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2013 DIGILAW 58 (RAJ)

Kishan Lal Dilliwal v. Moolchand Vishva

2013-01-09

ALOK SHARMA

body2013
Hon'ble SHARMA, J.—A challenge in this writ petition under Article 226 & 227 of the Constitution of India has been made to the order dated 26.3.2007, passed by the Rent Tribunal, Ajmer as also the order dated 21.7.2010, passed by the Rent Appellate Tribunal, Ajmer, whereby the petitioners-tenants (hereinafter `the tenants') have been directed to be evicted from the tenanted premises and a certificate of possession issued in favour of the respondent-landlord (hereinafter `the landlord'), Moolchand Vishva, on the ground of bona fide necessity. 2. The main foundation of this petition is that the tenants in the course of proceedings before the Rent Tribunal as also the Rent Appellate Tribunal were denied an opportunity of cross-examining the landlord Moolchand Vishva on his affidavit in evidence. Counsel for the tenants has relied upon a judgment of the Hon'ble Division Bench of this Court delivered in the case of Ramswaroop vs. Charanjeet Singh & Ors. (2008(1) WLC (Raj.) 47) to contend that Section 21 of the Rent Control Act, 2001 (hereinafter `the Act of 2001') has been construed by this Court as requiring as of right the cross-examination of a deponent of an affidavit filed in evidence in the course of proceedings before the Rent Tribunal. Reference has been made to para 15 of the aforesaid judgment where it has been held relying upon the judgment of Aasandas vs. State of Rajasthan & Ors. (RLW 2005(2) Rajasthan, 1281) that "ordinarily where the question of fact depends on oral testimony, the cross-examination of the deponent has to be permitted when demanded." Counsel for the tenants submits that the issue of bona fide necessity of the landlord before the Tribunal was a question of fact depending upon the landlord's oral testimony and in terms of the judgment of the Hon'ble Division Bench of this Court in the case of Ramswaroop (supra) on an application having been made by the tenants, they ought to have been allowed to cross-examine the landlord, Moolchand Vishva. It is submitted that the dismissal of the application for cross-examination of the landlord Moolchand Vishva on his affidavit in evidence filed before the Rent Tribunal tantamounts to a denial of principles of natural justice compliance wherewith is mandated under Section 21(3) of the Act of 2001. It is submitted that the dismissal of the application for cross-examination of the landlord Moolchand Vishva on his affidavit in evidence filed before the Rent Tribunal tantamounts to a denial of principles of natural justice compliance wherewith is mandated under Section 21(3) of the Act of 2001. It is submitted that for the aforesaid reason, the impugned orders passed by the Rent Tribunal on 26.3.2007 and by the Rent Appellate Tribunal on 21.7.2010 are vitiated and liable to be quashed and set aside. 3. Mr. V.L. Mathur, counsel appearing for the respondent-landlord (hereinafter `the landlord') would submit that the Hon'ble Division Bench of this Court in the case of Mahmud Khan vs. State of Rajasthan & Ors. (2006(1) RCJ 248) has held that until the applicant spelled out the points in his application on which he proposed to cross-examine a witness on his affidavit filed in evidence, the right to cross-examine could not be claimed. He submits that the Hon'ble Division Bench further has held that the cross-examination of a deponent on his affidavit in evidence is not a matter of right, but only a matter of discretion of the Tribunal in the context of language of Section 21(1) of the Act of 2001 which provides that cross-examination is to be allowed only where it appears to the Rent Tribunal that it is necessary in the interest of justice to call a witness for examination or cross-examination. Counsel submits that for the Tribunal to exercise its discretion, the factual foundation has to be supplied by the applicant in his application. The further submission is that in the present case no reason was set out in the application seeking to cross-examine the landlord Moolchand Vishva on his affidavit filed in evidence and consequently, both the Rent Tribunal and the Rent Appellate Tribunal have committed no error on this count. He submits that therefore the writ petition is without force and deserves to be dismissed. 4. Heard, Perused the petition as also the impugned orders and considered the submissions made. 5. The case of Mahmud Khan (supra) on which reliance has been placed by the counsel for the respondent-landlord has been considered by the Hon'ble Division Bench of this Court in the case of Ramswaroop (supra). 4. Heard, Perused the petition as also the impugned orders and considered the submissions made. 5. The case of Mahmud Khan (supra) on which reliance has been placed by the counsel for the respondent-landlord has been considered by the Hon'ble Division Bench of this Court in the case of Ramswaroop (supra). The Hon'ble Division Bench in the case of Ramswaroop (Supra) has held that the observations in the case of Mahmud (supra), more particularly in para 6 thereof, on which reliance has been placed upon by the counsel for the respondent-landlord, were confined to the fact situation obtaining in the aforesaid case. In fact, the Hon'ble Division Bench in Ramswaroop's case (supra) has held that the obtaining law to be applied generally was the one deducible from the judgment of the Hon'ble Division Bench of this Court in the case of Assandas (supra). It was also emphasised by the Hon'ble Division Bench in Ramswaroop's case (supra) that the law laid down was that "where determination of a question of fact depends on oral testimony, the cross-examination of deponent has to be permitted when demanded." 6. In view of the aforesaid obtaining position and Section 21(1) of the Act of 2001 having been interpreted by the Hon'ble Division Bench of this Court holding that where a question of fact depends on oral testimony, cross-examination of deponent has to be permitted when demanded, I am of the considered view that there is no option for this Court except to follow the dictum of the Hon'ble Division Bench of this Court and allow the present petition in view of the fact that an application for cross-examination of the respondent-landlord, Moolchand Vishva was indeed moved by the tenants. The application was disallowed and cross-examination not permitted. It is not in dispute that the issue before the Rent Tribunal as also before the Rent Appellate Tribunal was with regard to the bona fide necessity, which issue was quite obviously was an issue determinable only on oral evidence to be evaluated by the Rent Tribunal. 7. In this view of the matter, the writ petition deserves to be allowed and the order dt.26.3.2007, passed by the Rent Tribunal as also the order 21.7.2010, passed by the Rent Appellate Tribunal are quashed and set aside. The matter is remanded to the Rent Tribunal, Ajmer for allowing cross-examination of the respondent-landlord, Moolchand Vishva by the tenants. 7. In this view of the matter, the writ petition deserves to be allowed and the order dt.26.3.2007, passed by the Rent Tribunal as also the order 21.7.2010, passed by the Rent Appellate Tribunal are quashed and set aside. The matter is remanded to the Rent Tribunal, Ajmer for allowing cross-examination of the respondent-landlord, Moolchand Vishva by the tenants. It is however directed that since the matter pertains to an eviction petition filed in 2005, the Rent Tribunal should decide the matter before it following the remand by this Court within a period of three months from the receipt of a certified copy of this order. It is further made clear that the matter should not be adjourned except on a proper application filed setting out reasons and a reasoned order being passed thereon. It is further directed that in the event, an appeal arises from the order of the Rent Tribunal, Ajmer, the same shall be disposed of within a period of six months of its filing by the Appellate Rent Tribunal. 8. The writ petition stands allowed accordingly. Stay application stands disposed of in view of the writ petition being disposed.