Rajasthan High Court - Jodhpur
Narendra Kumar Taya vs Smt. Kaushalya on 31 August, 2021
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 11110/2021
Narendra Kumar Taya S/o Shri Mohan Lal Ji, Aged About 68
Years, Resident Of Owner Taya Sales Corporation, 5, Ashwini
Bazar, Udaipur. (Raj.)
----Petitioner
Versus
Smt. Kaushalya W/o Shri Yashwant Singh Choudhary, Resident
Of 57/32-33, New Ahinsapuri, Udaipur. (Raj.)
----Respondent
For Petitioner(s) : Mr. Narendra Thanvi
For Respondent(s) : Mr. B.L. Choudhary
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order Order reserved on : 25/08/2021 Date of pronouncement: 31/08/2021 The present writ petition has been filed by the petitioner against the order dated 03.08.2021 passed by learned Rent Tribunal, Udaipur whereby, the learned court declined the prayer made by the petitioner for recording the statement of witness NAW/5 on Commission.
Learned counsel for the petitioner submits that petitioner had filed an application under Section 21(3) of the Rent Control Act, 2001 read with Order 26 and Section 151 CPC with the pryaer that statement of petitioner's witness NAW/4 and NAW/5 were to be recorded on 27.07.2021. However, since witness NAW/5 Purushottam Kishnani suffered paralysis, he could not come to Court for recording his statement. Therefore, looking to the (Downloaded on 31/08/2021 at 08:50:18 PM) (2 of 4) [CW-11110/2021] medical condition of witness NAW/5, it was prayed that his statement may be ordered to be recorded on commission at his home. However, the learned Tribunal in a mechanical manner rejected the prayer made by the petitioner for recording the statement of NAW/5 on Commission. It is argued that the petitioner had produced all the relevant documents alongwith the application evidencing the medical condition which clearly show the inability of NAW/5 to appear in the Court. It is submitted that the witness NAW/5 is a material witness and his examination is very much essential for just decision of the case. Therefore, the impugned order dated 03.08.2021 passed by learned Rent Tribunal, Udaipur rejecting the prayer made by the petitioner for recording the statement of witness NAW/5 on Commission may be quashed and set aside and the statement of petitioner's witness NAW/5 may be ordered to be recorded on Commission at home and respondent be directed to cross-examine the said witness NAW/5 on Commission at home.
Per contra, learned counsel for the respondent supported the impugned order dated 03.08.2021 and submits that the petitioner's witness NAW/5 is avoiding his examination in Court and the application has been filed by the petitioner only to delay the proceedings. It is argued that the matter is pending for evidence of petitioner's witnesses for long time. The medical documents are old and it cannot be said that the said witness is not in a position to appear in Court for examination. It is argued that the petitioner has not produced any latest medical document either before the trial court nor before this Court. Counsel for the Respondent relied upon the Judgments of the Hon'ble Supreme Court in the case of 'Petland Turkey R.D. Works v.s Workers' Union (Downloaded on 31/08/2021 at 08:50:18 PM) (3 of 4) [CW-11110/2021] (AIR (1960) S.C 1006), judgment of the Calcutta high court in the case of Octovious Steel & CO. Ltd, v.s The Endogram Tea Co. Ltd. ( AIR (1980) (Cal.) 78), the judgment of the Jammu Kashmir high court in the case of Sri Ram v.s Ashwani Kumar and Others ( AIR 1978 J&K 78), the judgment of the Delhi High court in the case of Kishan Lal Gupta v.s M/s. Dujodwala Industries and others ( AIR 1977 (Delhi) 49), the judgment of the Andhra Pradesh High court in the Case of Jaya Shankar Mills (Barsi) Ltd. V.s Hazi Zakaria Hazi Ebrahim ( AIR 1962 ( A.P.) (435), the judgment of the Calcutta high court in the case of Pradip Kumar Goenka v.s Manju Bhartia ( AIR 2004 (cal.) 89), the judgment of the Rajasthan high court in the case of Nand Kishore v.s Gauri Lal (AIR 1951 (Raj.) 48).
I have heard learned counsel for the petitioner and respondent and gone through the material on record.
It is not in dispute that the petitioner's witness NAW/5 Purushottam Kishnani had suffered paralysis and is bedridden which is evident from the medical documents annexed by the petitioner alongwith application. Learned trial court has rejected the application on the ground that the petitioner has produced the medical documents which are eight months old and further looking to the Covid-19 situation, it will not be proper to send someone to record the statement of said witness. In the opinion of this Court, the medical document suggest that the witness NAW/5 has infact suffered a paralytic attack and he is bedridden. Since people suffering paralysis attack do take few months to recover and may need therapy for years, in the opinion of this Court, taking into consideration the entire facts and circumstances, in the interest of justice, it will be just and appropriate to direct the trial court to (Downloaded on 31/08/2021 at 08:50:18 PM) (4 of 4) [CW-11110/2021] record the statement of witness NAW/5 at home through Commissioner. So far as the situation of Covid-19 is concerned, the statement of witness may be recorded at home while maintaining distance and taking appropriate precautions in this regard.
Accordingly, the writ petition is allowed. The impugned order dated 03.08.2021 passed by learned Rent Tribunal, Udaipur to the extent of declining the prayer made by the petitioner for recording the statement of witness NAW/5 on Commission is hereby quashed and set aside. The trial court is directed to immediately appoint a Commissioner for recording the statement of witness NAW/5 Purushottam Kishnani at home on 14.09.2021 and respondent is directed to cross-examine the said witness.
(MANOJ KUMAR GARG),J 82-BJSH/-
(Downloaded on 31/08/2021 at 08:50:18 PM) Powered by TCPDF (www.tcpdf.org)