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2023 DIGILAW 2097 (RAJ)

Gulam Nabi v. Abdul Wahid

2023-11-08

ARUN MONGA

body2023
ORDER : Mr. Arun Monga, J. - Petition herein is directed against an order dated 18.07.2023 passed by learned Rent Tribunal, Bhilwara, whereby an application filed by the petitioners seeking permission to tender affidavit as examination in chief of defendants' witnesses, under Section 9 of the Rent Control Act, 2001, was dismissed. 2. Succinct facts first, as pleaded in the petition. 2.1 An eviction petition was filed by respondent stating, inter alia, that shop in question was rented at the monthly rent of Rs. 4,500/- by the respondent to the father of the petitioners. Respondent alleges that the petitioners have not paid the monthly rent of the shop in question since 01.01.2013, despite the respondent sharing his bank account details to the petitioners. 2.2 Furthermore, owing to the expansion of his family and in order to establish a business for his sons, landlord is in bonafide need of the shop in question. It is further stated that the petitioners are using the shop for gas welding work, which is causing a nuisance in the area. 2.3 A specific issue qua rate of rent was framed by the learned trial Court. Burden of proof was cast upon the petitioners to prove that the monthly rent of the shop in question is Rs. 45/- and not Rs. 4,500/- as claimed by the respondent. Later, petitioners moved an application dated 24.11.2022 under Order 8, Rule 1 (a) (3) of the Code of Civil Procedure 1908 read with Section 15 of the Rajasthan Rent Control Act, 2001. In support, they placed on record eight documents as proof of rent given by the neighboring shop owners in the form of rent agreements and rent receipts. 2.4 The learned Rent Tribunal allowed the aforesaid application, observing that the documents placed on record are of vital importance for the adjudication of the case. 2.5 Petitioners filed another application dated 19.05.2023 seeking permission from the learned Rent Tribunal to bring on record affidavits of those shop owners whose documents are tendered in evidence, so as to prove those documents. However, the said application preferred by the petitioners was rejected vide impugned order dated 18.07.2023, observing that the same has been preferred to cause unnecessary delay. 3. However, the said application preferred by the petitioners was rejected vide impugned order dated 18.07.2023, observing that the same has been preferred to cause unnecessary delay. 3. Learned counsel for the petitioners submits that the learned trial Court has failed to consider that merely exhibiting a document and making it a part of the judicial record cannot ipso facto prove the veracity of the same. It is a settled position of law that the document can only be proved if its author or the person competent to prove the same enters into the witness box after tendering his affidavit in chief and offers to get himself cross-examined. He further submits that there has been a stark contest in the pleadings of the parties in as much as the respondent in his eviction petition states that the rent of the shop in question is Rs. 4,500/-, whereas the petitioners in their written statement have specifically denied it stating that the rent was only Rs. 45/- per month. Once the other application under Order 8, Rule 1 (a)(3) CPC was allowed for the petitioners to place on record the documents as proof of rent given by the neighboring shop owners in the form of rent agreements and rent receipts, then denying the opportunity to tender affidavits of examination in chief of concerned persons followed by their cross-examination by the opposite party would lead to a travesty of justice, and therefore, the impugned order deserves to be quashed and set aside. 4. Per contra, learned counsel for the respondent vehemently denies the submissions raised by the learned counsel for the petitioners and prays for the dismissal of the writ petition. 5. Having heard the rival contentions, what emerges thus is that the learned Trial Court has framed a specific issue qua the quantum of the monthly rent being paid by the petitioner-tenant. The onus of proving the same has been put on the petitioners, who claim that it was a mere Rs. 45/- per month, whereas in the case set up by the landlord, it is Rs. 4500/- per month. 6. It was in this background that the petitioners moved an application seeking to place certain additional documents on record in support of the claim that the rent is Rs. 45/- per month, which was allowed. 7. It is only concerning these documents that the petitioner-tenants propose to examine two more witnesses. 4500/- per month. 6. It was in this background that the petitioners moved an application seeking to place certain additional documents on record in support of the claim that the rent is Rs. 45/- per month, which was allowed. 7. It is only concerning these documents that the petitioner-tenants propose to examine two more witnesses. While, on the one hand, the learned Trial Court allowed the said documents to be taken on record, on the other hand, the petitioner was denied the opportunity to examine the concerned witnesses for proving the same in accordance with law. 8. To that extent, I find that the impugned order amounts to approbating and reprobating at the same time. There will be no useful purpose served in allowing the petitioner, on one hand, to place the documents on record and, on the other hand, denying him the opportunity to adduce evidence in proof thereof and to examine the proposed witnesses. Unless the petitioners are allowed to prove the documents, their exhibition per se would be meaningless. The only serious objection that seems to be raised by the landlord is that the petitioner is indulging in dilatory tactics, which will unnecessarily delay the court proceedings. 9. Be that as it may, this apprehension of the landlord-respondent can be plugged if the petitioner is not granted more than one effective opportunity to bring both the witnesses and examine them in accordance with law on the same date, of course, with the right of the landlord to cross-examine the said witnesses. 10. Accordingly, the petition is allowed subject to payment of Rs. 5,000/-. 11. The learned Trial Court shall grant one effective opportunity to the petitioner to adduce the evidence in proof of the documents as aforesaid. Impugned order is accordingly set aside. 12. It is, however, made clear that learned trial Court on its own shall be at liberty to grant further opportunity in case exigencies of workload so warrant.