// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.4055/2005 Kamal Dubey S/o Dr. S.N. Dubey Versus Rajendra Prasad S/o Shri Radheylal Sharma and Others Date of Order ::: 27.05.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri R.K. Agrawal, Counsel for petitioner Shri J.C. Jain and Shri Amit Gupta, Advocate, for Shri Behari Lal Agarwal, Counsel for respondents #### //Reportable// By the Court:- Heard learned counsel for the parties. Defendant No.1-tenant has preferred this writ petition under Article 227 of the Constitution, challenging the impugned orders dated 5th June, 2004 passed by the Rent Tribunal, Ajmer and dated 21st March, 2005 passed by the Appellate Rent Tribunal, Ajmer (Annexures 1 and 2). The Rent Tribunal passed a decree of eviction in favour of the plaintiff-respondent No.1 in respect of the rented shop on the ground of personal bona-fide necessity and the Appellate Tribunal maintained the same. The plaintiff-landlord Rajendra Prasad, respondent No.1 herein, filed an application under Sections 9 and 6 of // 2 // the Rajasthan Rent Control Act, 2001 (hereinafter shall be referred to as 'the Rent Control Act') for grant of decree of eviction in respect of rented shop on the ground of personal bona-fide necessity as well as subletting of the rented shop by the defendants No.1 and 2 to the respondents No.3 and 4, and for revision of the monthly rent. It was averred in the application that late Dr. S.N. Dubey was original tenant in the rented premise, who died about 20-25 years ago and, after his death, his son Kamal Dubey, the defendants No.1, and his wife Smt. Gomti Devi, the defendant No.2, became statutory tenants in the same; the defendant No.1 Kamal Dubey is a Government servant and is serving in the treasury for the last 20-22 years and the defendant No.2 is a house wife; the defendants No.1 and 2 have sub-let the said premise without any written permission of the plaintiff, to the defendants No.3 and 4. It was further averred that two sons of the applicant, namely, Ranjan Sharma and Gunjan Sharma, aged about 24 and 21 years respectively, have passed their first year examination and they want to start their business of plastic, molding, sanitary and pipe fittings in the rented premise. The applicant's both sons have completed their studies; they have no business premise for doing their business; they have got the experience of the business at Delhi; they have sufficient funds to start their business, // 3 // therefore, there is a reasonable and bona-fide need of the the disputed premise to them to start their business, hence a decree of eviction in favour of the plaintiff and against the defendants may be passed. It was averred in the application that the disputed premise was rented out in 1964 at the monthly rent of Rs.35/- and the same is liable to be revised under Section 6 of the Rent Control Act. In support of the application, the applicant filed his affidavit and the affidavits of his son Ranjan Sharma and, produced documentary evidence Exhibit-1 to Exhibit-6. The defendants filed their reply/written statement and contested the application of the plaintiff pleading therein that the applicant has no necessity of the rented premise reasonably and bona-fide. The plaintiff has ten other shops and some of them are in his possession where his sons may start their business. The defendant No.2, after the death of her husband, is running a business in the rented premise with the help of one servant and grandson. Shri Mani Dubey, grandson of defendant No.2 Smt. Gomti Devi, is studying in BDS Course and, on completion thereof, will start his business in the rented premise after the death of the defendant No.2, therefore, there will be a necessity of the rented premise for the business for Mani Dubey on completion of his BDS course. The allegation regarding sub- // 4 // tenancy was denied by the defendants. In support of the reply, the defendant No.1 Kamal filed his own affidavit and the affidavits of Duli Chand and Panna Lal. The applicant filed rejoinder wherein it was pleaded that it is wrong to say that the plaintiff is the owner of the so-called ten shops as described by the defendants in their written-reply. He contended that, as per the details of ten shops as given in the reply, the Shops No.4, 5 and 10 belong to Jain & Company and he is not the owner of the same; the remaining Shops No.1 to 3 and 6 to 9 are occupied by other tenants and, at present, no shop is lying vacant wherein applicant's sons may start their business. It was also denied that the defendant No.2 is doing her business after the death of her husband with the help of servant and grandson. It was contended that she is a housewife and is not running any business in the rented premise. The applicant further filed his own affidavit in support of the rejoinder and also the documentary evidence Exhibit-7, Exhibit-8, Exhibit-3 and Exhibit-5. The learned Tribunal heard the arguments of the parties and formulated four questions for determination, as mentioned in Para 6 of the Judgment, in respect of the revision of monthly rent, reasonable and bona-fide necessity of the rented premise of the plaintiff, subletting of the rented premise by the defendants No.1 and 2, to defendants No.3 // 5 // and 4 and an objection regarding maintainability of the application. The learned Tribunal, after considering and scrutinizing the evidence of both the parties, revised the rent from Rs.35/- to Rs.315 per month. So far as the reasonable and bona-fide necessity of the rented premise is concerned, the trial court recorded a finding that the defendant No.1/petitioner Kamal Dubey is a government servant serving in the treasury for the last 20-22 years; no other alternative accommodation is