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2019 DIGILAW 1467 (RAJ)

Bhawana Kumari v. Rekha Verma

2019-05-13

SANJEEV PRAKASH SHARMA

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JUDGMENT 1. Instant writ petition has been preferred by the petitioner against the order dated 14/03/2019 whereby the learned Executing Court has refused to allow cross-examination in relation to the affidavits filed by the respective parties in the case before it under Section 47 CPC. 2. Learned counsel for the petitioner submits that the High Court vide its order dated 18/01/2019 in SB Civil Writ Petition No.1414/2019 had granted liberty to both the parties to adduce evidence by way of affidavits and documents. It is his submission that once the High Court directed for adducing evidence by way of affidavits and documents, the evidence could only be read after cross-examination is conducted. However, the learned Executing Court has limited the order passed by the High Court to the extent of only accepting the affidavits without allowing cross- examination. Learned counsel submits that the petitioner moved an application seeking permission to cross-examine in order to point out the veracity and correctness of the affidavit which has been wrongfully disallowed by the learned Executing Court by order impugned dated 14/03/2019. 3. Per-contra, learned counsel for the respondent-decree holder submits that the provisions of CPC would not apply to the Rent Tribunal and the Rent Tribunal has its own procedure which is to be laid down. Learned counsel relied on the judgment rendered by this Court in Mahmud Khan vs. State of Rajasthan & ors., (2005) 5 WLC 287 wherein similar view has been taken. 4. After hearing learned counsel for the parties, this Court finds that the High Court in the present proceedings in earlier round of litigation allowed the respective parties to adduce evidence by way of affidavit and documents in the execution proceedings. The said order has attained finality. The learned Executing Court has, however, understood the aforesaid to mean only to accept the affidavit of the respective parties. 5. In Mahmud Khan vs. State of Rajasthan & ors. (supra), the Division Bench of this Court has noticed as under:- "5. On a bare reading it would appear that the procedure laid own in the Code of Civil Procedure for trial of suit including examination of witnesses is not applicable. The Rent Tribunal may regulate its own procedure for trial of the eviction suits giving due regard to the principles of natural justice and the provisions of the Act and the rules made there under. The Rent Tribunal may regulate its own procedure for trial of the eviction suits giving due regard to the principles of natural justice and the provisions of the Act and the rules made there under. It is manifest that a party cannot claim opportunity of cross-examination of witnesses as matter of right. The Tribunal must be satisfied that "it is necessary in the interest of justice" to call a witness for examination or cross-examination, as the case may be. In Aasandas v. State of Rajasthan (supra), a similar view was expressed and it would be useful to quote the relevant observations as under:- "....the expression where it appears to it that it is necessary in the interest of justice to call a witness for examination or cross-examination gives out that only where it is felt necessary to call a witness for examination or cross- examination, such witness can be produced and that requirement of calling a witness in the witness box is not necessary ans since, in the present case, the applicant has not given the details on what aspects he wants to cross- examine the non-applicant it cannot be considered to be in the interest of justice to permit cross-examination." 6. Coming to the instant case, as observed by the Tribunal, the petitioner did not spell out the points on which he proposed to cross-examine the witnesses and which of them were related to the applicant- respondent. The prayer to our mind was vague and omnibus and the Tribunal did not commit it any error in rejecting such an application. As observed above, opportunity of cross-examination can not be claimed as a matter of right. The party is required to satisfy the Tribunal that it is necessary to summon witness in the interest of justice for cross-examination." 6. Coming to the facts of the present case, it is noticed that the aforesaid aspect would not apply as the same relates to the powers of the Rent Tribunal and is not in relation to the executing proceedings and the learned Executing Court is required to strictly follow the CPC in terms thereto and Section 47 CPC proceedings have to be thus in terms of the procedure laid down under CPC. If the High Court has already allowed the parties to adduce evidence by affidavits and documents, necessarily it would also include examination of witnesses with relation to the documents which may have been produced or even otherwise. 7. Accordingly, this Court finds that the order impugned dated 14/03/2019 is erroneous and learned Executing Court has committed jurisdictional error. 8. Consequently, the writ petition is allowed. The order impugned dated 14/03/2019 is quashed & set aside. The respective parties shall be free to cross-examine the witnesses. It is further directed that the execution proceedings shall be positively completed within a period of three months henceforth.