Rajasthan High Court - Jaipur
M/S Formica Traders vs Tripti Kumar Kothari on 4 August, 2017
Author: Alok Sharma
Bench: Alok Sharma
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
ORDER
S.B. Civil Writ Petition No.2800/2010
M/s Formica Traders, Film Colony, Kothari Bhawan Jaipur through Partner
Krishna Gopal Rathi, age 69 years S/o Late Shri Kasri Lal Ji.
...Non-applicant/Petitioner
Versus
Tripti Kumar Kothari S/o Shri Ram Chandra Ji Kothari R/o B-32 Jai Jawan
Colony I, Jawar Lal Nehru Marg Jaipur.
...Applicant-Non-Petitioner
Date of Order: August 04, 2017.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. Dinesh Kala, for the petitioner.
Mr. Amod Kasliwal, for the respondent.
BY THE COURT:
Heard counsel for the parties and perused the impugned judgment dated 1-2-2010, passed by the Rent Tribunal, Jaipur (hereinafter `the Tribunal') whereby the petitioner-tenant's (hereinafter `the tenant') application to cross examine the respondent-landlord (hereinafter `the landlord') on his affidavit in support of eviction petition on the ground of material alteration was rejected.
Counsel for the tenant submitted that the issue of material alteration is a disputed question of fact, which the Tribunal cannot 2 decide only on the basis of contesting affidavits in evidence: a situation of affidavit on oath versus another affidavit on oath. He relied upon the judgment in the case of Ramswaroop Vs. Charanjeet Singh, [2008(1) WLC (Raj.) 47] wherein the Division Bench held that though cross examination of a witness cannot be claimed as a matter of right, yet its importance to ascertain the truth of the matter cannot be oveempahsised and unless there are exceptional contra circumstances, for the ends of justice to be met, cross examination should ordinarily be allowed when sought. Mr. Dinesh Kala submitted that in this view of the matter as the impugned order does not state any good reason for denial of the right of cross examination of the landlord on his affidavit, despite and application therefor, it be set aside and cross examination of the landlord on his affidavit in evidence be permitted.
Mr. Amod Kasliwal, counsel for the landlord submitted that trials under the Rent Control Act, 2001 (hereinafter `the Act of 2001') are statutorily required to be summary. Hence the procedure prescribed therein for adjudication of landlord tenant dispute is by taking of evidence by way of affidavits. He submitted that the Apex Court in catena of cases has upheld the taking of evidence by way of affidavit and adjudication thereupon without the absolute right of cross examination. Mr. Amod Kasliwal further submitted that even in the judgment in the case of Ramswaroop Vs. Charanjeet Singh (supra), relied upon by counsel for the tenant, the court observed 3 that cross examination of opposite party cannot be claimed as a matter of right, but the party seeking to so do has to make out a case therefor by disclosing good reason in the application filed for the purpose. Mr. Amod Kasliwal submitted that the application filed by the tenant was perfunctory and did not disclose any reason at all as to why the cross examination of the landlord on his affidavit was necessary and on what aspect/s thereof. The application merely stated that as the averment in the eviction petition had been denied in the reply, the landlord be allowed to be cross examined by the tenant. Mr. Amod Kasliwal submitted that in the circumstances no cause obtained for the Rent Tribunal to deviate from procedure prescribed under the Act of 2001 to decide landlord tenant dispute on the basis of affidavits in evidence. He submitted that even if an application for cross examination bereft of any good ground--were to be permitted, it would entail the absolute right to cross examine which the Division Bench in the case of Ramswaroop Vs. Charanjeet singh (supra) itself held was not available in proceedings under the Act of 2001.
Heard. Considered.
In Ramswaroop Vs. Charanjeet Singh (supra) on which the counsel for the tenant laid emphasis, the Division Bench held that cross examination of an affiant in the course adjudication of landlord tenant dispute which is to be tried as a summary trial was 4 not a matter of right. Logically, the matter therefore necessarily lies in the discretion of the Rent Tribunal when an appropriate application is filed by an applicant seeking to cross examine the affiant. A mere demand for cross examination does not suffice. The applicant therefore has to set out good and relevant cause to be entitled to cross examine an affiant. A perusal of the application filed by the tenant indicates that it was very cryptic, claiming the right of cross examination only on the ground of the case set up by the landlord for the tenant's eviction on ground of material alteration having been denied in reply to eviction petition. No good cause or in fact any valid cause to allow the cross examination of the landlord was made out. Besides the Tribunal has rightly held that the burden to prove the facts/ ground in support of the eviction petition lay on the landlord. If he failed to discharge his burden, it would be to his consequence.
In the circumstances, I find no force in the petition. Consequently, the petition stands dismissed.
In the facts of the case, as the eviction petition relates to the year 2009, the Tribunal is directed to dispose it of within four months from the date of receipt of a certified copy of this order.
(Alok Sharma), J.
arn/ 5 All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.