available with the applicant. So far as the details of the alternative accommodation, as given in reply, is concerned, it was observed that the plaintiff is not the owner of Shops No.4, 5 and 10 and the real owner of these shops is Jain & Company. The remaining Shops No.1 to 3 and 6 to 9 are occupied by other tenants. The best judge to opt for particular premise is applicant-landlord himself and tenant cannot dictate his terms upon him to opt any other shop to satisfy his reasonable and bona-fide necessity. The necessity pleaded by the defendants is that Mani Dubey, the grandson of original tenant late Dr. S.N. Dubey, will start his clinic after completing his studies of BDS course, which is a future necessity of the tenant. The defendant No.2 was only a housewife and not running any business. The Tribunal recorded a finding that the plaintiff has reasonable and bona- // 6 // fide necessity of the rented premise. So far as the ground regarding sub-tenancy of the rented premise by the defendants No.1 and 2 to defendants No.3 and 4 is concerned, the learned Tribunal has recorded a finding that there is lack of evidence in this regard and this issue was accordingly decided in favour of the tenant. Consequently, a decree of eviction and revision of rent was passed in favour of the plaintiff, the respondent No.1 herein. Being aggrieved with the finding of the Tribunal in respect of eviction on the ground of reasonable and bona- fide necessity, the tenant preferred an appeal; whereas, being aggrieved with the finding of the Tribunal in respect of subletting of the premise, the landlord filed his cross- objections before the Appellate Tribunal. The learned Appellate Tribunal dismissed the appeal as well as the cross- objections, both. The learned counsel for the petitioner contended that both the parties in the present case adduced evidence on their behalf by filing affidavits of their witnesses but the Tribunal committed an illegality in not passing any order of cross-examination of the witnesses, therefore, the orders- passed by the Tribunal and affirmed by the Appellate Tribunal, both, are liable to be set-aside. It is further contended that the defendants filed affidavits of their witnesses contending therein that ten other shops are // 7 // available with the plaintiff, therefore, there is no reasonable and bona-fide necessity of the rented premise and the order of eviction passed by the learned Tribunal is liable to be set- aside. He contended that the witnesses of defendants, who filed their affidavits, were not cross-examined by the opposite-party, therefore, there was no reason for not believing the contents of the affidavits of the defendants' witnesses and the same should have been believed and, in these circumstances, the finding regarding bona-fide necessity of the Tribunal, is liable to be set-aside by this Court. The learned counsel for the respondents contended that the procedure before the Rent Control Tribunal for adducing the evidence of the parties is by way of affidavits and by filing their respective documents. Both the parties led their evidence by filing their affidavits of their witnesses as well as documents. He contended that the defendants did not make any prayer before the Tribunal by filing an application or orally to allow the defendants to cross-examine the witnesses of the plaintiff, and, in absence of it, the Tribunal did not pass any order of cross-examination of plaintiff's witnesses on their affidavits. He also contended that even the plaintiff did not file any application for cross-examination of the defendant's witnesses on their affidavits, therefore, in the present case, both the parties filed the affidavits of the // 8 // witnesses and no prayer was made orally or in writing by either party for cross-examination of the witnesses of the opposite-party. In these circumstances, no illegality has been committed by the Rent Tribunal in not passing an order for cross-examination of the witnesses. So far as finding with regard to reasonable and bona-fide necessity of the rented premise is concerned, the learned counsel for the respondents contended that the original tenant of the rented shop was late Dr. S.N. Dubey, who died about 20-25 years ago and, after his death, his son Kamal Dubey and wife Smt. Gomti Devi became statutory tenants. Shri Kamal Dubey is admittedly a government servant and serving in the treasury, and the defendant No.2 Smt. Gomti Devi, a housewife, has died. So far as availability of alternative accommodation, as alleged by the defendants in their reply and evidence, is concerned, the defendant No.1 himself admitted in the reply that so far as Shops No.4, 5 and 10, as mentioned in reply, are concerned the owner of these shops is Jain & Company and not the plaintiff and, so far as the remaining shops No.1 to 3 and 6 to 9 are concerned, the same are in occupation of other tenants and no shop is lying vacant. The Rent Tribunal has considered the evidence of both the parties in detail and recorded a finding in favour of plaintiff and the said finding has been affirmed by the Appellate Tribunal also, therefore, // 9 // there is concurrent finding about reasonable and bona-fide necessity of the premise in favour of the plaintiff-respondent No.1, which should not be and cannot be interfered with by this Court. I have considered the submissions of learned counsel for the parties and examined the impugned orders passed by the Rent Tribunal as well as the Appellate Tribunal, and other documents annexed with the writ petition, in the light of submissions of learned counsel for the parties. The applicant-plaintiff-respondent No.1 Rajendra Prasad filed an application for revision of rent as well as eviction of rented premise