Rajasthan High Court - Jodhpur
Mustaq Ahmed & Ors vs Liyakat Ali & Anr on 14 May, 2010
Equivalent citations: AIR 2010 (NOC) 894 (RAJ.), 2010 AIHC (NOC) 995 (RAJ.)
Author: Prakash Tatia
Bench: Prakash Tatia
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
:::
JUDGMENT
:::
S.B. Civil Writ Petition No.4537/2010.
Mustaq Ahmed & Ors. vs. Liyakat Ali & Anr.
Date : 14.5.2010
HON'BLE MR. PRAKASH TATIA, J.
Mr.Ravi Bhansali, for the petitioners.
- - - - -
BY THE COURT :
REPORTABLE Heard learned counsel for the petitioners.
The petitioners/tenants are aggrieved against the order dated 8.2.2010 by which the Rent Tribunal, Bhilwara permitted the respondents/ landlords to file affidavits in the proceedings for eviction of the tenants.
According to learned counsel for the petitioners, as per the procedure prescribed under the Rajasthan Rent Control Act, 2001 (for short 'the Act of 2001'), by Section 15, it is clear that the landlord is required to file all the affidavits and documents along with the eviction petition itself and thereafter, he cannot file any 2 affidavit or document. It is also submitted that in the present case, along with the petition, the landlords filed two affidavits which are of formal nature and then the petitioners filed reply to the eviction petition. The landlords then filed rejoinder and along with the rejoinder, he filed again a formal affidavit only. At this stage also, the landlords did not chose to file affidavits of the witnesses. The petitioners thereafter sought permission of the Tribunal to cross examine the witnesses of the plaintiffs which too was granted by the Tribunal. Thereafter, the applicants/ landlords filed an application for taking on record some more affidavits of his witnesses. That application was allowed by the impugned order dated 8.2.2010 on payment of costs of Rs.1,500/- and the case was fixed for cross examination of the witnesses of the applicants.
According to learned counsel for the petitioners, Section 15(1) of the Act of 2001 provides that the landlord is required to file not only petition but the affidavits along with the petition and he is also required to file documents and under Section 15, there is no provision which permits the landlord to file affidavits after filing of the reply by the tenant and after filing of the rejoinder by the landlord. It is also submitted that assuming for the sake of arguments that the landlord may file additional affidavits 3 but he must disclose reasons for not filing affidavits along with the eviction petition.
I considered the submissions of learned counsel for the petitioners and perused Section 15 of the Act of 2001 as well as the facts of the case.
Section 15 by making a provision as Sub- section (6) made the procedure as summary procedure in eviction matters covered under the Act of 2001. At the same time, as per Section 21 (3), even after making it clear that the Tribunal shall not be bound by the procedure laid down by the Civil Procedure Code, 1908 (for short 'C.P.C.') yet it has been specifically provided that it shall be guided by the principles of natural justice and subject to the provisions of the Act of 2001 and the Rules made thereunder. The Tribunal has been given power to regulate its own procedure and shall also have powers as are vested to the civil courts under C.P.C. while trying a suit or appeal in respect of the matters enumerated under Section 21(3) of the Act of 2001.
If the contention of learned counsel for the petitioners is accepted, it will be laying down that in the eviction petition, the landlord is required not only to file eviction petition accompanied by his own affidavit with relevant documents but he is required to file all 4 affidavits in support of his petition and thereafter, the landlord shall have no right to file any affidavit or evidence. If it is so, then the plaintiff is required to submit evidence without knowing the defence. Not only this, the plaintiff is required to file evidence only to the extent of his claim for seeking possession but shall not have any right to destroy the case of the tenant nor shall have any right to rebut the evidence filed by the tenant. The law, if, is read only mechanically, then only so can be held. The principles of natural justice require that the parties should know the case of the rival. The petitioner's case must be made known to the non- petitioner by specific pleadings. The same principle applies for the non-petitioner that he should put his defence in a manner so that it may be in the knowledge of the petitioner so that the petitioner may meet with the defence of the non- petitioner. In Section 15 itself, Sub-section (4) is a departure from the procedure provided under the C.P.C. where rejoinder or additional pleadings can be filed with the leave of the Court but here by Sub-Section (4), it has been specifically provided that the petitioner shall have right to file rejoinder to the reply filed by the tenant. This is compliance of the principles of natural justice by Sub-section (4) and obviously to avoid delay which may be caused as whenever any application is filed for additional pleadings or 5 submission, other party gets right to oppose it and the court is required to pass order and practice shows that in deciding such application, the court may take time and proceeding in the suit delayed not only for months but even upto years. To shorten this delay, Sub-section (4) in Section 15 has been made.
