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2016 DIGILAW 42 (RAJ)

Renu Vaidi v. Harsha Jethwani

2016-01-07

ARUN BHANSALI

body2016
ORDER : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against the order dated 01.12.2015 passed by the Appellate Rent Tribunal, whereby the prayer on an application filed by the petitioner under Section 19(9) and 21 of the Rent Control Act, 2001 ('the Act') before the disposal of the appeal has been rejected. 2. The respondents filed proceedings for eviction of the petitioner from suit premises before the Rent Tribunal, Jodhpur ('the Rent Tribunal'). Along with the petition filed before the Rent Tribunal, the petitioner relied on the affidavits of the applicant Smt. Harsha Jethwani and one Shyamdas Jethwani. However, when permission to cross-examine the deponents was granted by the Rent Tribunal, the respondent produced Smt. Harsha Jethwani only and closed her evidence. The Rent Tribunal by its judgment dated 30.09.2014, allowed the application for eviction. 3. Feeling aggrieved, the petitioner filed appeal before the Appellate Rent Tribunal, Jodhpur ('the Appellate Tribunal'). 4. During pendency of the appeal, the petitioner filed the present application, inter alia, seeking the following directions:- ^^vr% izkFkZuki= is'k dj fuosnu gS fd izkFkZuk i= vihykUV & fdjk;snkj Lohdkj djrs gq, vihykUV }kjk izLrqr bl vihy dks yfEcr j[krs gq, fdjk;k vf/kdj.k tks/kiqj dh i=koyh ewy ;kfpdk la[;k 559@2012 dh i=koyh bl funsZ'k ds lkFk fdjk;k vf/kdj.k tks/kiqj esa iqu% Hksth tkos fd Hkw&Lokeh&izkFkhZ vius lk{kh Jh ';kenkl tsBokuh dks izfrijh{k.k gsrq fdjk;k vf/kdj.k tks/kiqj esa mifLFkr j[ks vkSj ftlls fdjk;snkj& vihykUV }kjk izfrijh{k.k fd;s tkus ds i'pkr~ ewy ;kfpdk iqu% ekuuh; vihy vf/kdj.k esa Hksth tkos] vU; dksbZ mfpr vkns'k tks vihykUV & fdjk;snkj ds gd esa gks ikfjr fd;k tkosA** 5. The application with the above prayer was filed with the submissions that during the cross-examination, the deponent Harsha Jethwani deposed that she was having little knowledge about the case and her father-in-law i.e. Shyamdas Jethwani was having more information and, therefore, for proper adjudication of the dispute, the said Shyamdas Jethwani be directed to remain present for cross-examination by the petitioner before the Rent Tribunal. 6. Though, no reply to the application was filed, the same was opposed by the respondent-landlord. The application was filed on 03.11.2015 when the Appellate Tribunal ordered that the said application shall be disposed of along with the appeal and fixed the matter for hearing of the appeal on 21.11.2015. 6. Though, no reply to the application was filed, the same was opposed by the respondent-landlord. The application was filed on 03.11.2015 when the Appellate Tribunal ordered that the said application shall be disposed of along with the appeal and fixed the matter for hearing of the appeal on 21.11.2015. The Appellate Tribunal also noticed that the counsel for the petitioner wanted disposal of the application separately and has objection regarding disposal of the application along with the appeal. 7. On 01.12.2015, it was submitted by learned counsel for the petitioner before the Appellate Tribunal that he had recorded his objection qua the order dated 03.11.2015 regarding disposal of the application and the application be heard before decision of the appeal. The prayer was opposed by the respondents. The Appellate Tribunal by the impugned order observed that the order had already been passed and by passing order on the application along with the appeal, the petitioner's rights would not be adversely affected; normally the applications filed during the pendency of the appeal are disposed of along with the appeal and, consequently, rejected the prayer. 8. Learned counsel for the petitioner submits that the Appellate Tribunal was not justified in dismissing the prayer made by the petitioner for disposal of the application before finally hearing the appeal and, therefore, the order impugned deserves to be quashed and set aside. 9. With reference to provisions of Section 19(9) and 21 of the Act, it was submitted that the Appellate Tribunal can call a witness for examination or cross-examination and such witness can be produced and it can also order attendance for examination or cross-examination of such a witness. Further Section 19(9) also allows filing of additional affidavits or documents at any stage of proceedings in the appeal, in case the Appellate Tribunal considers it necessary in the interest of arriving at a just and proper decision and, therefore, the observations and the directions made by the Appellate Tribunal that the application filed by the petitioner shall be heard along with the appeal cannot be sustained. 10. With reference to the application filed before the Appellate Tribunal, it was submitted that the prayer made on behalf of the petitioner was justified and genuine and the Appellate Tribunal was not justified in postponing its decision along with the appeal. 