Rajesh Balia, J.:— Having heard the learned counsel for the parties and perused the order under challenge, we are of the opinion that this petition deserves to be allowed without entering into challenge to the vires of Sec. 21 of the Rajasthan Rent Control Act, 2001.
2. The petitioner is a tenant of respondent. The respondent filed an application for evicting the petitioner before the Rent Tribunal, Bhilwara. The eviction was sought on the ground that the applicant needs the suit premises for bona fide necessity of his own as well as for his son for constructing a big show-room for carrying on the business on the premises and that the applicant or his son does not have any other premises for carrying on the business. It has also been stated in the application that after including the two tenanted shops and the passage, the constructed show-room would ad measure 20′ × 9′ and he will not be able to carry on his business in a smaller premises. It was also stated that the tenant has separately established a provision shop on the southern side of the shop in question.
3. The tenant-petitioner contested the application alleging that the applicant had another shop available to him in which he and his son are carrying on business. The applicant is a retired person and only his son is carrying on business. It was also stated that the shop which is stated to be tenant's shop is not in possession of the present petitioner but it is in tenancy of one Ghanshyam Das. It was also pleaded that since the defendant is carrying on business in the suit shop for long, he has acquired certain amount of goodwill in the shop and in case of eviction, it would cause greater hardships to him.
4. On the affidavits filed by both the sides in support of their respective claims, an application was also filed by the present petitioner for permitting him to cross examine the applicant with reference to the affidavits filed in support of their claims. It is admitted case before us that without deciding that application, the eviction application was decided and allowed. The appeal against the same has also been dismissed.
5. The principal contention has been that where oath against oath comes before the Court in the form of affidavits, denial of opportunity to cross-examine the deponent-witnesses on their affidavits occasions failure of justice as in such cases, crossexamination affords the valuable material to appreciate to truth of one of the contesting oaths and the matter being dependent on testimony of the witnesses alone, without the witnesses being tested on the anvil of cross-examination, it results in denial of a fair trial.
6. In the present case, the Rent Tribunal even without applying its mind to the application whether cross-examination ought to be permitted or not, has kept it pended and instead decided the application for eviction itself. Apparently, such a course cannot be permitted to be adopted.
7. Assuming that Sec. 21 of the Act is intra vires and gives discretion to the Presiding Officer of the Rent Tribunal, after considering the complexities of the case; whether to permit a party to cross-examine the other on affidavit on demand being made for cross-examination before determining the application it has to be decided, otherwise the defects in the procedure remains which occasions failure of justice on account of breach of principle of natural justice, that cannot be permitted to stand.
8. Moreover, it is to be taken note of that discretion vested u/s. 21 is not a discretion merely to deny the just prayer for permitting a party to cross examine the witnesses. The right of cross-examination in a mechanical way may not have been permitted by the Rent Tribunal as a matter of course but it has been empowered to vouchsafe a fair trial of eviction application. At the same time, it has to be kept in mind that even under the existing provisions of Code of Civil Procedure where the applications are required to be decided on affidavits, where a party disputes the facts stated in a particular case and desires to cross-examine the deponents, ordinarily such cross-examination has to be granted.
9. In these circumstances, the Rent Tribunal cannot take it that; ordinarily the prayer for cross-examination has to be refused and only in rare cases, cross-examination is to be permitted. The principle is other way round. Where the decision depends on oral testimony and the affidavits given forms oath against oath, and facts deposed in affidavits are not verifiable from other material on record, ordinarily in such cases, crossexamination ought to be permitted in the interest of giving fair trial to the litigants. In the present case, such a procedure has not been adopted, leaving a taste of unfair trial to the litigants. Therefore, orders impugned cannot be sustained.
10. The Appellate Court while accepting that the application for cross-examination ought to have been decided, has again rejected the prayer on the ground that under the provisions of the Rent Control Act, 2001 the expression “where it appears to it that it is necessary in the interest of justice to call a witness for examination or cross-examination” given out that only where it is felt necessary to call a witness for examination or cross-examination, such witnesses can be produced and that requirement of calling a witness in the witness box is not necessary and since in the present case, the applicant has not given the details on what aspects he wants to cross-examine the non-applicant, it cannot be considered to be in the interest of justice to permit cross-examination.