If we again look into the scheme of Section 15, we may found that it is landlord who is to file petition under the provisions of the Act of 2001. Then along with the petition, he is required to file affidavits and documents. We need not to examine what is the purpose of filing affidavits along with the petition, if the affidavits can be filed at subsequent stage after knowing the defence of the non-applicant so as to confine the evidence to the extent it is required to be given as some of the facts may be admitted by the non- applicant/tenant in reply to the petition for which there may not be necessity of giving evidence by the applicant. Be it as it may be, the procedure as understood by general prompted them to file the affidavits of formal nature. At this juncture, it will be appropriate to mention here that now the affidavits by practice have become of two nature - one of formal and another affidavit self contained and complying with all the requirements of disclosing the facts in the affidavit itself rather than admitting the facts stated in the annexed petition. As per Sub-section 6 (2), the Rent Tribunal is required to issue notice accompanied by the copies of petition, affidavits and documents to the tenant/non-applicant. Then, the tenant is required to file reply as per Sub- section (3) and he is also required to file affidavits and documents after serving copies of the same upon the applicant. Then a right has been given to the applicant to file rejoinder. However, in sub-section (4), it has not been provided that the rejoinder should be accompanied with affidavit of the petitioner or at this stage, along with the rejoinder, the petitioner is required to file affidavits of his witnesses also. Then the tribunal is required to fix the next date of hearing as provided under Sub-section (5) and Sub- Section (6) provides that during the course of hearing, the Tribunal shall hold summary inquiry as it deems necessary to decide the petition. What is summary inquiry is not defined in the Act and it has been left to the discretion of the Rent Tribunal by making provision that "summary inquiry as it deems necessary" by the Rent Tribunal.
The rights of the landlord and tenant are governed by the provisions of Transfer of Property Act and they are controlled, restricted and regulated by the State Act and in the State of Rajasthan by the Act of 2001 for the subject for which the Act of 2001 has been enacted. Any order passed under the Act of 2001 shall necessarily have civil consequences. The law as framed in the 7 Act of 2001 by providing Sub-section (3) of Section 21 itself provides that all the proceedings before the Rent Tribunal shall be guided by the principles of natural justice. The principles of natural justice also require knowing of each other's case in the litigation by the parties so that they may prove their case by evidence and may destroy other's case by evidence and that can be done after knowing the case of other. Therefore, if the landlord files a petition for eviction under the Act of 2001 and files affidavits and documents along with the petition and as per practice, files affidavits of formal nature along with the petition, then after knowing the defence of the other party only can submit his evidence and, therefore, he gets right to file affidavits to substantiate his claim in the petition and to prove the facts pleaded for the relief which he wants to take from the Tribunal and for getting relief, the petitioner is required to meet with the defence. Therefore, the evidence can start only after the pleadings are complete. Therefore, the evidence starts under the provisions of the Act of 2001 specifically under Sub-section (6) of Section 15 only when pleadings stand completed by the parties and hearing starts wherein summary inquiry may be the procedure. Therefore, after filing rejoinder, the landlord gets a right automatically of filing the affidavits. There is no provision under the Act of 8 2001 which limit the landlord's right to file affidavits after the pleadings and in the course of inquiry. Therefore, even filing of the application seeking permission to file affidavits after rejoinder is not necessary.
In view of the above reasons, if the Tribunal has allowed the landlord to file affidavits which in fact is evidence in the petition, on the basis of which the Tribunal can decide the matter, the Tribunal has not committed any error of law but has in fact given effect to the principles of natural justice.
At this juncture, this Court is constrained to observe that this Court is deprecating the practice of the Tribunals in passing the orders as has been passed in this case which is absolutely non-speaking order so far as for it allowed the application of the landlord/applicant and further passed absolutely non-speaking order for imposing the costs. The total order passed by the tribunal is as under :-
"08.02.10 वकल य फर कन उपस त ।
प न द न ककत 13.12.07 पर बहस सन गई।
प न 1500/- र० पर व क र ककय ज त ह# । शप पत
रक र पर ललय जत ह# । सजरह अज) पर द नक
15.04.2010 क* पश ह*"
The Tribunals are committing serious error of law if they are imposing costs without giving a 9 single reason for imposing the costs. At this juncture, it will be appropriate to say that since the order dated 8.2.2010 is a non-speaking order and such type of practice is required to be deprecated, even then the petitioners cannot get any relief on this count because by setting aside the order impugned of this nature, would result into illegality only and, therefore, the conclusion which has been drawn by the order dated 8.2.2010 is since legal, therefore, the writ petition is dismissed.
In the scheme as discussed above, once it has been held that the landlord has right to file the affidavits after pleadings are complete upto the stage of rejoinder, then the tenant can file his evidence only after knowing the evidence of the plaintiff. Therefore, the tenant thereafter gets right to file the affidavits to rebut the evidence of the plaintiff and to strengthen his case further. The petitioner shall have a right to file additional affidavit without any permission of the court because of his turn for filing evidence comes after the evidence of the plaintiff.
The procedure as described above doesn't mean that it will delay the litigation and it is the duty of the Tribunal to regulate the proceedings and even if there is some delay, then also there cannot be compromise with the principles of 10 natural justice in the civil proceedings in any manner. The right of the parties to submit the evidence is their inherent right in the litigation which cannot be compromised and without compromising that, the Tribunal may proceed to decide the matters in accordance with law only but in the name of saving time by not passing the orders of nature like which has been passed in this case, which is in clear violation of law as the order is non-speaking order.
With the aforesaid observations and directions, this writ petition is dismissed.
(PRAKASH TATIA), J.
S.Phophaliya