10. With reference to the application filed before the Appellate Tribunal, it was submitted that the prayer made on behalf of the petitioner was justified and genuine and the Appellate Tribunal was not justified in postponing its decision along with the appeal. It was prayed that the order impugned be set aside and the Appellate Tribunal be directed to decide the application on merits. 11. Learned counsel for the respondents submitted that the conduct of the petitioner before the Appellate Tribunal has not been proper, inasmuch as, various tactics are being adopted to somehow delay the disposal of the appeal and, therefore, the Appellate Tribunal was justified in directing disposal of the application along with the appeal. It was further submitted that the respondents though had filed two affidavits along with the petition for eviction, once the evidence of the first witness i.e. Smt. Harsha Jethwani was over, the respondents did not found any further requirement of leading evidence and confined her evidence to that of Smt. Harsha Jethwani. The Appellate Tribunal is required to decide the appeal based on the material available before it and once Shyamdas Jethwani has not appeared in the witness-box for cross-examination and his affidavit has not been relied on by the Rent Tribunal, the petitioner cannot insist for his cross-examination and, therefore, the application even on merits deserves to be dismissed. 12. Learned counsel for the respondents relied on judgment in the case of Ravinder Lamba v. Rent Tribunal, Jodhpur & Ors., 2008 (1) DNJ (Raj.) 4321. 13. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 14. A bare perusal of the prayer made by the petitioner before the Appellate Tribunal, as quoted hereinbefore would reveal that the petitioner had sought that her application be allowed and while keeping the appeal pending the matter be remanded back to the Rent Tribunal with a direction to produce witness Shyamdas Jethwani for cross-examination and after cross-examination, the record be sent back to the Appellate Tribunal. 15. The prayer made by the petitioner in the application essentially pertained to seeking interim remand by the Appellate Tribunal of the matter for the production and cross-examination of Shyamdas Jethwani. 15. The prayer made by the petitioner in the application essentially pertained to seeking interim remand by the Appellate Tribunal of the matter for the production and cross-examination of Shyamdas Jethwani. The provision relating to remand by the Appellate Tribunal under Section 19(11) of the Act, inter alia, reads as under :- "19(11)(a) While deciding the appeal, the Appellate Rent Tribunal may after recording reasons therefore:- (i) confirm, vary, set aside, reverse or modify the order passed by a Rent Tribunal; or (ii) if necessary in the interest of justice, remand the case to the Rent Tribunal along with such direction as it may deem fit." 16. A bare look at the above provisions would reveal that the said provision is enabling provision, wherein if while deciding the appeal, the Appellate Tribunal, for reasons to be recorded, comes to the conclusion that it was necessary in the interest of justice, it can exercise the power of remand. The provision cannot be invoked by the parties seeking a piecemeal decision by the Appellate Tribunal during the pendency of the appeal i.e. it is only based on the grounds raised in the appeal and submissions made before the Appellate Tribunal, if the Appellate Tribunal while deciding the appeal, on the material available before it comes to the conclusion that the circumstance as indicated in Section 11(a)(ii), are available/exists it can exercise the power. Any of the parties during the course of pendency of the appeal by filing application cannot seek a remand based on the availability of circumstances as indicated under Section 11(a)(ii), the appellant is required to make out a case in the memo of appeal/during course of arguments for invoking powers under the provisions for remand of the matter. 17. Any of the parties during the course of pendency of the appeal by filing application cannot seek a remand based on the availability of circumstances as indicated under Section 11(a)(ii), the appellant is required to make out a case in the memo of appeal/during course of arguments for invoking powers under the provisions for remand of the matter. 17. Though, it is true that the Appellate Tribunal has powers under Section 21(1) of the Act to call a witness for examination or cross-examination and/or order attendance for examination or cross-examination of any witness, in view of the fact that the affidavit of said witness was already filed before the Rent Tribunal and the respondent herein chose not to produce the said witness, implication of his non-production and the requirement for his cross-examination, if at all would definitely be a issue to be dealt with by the Appellate Tribunal at the time of final decision of the appeal and said issue could not have been decided in a piecemeal manner as sought by the petitioner by way of filing the present application. 18. In view thereof, the order passed by the Appellate Tribunal cannot be faulted on any count. 19. There is no substance in the writ petition, the same is, therefore, dismissed. 20. No order as to costs.