 537 (PNJ)

Karan Bagga v. Paramjit Mahey

2012-04-03

G.S.SANDHAWALIA

body2012
JUDGMENT Mr. G.S. Sandhawalia J.(Oral) - The present revision petition arises from impugned order dated 13.01.2011, Annexure P1 wherein the Rent Controller, Jalandhar has recorded that PW1 and PW2 have been examined and the petitioner has closed his evidence and fixed the case for the evidence of the respondent. 2. The counsel for the petitioner-tenant submits that PW1 and PW2 have not been allowed to be cross-examined and the Rent Controller, Jalandhar has acted with illegality and irregularity in passing the impugned order. Sequence of events is necessary for deciding the present controversy. 3. PW1 and PW2 had tendered their affidavits by way of evidence on 27.04.2010 and 08.11.2010 before the Rent Controller, Jalandhar and the case was adjourned to 15.09.2010 and the following order was passed: “Present: Sh.V.K.Sareen counsel for the petitioners. Sh.Ramit Arora counsel for the respondent AW-1 examined in chief. His cross-examination deferred. Now to come up on 08.11.2010 for cross examination of AW-1 at own responsibility. Remaining evidence of applicant be also produced on the said date at own responsibility.” Thereafter, similar order was also passed regarding PW2 on 08.11.2010 which reads as under: “Present: Counsel for the parties. PW2 is present and examined in chief. His crossexamination is deferred for 2.12.2010. PW-1 present for cross-examination is also bound down for the date fixed.” On 02.12.2010, the said petitioner witnesses were present but were not examined and were bound down for 07.01.2011 for cross-examination subject to last opportunity along with costs of Rs.100/- to be deposited in the legal aid fund and it was further directed that the remaining evidence would be produced on the said date. On 07.01.2011, the said witnesses were not present and the respondent also moved an application that the counsel has gone out of station and accordingly, the case was adjourned to 13.01.2011 for the evidence of the landlord on his own responsibility subject to last opportunity on an additional cost of Rs.100/-. Thereafter, on 13.01.2011, the impugned order was passed which reads as under: “Present: Counsel for the parties. PW-1 and PW-2 examined. Petitioner closed his evidence. Now to come up on 07.02.2011 for evidence of the respondent.” 4. Thereafter, on 13.01.2011, the impugned order was passed which reads as under: “Present: Counsel for the parties. PW-1 and PW-2 examined. Petitioner closed his evidence. Now to come up on 07.02.2011 for evidence of the respondent.” 4. Counsel for the petitioner, accordingly, has submitted that on 07.01.2011, the witnesses were not present and the counsel for the tenant was present but cross-examination of witnesses could not be conducted on account of their absence and accordingly, the case had been adjourned to 13.01.2011 and the Rent Controller had fixed the case for evidence of the respondent. The counsel for the respondent contends that vide separate order of the same day, the Rent Controller has noted that opportunity was given and the witnesses were present and cross-examination was recorded as nil and thus, the impugned order was passed and seeks to justify the impugned order and points out that the order has been passed on 13.01.2011 and the present petition has been filed on 13.02.2010 and thus, there is delay in approaching this Court. 5. The submission of the counsel for the respondent is not acceptable. Perusal of the orders reproduced above go on to show that after the 2nd landlord witness has tendered his affidavit on 08.11.2010, the case was adjourned to 02.12.2010 and cost of Rs.100/- was imposed and the witnesses were bound down for the next date of hearing as they had not been examined. However, on the next date i.e., 07.01.2011, they were not present, and therefore, could not be cross-examined though the counsel for the appellant was present though he had filed a written request for adjournment. On the next date, without giving any reasons, the opportunity had been treated as nil and in the order dated 13.01.2011, the Rent Controller had given no reasons as to why or on what account, crossexamination of witnesses had been treated as nil though he had stated that opportunity was given in the statement of the witnesses. Once counsel for the parties were present on that date, it was for the Presiding Officer to record on what account the respondents were not wanting to cross-examine the witnesses of the landlord. The Rent Controller had not noticed whether the costs were paid or not and whether on that account, he was closing the right of the tenant to cross-examine the witnesses. The Rent Controller had not noticed whether the costs were paid or not and whether on that account, he was closing the right of the tenant to cross-examine the witnesses. The petition had been filed on account of bona fide personal necessity of the landlord and nonpayment of rent. It would be necessary for the tenants to cross-examine the landlord witnesses in order to bolster up their case. The order passed by the Rent Controller adversely effects the rights of the tenant without giving any justifiable reasons and thus, cannot be sustained and suffers from irregularities and illegalities. 6. The second submission of the counsel for the respondent is that there is delay in approaching this Court is also without any substance. Counsel for the petitioner has pointed out that thereafter, on 10.06.2011, the tenant was proceeded against ex parte and an application was filed for setting aside the ex parte proceedings and the same were only set aside on 06.01.2012 and thus, the present revision petition has been filed once the ex parte proceedings have been set aside and the proceedings started in the main case. Accordingly the present revision petition is allowed and the order dated 13.01.2011 whereby the Rent Controller, Jalandhar has closed the evidence of the tenant by recording that opportunity was given and there has been no cross-examination, is set aside. Counsel for the tenant is permitted to cross-examine PW1 and PW2 on the next date of hearing or as and when they are produced by the counsel for the landlord. 7. Accordingly, the revision petition is allowed in the above terms. ---------0.B.S.0------------