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2023 DIGILAW 1372 (MAD)

Jata Shankar Mishra v. Champa Devi

2023-03-27

T.V.THAMILSELVI

body2023
JUDGMENT (Prayer in C.R.P. No. 662 of 2023: Civil Revision Petition filed under Art. 227 of Constitution of India, praying to set aside the order passed in M.P. SR.No.4002 of 2023 in RLTOP No.784 of 2021 dated 15.02.2023 on the file of learned XI Small Causes Court, Chennai. In C.R.P. No. 664 of 2023: Civil Revision Petition filed under Art. 227 of Constitution of India, praying to set aside the order passed in M.P. SR.No.4003 of 2023 in RLTOP No.784 of 2021 dated 15.02.2023 on the file of learned XI Small Causes Court, Chennai.) Common Order: 1. Challenging the impugned docket orders dated 15.02.2023 passed in M.P.SR.Nos.4002 and 4003 of 2023 in RLTOP No. 784 of 2021, on the file of learned XI Small Causes Court, Chennai respectively, which were filed by the Revision Petitioner/tenant herein for the purpose to call the witness for examination and to take evidence. He filed those applications before the Rent Controller and the same were rejected by the Rent Controller stating that the procedure of summary enquiry adopted by the court in consonance with the provisions of the Act and that there is no necessity to call the witness for examination. Challenging the said orders, the present Civil Revision Petitions have been filed. 2. The learned counsel for the Revision Petitioner argues that under the name of summary enquiry, the trial court is ignoring the natural principles of justice by not allowing the tenant to take oral evidence by way of cross-examining the respondent and also to give evidence on his side by way of chief and cross-examination. 2. The learned counsel for the Revision Petitioner argues that under the name of summary enquiry, the trial court is ignoring the natural principles of justice by not allowing the tenant to take oral evidence by way of cross-examining the respondent and also to give evidence on his side by way of chief and cross-examination. If the Rent Controller proceeds with the proceedings without giving opportunity to examine the witness, it is a clear violation of natural justice and also acting against the preposition laid down by the Apex Court in various cases i.e. in a case reported (2016) 15 SCC 785, clearly held that, “According to us, not allowing the assessee to cross-examine the witnesses by the adjudicating authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw, which makes the order nullity in as much as it amounted to violation of principles of natural justice because of which the assessee was adversely affected” and further the natural justice was defined as, the natural justice includes evidence of both the parties including the cross examination of the parties, but this was over looked in this case, which is against law. 3. The learned counsel would further submit that the Apex Court in a case reported in (2016) 12 SCC 204 , clearly held that, “compliance with the principles of natural justice is not mere formality, more so, when statutory provisions specifically provide that disciplinary proceedings shall be conducted with due observations of principles of natural justice – U.P. Cooperative Societies Employees Service.” 4. The learned counsel for respondent/landlord would submit that originally, she entered into agreement with the tenant in the year of 1989 and only 11 months period was granted to run a chat shop, but from the date of agreement, he is a defaulter in payment of rent. He would submit that the arrears of rent would come around Rs.19 lakhs and the petitioner/landlord''s husband died in the year of 2013. All these years, the tenant refused to vacate the premises and she wanted to put up an additional room for her family. Moreover, the lease agreement expires on 01.06.1990 and he is in unauthorised occupation of the premises all these years and he failed to enter into a new agreement for tenancy also. Further, he is committing default in payment of rent. Moreover, the lease agreement expires on 01.06.1990 and he is in unauthorised occupation of the premises all these years and he failed to enter into a new agreement for tenancy also. Further, he is committing default in payment of rent. Hence, she filed a petition in RLTOP No.784 of 2021 under Section 21(2)(a), 21(2)(b) and 21(2)(g) of Tamil Nadu Regulation of Rights and Responsibilities of Landlords and Tenants Act, 2017, as amended by Act XXXIX of 2018 and the same was posted for arguments by the learned Rent Controller as the summary proceedings is contemplated under the new Act. 5. By way of reply, the learned counsel for revision petitioner has very much relied on Sec.34(1)(a) of Tamil Nadu Regulation of Rights and Responsibilities of Landlords and Tenants Act, 2017 (hereinafter called as “New Act”) and argues that the tenant is empowered to call the witness by issuing summons and if any application is filed by him, the learned Rent Controller ought to have taken on file and ought to have issued summons by following the procedures as contemplated under the New Act. 6. But, on perusal of the said provision, it would clearly reveals that even though the proviso was given to call the witness, the party concerned is not entitled to call a witness, since it contemplates only in the summary proceedings. Further, it is very clear that Sec.36(2) of the New Act contemplates that if the learned Rent Controller thinks it necessary, the witness can be called for examination. Furthermore, at an earlier occasion, challenging the docket order passed by the Rent Controller for the same property, a Civil Revision Petition in C.R.P.No. 4332 of 2022 has been filed, in which this Court vide order dated 03.01.2023 has held in paras 23 to 25 as follows :- “23. Under those circumstances, neither the tenant nor the landlord can insist the Rent Court and the Rent Tribunal to examine the witnesses or cross-examine the witnesses. This exactly is the reason why the power of discretion is conferred on the Rent Court and the Rent Tribunal to take a decision whether it is necessary in the interest of justice to call the witness for examination or for cross-examination. 24. This exactly is the reason why the power of discretion is conferred on the Rent Court and the Rent Tribunal to take a decision whether it is necessary in the interest of justice to call the witness for examination or for cross-examination. 24. When the tenant or the landlord is unable to establish that there is a written agreement of tenancy between them and if the Rent Court finds that there is no such document has been filed, then there is no necessity to call a witness for examination or for cross-examination. In such circumstances, the Rent Court and the Rent Tribunal are empowered to decide the issues with reference to the grounds raised under Sec.21(2)(a) of the Act. 25. Section 36(5) of the Act, denotes that the Rent Court shall not ordinarily allow more than three adjournments at the request of a party through out the proceedings and in case it decides to do so, it shall record the reasons for the same in writing and order the party requesting adjournment to pay the reasonable cost.” Thus, this court has clearly held that the tenant is not entitled to call the witness and only to prolong the proceedings, he filed that application, which is not maintainable. However, challenging the said findings in the earlier C.R.P. proceedings, he preferred an appeal before the Apex Court, wherein liberty was given to the tenant to file fresh application, and now he is standing before this court. The contention of the Revision Petitioner is that he want to summon the witness, more particularly, to summon the landlord. As discussed above, new Act does not permit the party concerned to call a witness, since it contemplates only in the summary proceedings. However, as submitted by the landlord, nearly about 23 years, he committed default in payment of rent and there is no agreement as per the new Act. Hence, the order passed by the trial court is maintainable, which needs no interference. Accordingly, these Civil Revision Petitions are dismissed as no merits. No costs. Consequently, connected Civil Miscellaneous Petitions are closed.