BALIA, J. - (1.) 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' x 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. 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. 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. 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, cross- examination 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. 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.
(3.) 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. 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. 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, cross- examination 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. ;