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2016 DIGILAW 2452 (ALL)

Bitufelt Pvt. Ltd. v. Pradeep Kumar Gupta

2016-07-14

PANKAJ MITHAL

body2016
JUDGMENT Pankaj Mithal, J. – Heard Sri. Udai Chandani, learned counsel for the petitioner and Sri. P.K. Jain, Senior Advocate assisted by Abu Bakht, learned counsel appearing for the respondent. 2. The petitioner is a tenant and the respondent is the owner of the premises in dispute. The respondent applied under Section 21(1)(a) of the U.P. Act No.13 of 1972 for release of the premises. The application was allowed by the Prescribed Authority. The petitioner preferred an appeal. In appeal interlocutory orders have been passed on 31.3.2016 and 30.5.2016 which have been impugned in this petition. 3. The submission of Sri. Chandani, learned counsel for the petitioner is that the respondent during the pendency of appeal filed volumeness documents on affidavit and the same was directed to be taken on record. He again filed an application under Order 41, Rule 27 C.P.C. for bringing on record certain documents and the same has been allowed but at the same time his application to cross examine the respondent who had filed the affidavit so as the bring the documents on record has been rejected. 4. His further submission is that as the affidavit filed by the respondent was in the nature of additional evidence he is entitle to cross-examine the deponent of the affidavit. 5. I have gone through the impugned orders as well as the various affidavits and applications filed by the respondent. The respondent has filed a counter affidavit annexing certain documents in response to the affidavit filed by the petitioner. The petitioner moved application that he may be permitted to cross examine the respondent/deponent of the aforesaid counter affidavit. The said application has been rejected by the order dated 31.3.2016. Since the respondent had filed counter affidavit and not any affidavit as part of the statement in chief, the petitioner has no right to cross examine the respondent/deponent. At best in reply to the said counter affidavit he could have filed his rejoinder affidavit to deny the averments made therein, if necessary. This was even permitted by the order dated 31.3.2016. 6. This apart, evidence in the rent control matters is permitted to be recorded on the basis of affidavits and it is not necessary to get the witnesses of the parties to come in the witness box and examined. It is only in rarest of the rare cases where the court considers necessary it may permit cross-examination. 7. 6. This apart, evidence in the rent control matters is permitted to be recorded on the basis of affidavits and it is not necessary to get the witnesses of the parties to come in the witness box and examined. It is only in rarest of the rare cases where the court considers necessary it may permit cross-examination. 7. In the instant case evidence has been filed on affidavit and the statement of the witnesses have not been recorded as part of evidence to permit cross-examination. The cross examination of deponent of the said counter affidavit in these circumstances is not necessary. No special case for his cross-examination has been made out. 8. In view of the above, there is no error or illegality in the aforesaid order. 9. Later respondent had filed an application under Order 41, Rule 27 C.P.C. so as to bring on record the notice dated 13.8.2015 and the copy of receipt of the notice on the ground that the aforesaid notice was given during the pendency of the appeal and since it was a subsequent event it was necessary for the purposes of complete adjudication of the dispute. 10. The appellate court below vide order dated 22.5.2016 has permitted the said notice to be taken on record allowing the application 101 Ga of the respondent and at the same time has permitted the petitioner to adduce its evidence in rebuttal of the same. 11. Since the aforesaid notice was a subsequent material and has been held to be relevant for adjudication of the appeal, no illegality has been committed in accepting the same on record. It would not even cause any prejudice to the petitioner as it has been permitted opportunity of rebuttal. 12. Moreover, it is only an interlocutory stage and the appeal is yet to be decided. The petitioner can take objection with regard to the admissibility of any evidence adduced during the course of the proceedings by raising an argument to the above effect at the time of final hearing of the appeal. 13. Accordingly, I do not consider it fit and proper to exercise either the discretionary jurisdiction or supervisory jurisdiction at this stage of the matter. 14. 13. Accordingly, I do not consider it fit and proper to exercise either the discretionary jurisdiction or supervisory jurisdiction at this stage of the matter. 14. At this stage it has been submitted by the counsel for the petitioner that the petitioner could not avail the opportunity of filing rejoinder affidavit in reply to the above counter affidavit and one more opportunity may be allowed. 15. The petitioner is permitted file rebuttal, if any, within two weeks from today and no further time shall be allowed to him for the purpose. 16. The writ petition is devoid of merit and is dismissed. Petition dismissed.