Allahabad High Court
M/S New Agarwal Toys Emporium vs Keshari Nandan Pratap Sahi on 29 July, 2024
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:120981 Court No. - 6 Case :- MATTERS UNDER ARTICLE 227 No. - 8052 of 2024 Petitioner :- M/S New Agarwal Toys Emporium Respondent :- Keshari Nandan Pratap Sahi Counsel for Petitioner :- Pavan Kishore,Piyush Kishore Srivastava Hon'ble Saral Srivastava,J.
1. Heard learned counsel for the petitioner and learned counsel for the respondent.
2. The petitioner by means of the present writ petition has assailed the order dated 31.05.2024 passed by the Rent Tribunal/Additional District Judge, Court No.14, Varanasi in Rent Appeal No.107 of 2023 (M/s. New Agarwal Toys Emporium Vs. Keshari Nandan Pratap Sahi), whereby the application 58Ga of the petitioner seeking permission to cross examine Kesari Nandan Pratap Shahi has been rejected.
3. It appears that a proceeding for eviction of petitioner has been initiated by the respondent-landlord which was allowed by the Rent Authority by the judgement and order dated 22.02.2023. Against which, the petitioner preferred Rent Appeal No.107 of 2023.
4. In the said appeal, the petitioner filed an application 58-Ga seeking permission to cross examine Kesari Nandan Pratap Shahi, which reads as under:-
"Appellant begs to submit as follows:-
1- That it is settled law that appeal is the continuation of suit.
2- That no opportunity was provided to the appellant before the trial court/Rent authority to cross examine the adverse party.
3- That it appears by the pleadings of the parties that there is certain scenario i.e. "1-Respondent demanded agreed rent from the appellant and appellant paid 19,82,000/- Nineteen Lakh eighty two thousand rupees upto 2014 to 2022 which is crystal clear by seeing the irrefutable evidences filed by the appellant, if appellant is not the tenant than for what purpose respondent took the money and if respondent took this money in terms of arrears of rent of chief tenant than why he filed the case for outdated cheque case. 2- Date of knowledge and cause of action shown by the respondent is totally frivolous. 3-respondent demanding the rent @ of 70,000 per month from the appellants on the other hand he filed the suit @ of 2500/- pm" where there is no evidence filed by the Respondent to prove their stand, before the court of justice.
4- That the oral evidences/testimony of the deponents and the credibility of the deponents need to be examined before the court of justice to check the genuinity and falsehood of the deponents.
5- That as per envisaged in the U.P. act no. 16 of 2021, it is necessary to cross examine the witness in the interest of justice.
6- That in the above noted circumstances it is just and necessary to order the attendance of the witness before the court of justice for cross examination by the adverse party in the interest of justice.
Prayer It is therefore most respectfully prayed that the honourable court be graciously pleased to permit the Appellant to cross examine Keshari Nandan Pratap Shahi/witness in the interest of justice so that justice be done.
Dated: 23-01-2024"
5. The aforesaid application has been rejected by the learned District Judge, Court No.14, Varanasi vide order dated 21.05.2024 on the ground that in proceeding before the rent authorities the dispute is to be decided on the basis of affidavit and cross examination is not permitted.
6. Challenging the aforesaid order, learned counsel for the petitioner has contended that in the facts of the present case, the cross examination of Kesari Nandan Pratap Sahi is necessary inasmuch as it is admitted by him that he has taken about Rs.19,82,000/- from the petitioner and in such view of the fact a clarification from him is necessary as to under what head he had taken the aforesaid money. It is submitted that the power is with the Rent Appellate Tribunal to allow a party to cross examine the witness under Section 33 (3) of U.P. Act No.16 of Uttar Pradesh Regulation of Urban Premises Tenancy Act, 2021 (hereinafter referred to as the Act No.16 of 2021), and therefore, the learned Judge has erred in law in rejecting the application. In support of his argument learned counsel for the petitioner has placed reliance upon a judgement of Sanjay Kumar Singh v. The State of Jharkhand, (Civil Appeal No. 1760 of 2022).
7. Per contra, learned counsel for the respondent has submitted that the application of the petitioner is misconceived inasmuch as the petitioner at Appellate stage cannot be permitted to cure the lacuna in his case by filing an application to cross examine the witness. It is contended that the power to permit cross examination is to be exercised in rare cases where the facts stated in affidavit cannot be proved by rebuttal in the affidavit. It is further submitted that even otherwise application is misconceived inasmuch if the petitioner wanted to cross examine Kesari Nandan Pratap Shahi, he should have filed an application before the Prescribed Authority. He further submits that the application filed by the petitioner does not state any reason as to why the petitioner did not file the said application for cross examination of Kesari Nandan Pratap Shahi before the Rent Authority. In such view of the fact, the application of the petition is misconceived and has rightly been rejected by the Rent Tribunal.
8. Be that as it may, perusal of the application of the petitioner, extracted above, discloses that the application does not disclose reason why he did not file any application seeking permission to cross examine Kesari Nandan Pratap Shahi before the Rent Authority. After the judgement has been delivered by the rent authority, the petitioner cannot be allowed to cure lacuna in his case by entertaining such an application. Though proviso to sub-section (3) of Section 33 of the Act No.16 of 2021envisages that Rent Authority or Rent Tribunal may call for witness for cross examination where it appears to it that examination or cross examination of such witness is necessary in the interest of justice, but it is evident from the plain reading of proviso to sub-section (3) of Section 33 of the Act that this power has to be exercised sparingly and in rarest of rare cases where a case has been made out by the party that examination or cross examination is necessary for the just and appropriate decision of the case.
9. In the present case, perusal of the application does not disclose that the petitioner has made out any such case which may necessitate the Rent Tribunal to invoke power conferred upon it under proviso to sub-section (3) of Section 33 of the U.P. Act No.16 of 2021.
10. So far as the judgement relied upon by the learned counsel for the petitioner is concerned, the said judgement is not applicable in the facts of the present case as in the said case the Apex Court was considering the scope of order 41 Rule 27 of C.P.C. and not the power conferred upon the Rent Authority or Rent Tribunal under proviso to sub-section (3) of Section 33 of the Act No.16 of 2021.
11. Thus, for the reasons given above, the writ petition lacks merit, and is accordingly dismissed with no order as to costs.
Order Date :- 29.7.2024 NS