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2013 DIGILAW 1660 (RAJ)

Jamil Ahmed v. Vaibhav Singh

2013-09-19

VIJAY BISHNOI

body2013
JUDGMENT 1. - This writ petition has been preferred by the petitioner against the order dated 12.07.2013 whereby the Additional Chief Judicial Magistrate (Rent Tribunal), Jodhpur Metropolitan (hereinafter referred to as 'the learned Tribunal') in Case No. 138/2013, has rejected the application preferred by the petitioner for allowing him to cross-examine the respondent on the affidavit filed by him in the proceedings initiated at his instance under Section 24 of the Rajasthan Rent Control Act, 2001 (hereinafter referred to as 'the Act of 2001') 2. The brief facts of the case are that the respondent has filed an application under Section 24 of the Act of 2001 before the learned Tribunal with a prayer that he should be allowed to replace the old tiles with new tiles on the floor of the shop No. 4 situated at ITI Circle, Shopping Center, Industrial Area, Saras Dairy Road, Jodhpur, in which, he is the tenant. In support of the application under Section 24 of the Act of 2001, the respondent has filed his affidavit before the learned Tribunal. 3. The petitioner-landlord moved an application under Section 21 of the Act of 2001 with a prayer to allow him to cross-examine the respondent on certain points. 4. The said application was rejected by the learned Tribunal vide order dated 12.07.2013, while observing that under the provisions of the Act of 2001, it is provided that an application under Section 24 of the Act of 2001, should be decided at the earliest and the matter can be decided on the basis of affidavit and documents produced by the parties. 5. The learned counsel for the petitioner has argued that in the affidavit of the respondent, filed in support of application under Section 24 of the Act of 2001, he has mentioned certain facts, on which, he is required to be cross-examined by the petitioner, but the learned Tribunal, without appreciating the said aspect of the matter, has dismissed the application in a mechanical manner. It is further contended by the learned counsel for the petitioner that where oath against oath comes before the Court in the form of affidavits, denial of opportunity to cross-examine the deponent-witnesses on their affidavits occasions failure of justice. 6. It is further contended by the learned counsel for the petitioner that where oath against oath comes before the Court in the form of affidavits, denial of opportunity to cross-examine the deponent-witnesses on their affidavits occasions failure of justice. 6. The learned counsel for the petitioner, while placing reliance on the decision of this Court in Aasandas v. State of Rajasthan & Ors., reported in 2005 (1) DNJ (Raj.) 431 , has prayed that the impugned order may be quashed and set aside and the petitioner may be allowed to cross-examine the respondent on the affidavit. 7. Per contra learned counsel for the respondent has supported the impugned order passed by the learned Tribunal and prayed for dismissal of the writ petition. 8. Heard learned counsel for rival parties and perused the record. 9. It is true that in the proceedings under the Act of 2001, it is the discretion of the learned Tribunal to allow any party to cross-examine a witness, however, where a party disputes the facts stated in a particular case and desires to cross-examine the deponents, ordinarily such cross-examination has to be granted. 10. This Court in the case of Aasandas v. State of Rajasthan & Ors. (supra) has observed as under:- "8. Moreover, it is to be taken note of that discretion vested under Section 21 is not a discretion merely to deny the just prayer for permitting a party to cross-examine the witnesses. The right of cross-examination in a mechanical way may not have been permitted by the Rent Tribunal as a matter of course but it has been empowered to vouchsafe a fair trial of eviction application. At the same time, it has to be kept in mind that even under the existing provisions of Code of Civil Procedure where the applications are required to be decided on affidavits, where a party disputes the facts stated in a particular case and desires to cross-examine the deponents, ordinarily such cross-examination has to be granted." 11. In such circumstances, when the respondent has stated several facts on oath in his affidavit and the petitioner desires to cross-examine him, the learned Tribunal should have granted the prayer of the petitioner. 12. In view of the above discussions, this writ petition is allowed. The impugned order dated 12.07.2013 is quashed and set aside. In such circumstances, when the respondent has stated several facts on oath in his affidavit and the petitioner desires to cross-examine him, the learned Tribunal should have granted the prayer of the petitioner. 12. In view of the above discussions, this writ petition is allowed. The impugned order dated 12.07.2013 is quashed and set aside. The application preferred by the petitioner for allowing him to cross examine the respondent is allowed.Petition Allowed. *******