Rajasthan High Court - Jaipur
Ved Prakash Sharma vs Rent Tribunal Jaipur &Anr on 8 February, 2010
Author: K.S. Rathore
Bench: K.S. Rathore
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
JUDGMENT
D.B. SPECIAL APPEAL(W) NO. 97/2010
IN
S.B. CIVIL WRIT PETITION NO. 11961/2009
VED PRAKASH SHARMA Vs. RENT TRIBUNAL, JAIPUR & ANR.
Date: 08.02.2010.
HON'BLE MR. JUSTICE K.S. RATHORE
HON'BLE MR. JUSTICE MAHESH BHAGWATI
Mr. Manoj Bhardwaj, Advocate for the appellant.
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The present special appeal is preferred by the appellant challenging the order of the learned Single Judge dated 18.01.2010 passed in S.B. Civil Writ Petition No. 11961/2009, whereby the writ petition has been dismissed which was filed against the order dated 21.08.2009 passed by the Rent Control Tribunal, Jaipur, by which the application submitted by the appellant/petitioner for taking on record the affidavit of one of the witness namely; Vasdev Samtyani was rejected.
The said writ petition came up before the learned Single Judge on the application submitted by the respondent under Article 226(3) of the Constitution of India for vacation of the ex parte interim order dated 18.09.2009 and at the request of both the parties since the submissions on the application as well as the writ petition were identical, the writ petition itself was finally heard.
The main challenge to the order impugned dated 18.01.2010 is on the ground that the learned Single Judge has not taken into consideration the fact that the affidavit of Vasudev Samtyani was taken on record by the trial Court itself vide order dated 20.08.2009 and thereafter by overwriting the affidavit was discarded, meaning thereby once the affidavit was taken on record there was no occasion available with the trial Court to discard the affidavit, more so, by overwriting on the order sheets.
Further, the learned Single Judge dismissed the writ petition on the ground that since on earlier occasion when the writ petition bearing No. 1086/2009 was decided, the parties given consent that they will only cross examine the witness whose affidavit are on record. The learned Single Judge failed to consider that the real issue before the Court below regarding material alteration and default in payment of rent is whether the petitioner is in arrears of rent whereas defence of the petitioner was that the petitioner was not in arrears of rent as he spent Rs. 1,65,000/- with the consent of erstwhile owner Ajeet Kumar. The money which was spent on construction was agreed to be adjusted as future rent and, therefore, the petitioner was not in arrears of rent.
We have heard learned counsel for the appellant and carefully gone through the order impugned dated 18.01.2010 passed by the learned Single Judge.
The learned Single Judge while dismissing the writ petition has considered each and every aspect of the matter and after examining the material available on record, rightly observed as under:-
The Act does not provide for the cross examination of the witness of the parties as of right. It is left to the discriction of the Tribunal under Section 21 and the Tribunal may consider to allow in the interest of justice to call any witness for examination or cross objection. This being a mark departure of procedure to be followed by the Tribunal in these proceedings the Tribunals can not in routine allow the prayer for cross examination of the witnesses. In the present case since it was clearly stated that the parties wish to rely on the affidavits of the witnesses whose affidavits have been filed on record, in the earlier writ petition before this court the question, in the facts and circumstances of this case of allowing the petitioner to file the fresh affidavit of a new witness Vasdev Samtyani did not arise and it was rightly refused by recalling the earlier order by the learned Tribunal.
In the facts and circumstances this writ petition deserves to be dismissed.
The writ petition is accordingly dismissed. The application submitted by the respondent for vacation of the interim order is accordingly allowed. The interim order dated 18.09.2009 stands vacated.
Upon perusal of the observations made by the learned Single Judge, we find no illegality or error apparent on the face of the record. The learned Single Judge was right in holding that the Act does not provide for the cross examination of the witness of the parties as of right. The order impugned dated 18.01.2010 passed by the learned Single Judge suffers from no illegality or error which requires any interference by this Court.
Consequently, the special appeal fails being devoid of merit and the same is hereby dismissed. There shall be no order as to costs.
The stay application also stands dismissed.
(MAHESH BHAGWATI),J. (K.S. RATHORE),J. /KKC