1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT Murari Lal V/s. Rent Tribunal & Anr. S.B. CIVIL WRIT PETITION No.10284/08 S.B. Civil Writ Petition under Articles 226 & 227of the Constitution of India Date of Judgment :: 21.08.2009 Reportable HON'BLE MR.JUSTICE R.S. CHAUHAN Mr. Shailesh Prakash Sharma for the petitioner. Mr. M.K. Jain, for the respondents. The petitioner has challenged the order dated 26.08.2008 whereby the Rent Tribunal, Alwar has dismissed the petitioner's application for filing affidavits of three persons. The brief facts of the case are that on 27.10.1983, the petitioner had bought a shop, the shop-in- dispute in this case, through a registered sale-deed from one Mr. Labh Chand. The said shop was rented out to one Mr. Phool Chand. Along with Mr. Phool Chand, Mr. Narendra Kumar, respondent No.2, also carried out the business in 2 the said shop. Mr. Phool Chand expired on 09.02.2001; after his death, Mr. Narendra continuing to be the tenant in the shop. Since the petitioner himself was engaged in the business of manufacturing of copies, in the name and style of M/s. Goyal Copy Manufactuers, he required the said shop for running his business. Therefore, on 08.02.2004, the petitioner filed a suit for eviction under Sections 9 and 15 of the Rent Control Act, 2001 on the ground of personal necessity. Mr. Narendra kumar filed a written statement and denied the relationship of landlord and tenant. On 15.07.2006, the learned Tribunal framed the issues. On 01.09.2006, the petitioner filed an application for seeking permission to submit affidavits of three persons whose affidavits could not be submitted inadvertently at the time of filing of the plaint. Mr. Kumar vehemently opposed the said application. Vide order dated 26.08.2008, the said application was dismissed. Hence, this petition before this Court. Mr. Shailesh Prakash Sharma, the learned counsel for the petitioner, has contended that the burden of proof lies on the plaintiff to prove his case through cogent evidence. This burden of proof has been placed not only by a statute such as the Evidence Act, but is also the right of a 3 plaintiff under Article 21 of the Constitution of India to plead and to prove his case. For, the right to a fair trial is an essential part of the concept of “life and personal liberty” enshrined in Article 21 of the Constitution of India. Secondly, Section 15 of the Act is pari materia with Order 8 Rule 1 of CPC. In catena of cases, the Hon'ble Supreme Court has held that the time limit given for filing the reply or filing the affidavit is not mandatory, but is merely directory in nature. Therefore, right to file affidavit cannot be denied on the hyper-technicality of delay. Lastly, justice should not only be done, but it should appear to be done. In order to buttress his contention, the learned counsel for the petitioner has relied upon the cases of Ramesh Kumar V/s. Chandu Lal & Anr. [RLW 2009(2) 1547 (Raj.) (DB)], and Ganesh Kumar V/s. Rent Tribunal, Alwar & anr. (S.B. Civil Writ Petition No.2408/06 decided by this Court on 04.07.2006). On the other hand, Mr. M.K. Jain, the learned counsel for the respondent, has placed the provisions of Section 15(1) of the Act and has argued that since the time frame has been prescribed by the Legislature, the time frame has to be adhered to. Therefore, the petitioner was not justified in claiming the right to submit the affidavits after an inordinate delay of two years. Moreover, such affidavits 4 could not be filed after the issues were framed by the learned Tribunal. In order to buttress his case, the learned counsel has relied upon the case of Pukh Raj V/s. Judge, Rent Tribunal & Ors. [2008 (3) WLC 461]. Heard, the learned counsel for the parties, perused the impugned order and considering the case law cited at the Bar. The right to plead and to prove the case emanates not only from the common law, but is also guaranteed by the Constitution of India. In a democracy, every person enjoys the said right contained in the concept of “life and personal liberty”. Article 21 of the Constitution of India guarantees the right to a fair trial. The concept of a fair trial is not just limited to a criminal trial, but also extends to a civil suit. According to the Evidence Act, the burden of proof is on the plaintiff to establish his case by preponderance of probabilities. Although the legislature, in its wisdom, has tried to streamline the procedure for taking evidence for proving the case, but such a simplification of the procedure cannot mean that the right to prove one's case has been rendered illusory. The right continues to be a substantial one. Therefore, the said right cannot be diluted except in 5 rare circumstances. The said right should not be denied on hyper-technical grounds. For, the foremost duty of a Court or tribunal is to do justice between the parties. Justice is not only a sacred concept, but is a constitutional mandate. According to the preamble of the Constitution of India imparting justice is a constitutional goal. While implementing the constitutional mandate, hyper-technicalities, insensitivities, high handedness, callousness and arbitrariness have no role to play. The foremost consideration which should weigh in the mind of the learned Tribunal is whether the affidavit or the document would help in answering the issues framed, in resolving the dispute in doing substantial justice between the parties. If the answers to these three issues are in the affirmative, then the document/affidavits should be allowed. In the case of Ramesh Kumar (supra) a Division Bench of this Court clearly held that provisions of Section 15 of the Act are directory in character and not mandatory in nature. Therefore, the learned Tribunal should have allowed the petitioner to file his three affidavits in order to substantiate his case. Of course, the learned counsel for the respondent has relied upon the case of Pukh Raj (supra). 6 However, the said case is not applicable to the present case. For, in the said case, this Court was convinced that the documents which were submitted were not relevant to the controversy involved. Therefore, this Court had upheld the order of the learned trial Court refusing to accept the documents and had refused to interfere with the impugned order. However, in the present case, affidavits filed by three persons would certainly throw light on the controversy involved, would facilitate the learned Tribunal in reaching a just conclusion, and would also assist the learned Tribunal in doing substantial justice between the parties. Therefore, the case of Pukh Raj (supra) is in applicable to the present case. For the reasons stated above, the order dated 26.08.2008 is, hereby, quashed and set aside. The learned Tribunal is directed to grant an opportunity to the petitioner to file the necessary affidavits. The affidavits shall be taken on record. It is further directed that the respondents be granted an opportunity to file counter affidavit if necessary, within a reasonable time. With these observations, the petition is allowed. No order as to costs. [R.S.CHAUHAN]J A.Asopa/