11. This approach, in our opinion, is unable to sustain itself.
12. The requirement of cross-examination is to be judged not with the touch stone of requirement of Courts to do justice as envisaged u/O. 41 R. 27 for permitting Appellate Court to admit additional evidence, but from the point of necessity of litigant to place his case fairly before the Court, the question has to be judged.
13. On the pleadings of the parties which we have noticed above. This issue before the Rent Tribunal was one about the requirement of the applicant of the suit premises for his own personal use. What was the necessity for which the eviction was sought and the defence taken by the respondents were also before the Tribunal. It is not the requirement of the law before a witness to cross-examine can be called that a questionnaire should be sent to the Court in advance disclosing what questions are to be asked to the witnesses so that witness can be tutored in advance. It is always for the Court to consider on the basis of pleadings and issues framed; what are the essentials to be proved and that is to be kept in mind by the Court while permitting the examination and cross-examination of the of the witnesses and not to deviate from this basic requirement of placing the material before it. Instead of discharging its obligations to have a control over its procedure and about what is relevant or irrelevant, it cannot scuttle a fair trial to the litigants of getting into the truth about the allegations, but finding a short cut by not permitting cross-examination of witnesses in most cases as a matter of course where the dispute relates to the questions of fact and findings depends on testimony of statement on oath of either parties, results breach of principle of natural justice which is otherwise required to be followed by any Tribunal entrusted with the task of dispensation of justice even in the absence of any specific rule.
14. The Rent Control Act does not prohibit adherence to the basic principles of natural justice keeping in view of the controversy which the Court has to decide. The Rent Tribunals taking the view that as a matter of course cross-examination is not to be permitted, without considering the controversy which is required to be decided and the materials other than affidavit available on record which can help in assessing the necessity of cross-examination of witnesses, in our opinion, cannot be said to be right in their approach. It is the obligation of the Rent Tribunal while considering the application for cross-examination to consider pleadings, the facts to be proved by the other party, besides the affidavit, the other material which can help in assessing the requirement of leading evidence and then to decide whether in a given case, permission to cross-examination will be refused. The refusal may be in rare cases. Ordinarily, where the question of facts depends on oral testimony, the crossexamination of deponent has to be permitted when demanded.
15. It may further be noticed that sub-sec. (3) of Sec. 21, on the one hand clearly provides that the Rent Tribunal and the Appellate Rent Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but on the other hand, it clearly ordains that they shall be guided by the principle of natural justice and subject to other provisions of this Act. It inheres into it that ordinarily, statement of any witness ought not to be accepted unless he being cross-examined, if such crossexamination is demanded.
16. In these circumstances, the writ petition succeeds and is allowed. The impugned judgment dated 29.5.2004 (Annexure-4) passed by Rent Tribunal, Bhilwara and the appellate order dated 20.8.2004 (Annex. 5) passed by the Rent Appellate Tribunal (District Court), Bhilwara are quashed and the case is remitted back to the Rent Tribunal (Civil Judge, Sr. Division), Bhilwara for deciding the application filed by the respondent afresh by permitting the petitioner to cross-examine the witnesses whose affidavits have been produced by the applicant and also permit the applicant, if so required, to cross-examine the deponents whose affidavits have been produced by the petitioner in support of his case. However, care should be taken that as far as possible, the witnesses of each party should be examined on one single day and application be disposed of as early as possible within a period of two months.
17. Both the parties may appear before the Rent Tribunal on 17.1.2005 It will be the responsibility of both the learned counsel to inform their parties to appear before the Court on the next date of hearing. The Tribunal shall fix two dates for crossexamination of deponents of each party. It will be the responsibility of each party to keep their witnesses ready for cross-examination on such dates fixed by the Tribunal. No adjournment shall be granted except it becomes necessary for reasons to be recorded by the Tribunal.
18. There shall be no order as to costs.
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