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Rajasthan High Court · body

2015 DIGILAW 2069 (RAJ)

Ayub v. Hansraj

2015-12-14

SANGEET LODHA

body2015
JUDGMENT : 1. This petition is directed against order dated 15.7.15 passed by the Rent Tribunal, Jodhpur Metropolitan in Rent Case No.150/14, whereby the application preferred by the petitioners to permit them to cross examine the respondent-landlord, who has filed his own affidavit before the Rent Tribunal, has been rejected. 2. The respondent preferred a petition under Section 9 of Rent Control Act, 2001 ( for short "the Act of 2001") seeking eviction of the petitioners from a commercial premises on the ground of default in payment of rent. The petition is being contested by the petitioners by filing a reply thereto. 3. During the pendency of the petition, the petitioners sought permission to cross examine the respondent. The application has been rejected by the Rent Tribunal observing that there is no dispute between the parties regarding landlord and tenant relationship and regarding the default in payment of rent, the parties have produced documentary evidence and therefore, it is not necessary to permit the petitioners to cross examine the respondent-landlord. Hence, this petition. 4. Learned counsel appearing for the petitioners contended that the Rent Tribunal has committed grave error in rejecting the application preferred by the petitioners seeking leave to cross examine the respondent-landlord. Learned counsel submitted that the facts set out by the respondent-landlord regarding the default in payment of rent are seriously disputed by the petitioners and therefore, the petitioners deserve to be permitted to cross examine him. Learned counsel submitted that the petitioners have taken the specific plea that the notice alleged to have been sent by the respondent-landlord in compliance of first and second proviso to Section 9(a) was never served upon them and the acknowledgment receipts produced do not bear their signature. Learned counsel submitted that the petitioners have paid the due rent to the respondent-landlord regularly, however, no receipts were issued to them. Learned counsel submitted that on the facts and in the circumstances of the case, the denial of the opportunity to the petitioners to cross examine the respondent-landlord is ex facie violative of principles of natural justice. 5. Learned counsel submitted that the petitioners have paid the due rent to the respondent-landlord regularly, however, no receipts were issued to them. Learned counsel submitted that on the facts and in the circumstances of the case, the denial of the opportunity to the petitioners to cross examine the respondent-landlord is ex facie violative of principles of natural justice. 5. Learned counsel appearing for the respondent-landlord submitted that the eviction is sought only on the ground of default and it has come on record that the petitioners have not paid the rent despite notice being served and thus, the matter can be decided on the basis of affidavits of the parties and the documentary evidence on record. Learned counsel submitted that in the proceedings before the Rent Tribunal, the parties cannot claim an opportunity to cross examine the witnesses as a matter of right and therefore, on the facts and in the circumstances of the case, the discretion exercised by the Rent Tribunal in refusing to permit the petitioners to cross examine the respondent-landlord, cannot be faulted with. 6. I have considered the rival submissions and perused the material on record. 7. In the matter of Aasandas v. State of Rajasthan, 2005 (1) DNJ (Raj.) 431 , while interpreting the provisions of Section 21 of the Act of 2001, a Bench of this court has categorically held that discretion vested u/s 21 with the Presiding Officer of the Rent Tribunal is not a discretion merely to deny the just prayer for permitting a party to cross examine the witnesses. The Bench observed that the Rent Tribunal cannot take it that; ordinarily the prayer for cross examination has to be refused and only in rare cases, cross examination is to be permitted, rather, the principle is other way round. The Bench further observed that where a decision depends on oral testimony and affidavits forms oath against oath, and facts deposed in affidavits are not verifiable from other material on record, ordinarily, in such case, cross examinations ought to be permitted in the interest of giving fair trial to litigants. 8. In the instant case, the respondent-landlord is seeking eviction of the petitioners from the premises in question on the ground of default in payment of rent. 8. In the instant case, the respondent-landlord is seeking eviction of the petitioners from the premises in question on the ground of default in payment of rent. A perusal of the pleadings of the parties reveals that the averments made by the respondent-landlord regarding default in payment of rent, the service of the notice etc. have been seriously disputed by the petitioners. Obviously, the finding on the questions involved shall depend on the statement on oath of either parties. Thus, taking into consideration the facts and circumstances of the case, this court is of the considered opinion that it will be unjust to deny the petitioners to cross examine the respondent-landlord, who has filed his own affidavit in support of the case. 9. In the result, the petition is allowed. The order impugned dated 15.7.15 passed by the Rent Tribunal, Jodhpur Metropolitan is set aside. The Rent Tribunal is directed permit the petitioners to cross examine the respondent-landlord. Needless to say that the respondent-landlord shall also be permitted to cross examine the petitioners and their witnesses whose affidavits have been filed before the Rent Tribunal. No order as to costs.