on the ground of bona-fide necessity as well as subletting of rented shop by defendants No.1 and 2 to defendants No.3 and 4. As per the procedure prescribed under Section 21 of the Rent Control Act, the application for eviction of disputed premise and revision of rent is filed by the applicant along- with affidavit of his witnesses and necessary documents, and similar is the procedure for defendants to file their reply along-with affidavit of their witnesses and necessary documents, which are to be exhibited in the case. The Tribunal, where it appears to it that it is necessary in the interest of justice to call a witness for examination or cross- examination and such witness can be produced, may order attendance for examination or cross-examination of such a // 10 // witness. As per sub-section (3) of Section 21 of the Rent Control Act, the Rent Tribunal and the Appellate Rent Tribunal are not bound by the procedure laid down in the Code of Civil Procedure and they have been empowered to regulate their own procedure. It is not necessary for the Rent Tribunal or the Appellate Rent Tribunal to pass an order for examination or cross-examination of the witnesses in each and every case, but, as per Section 21 of the Rent Control Act, it is clear that where it appears to the Rent Tribunal or the Appellate Rent Tribunal that it is necessary in the interest of justice to call a witness for examination or cross- examination then they may order attendance for examination or cross-examination of such witness. Section 21 of the Rent Control Act is reproduced as under:- “21. Procedure and powers of the Rent Tribunal and the Appellate Rent Tribunal.- (1) In every case before the Rent Tribunal and the Appellate Rent Tribunal the evidence of a witness shall be given by affidavit. However, the Rent Tribunal or the Appellate Rent Tribunal, where it appears to it that it is necessary in the interest of justice to call a witness for examination or cross- examination and such witness can be produced, may order attendance for examination or cross-examination of such a witness. (2) The documents filed before the Rent Tribunal by the petitioner shall be distinctly marked by him as Ex-1, Ex-2 and so on in the red ink and the documents filed by the respondent shall be similarly distinctly marked by him as Ex-A1, Ex-A2 and so on in red ink and in the affidavits the documents // 11 // shall be referred by these exhibit marks and signatures or other parts of the documents referred to in the affidavits shall be distinctly marked by the party filing the document as A to B or C to D and so on in red ink. (3) The Rent Tribunal and the Appellate Rent Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (Central Act No.5 of 1908), but shall be guided by the principal of natural justice and subject to other provisions of this Act or the Rules made thereunder and shall have powers to regulate their own procedure, and for the purpose of discharging their functions under this Act they shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Central Act No.5 of 1908) while trying a suit or an appeal in respect of following matters, namely:- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents: (c) reviewing its decision; (d) issuing commissions for the examination of witnesses or documents; (e) dismissing petition for default or deciding it ex-parte; (f) setting aside any order of dismissal of any petition for default or any order passed by it ex-parte; (g) bringing legal representatives on record; and (h) any other matter as may be prescribed. (4) Rent Tribunal shall not grant any // 12 // adjournment without written application and recording the reasons therefor in writing. (5) Any proceeding before the Rent Tribunal or Appellate Rent Tribunal shall deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purpose of section 196 of the Indian Penal Code, 1860 (Central Act No.45 of 1860) and the Rent Tribunal or the Appellate Rent Tribunal shall be deemed to be a Civil Court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (Central Act No.2 of 1974).” A petition or an appeal before the Rent Tribunal or the Appellate Tribunal is filed in the model forms specified in Schedule-A and B as prescribed under Section 22 of the Rent Control Act. Section 22 is also reproduced as under:- “22. Model Forms.- Every petition or appeal so far as possible shall be in the model form specified in Schedule A and Schedule B, and every recovery certificate shall be in the model form specified in Schedule C, of this Act.” So far as the present case is concerned, the learned counsel for the defendant-petitioner frankly admitted that he did not make any prayer either orally or in writing before the Rent Tribunal for examination or cross-examination of any witness either of the plaintiff or defendant in the present case. His submission is that it is incumbent on the part of the Rent Tribunal to pass an order in each and every case for examination or cross-examination of the witnesses even if there is no prayer. The submission of learned counsel for the petitioner cannot be accepted in view of the Section 21 of the // 13 // Rent Control Act which specifically provides that where it appears to the Rent Tribunal or the Appellate Rent Tribunal that it is necessary in the interest of justice to call the witnesses for examination or cross-examination then only the necessary orders will be passed for attendance of the witness and it is not necessary that as a matter of routine or right the order for examination and cross-examination of the witnesses should be passed in each and every case. Admittedly, in the present case, there was no oral or written request on behalf of either party to call any witness for examination or cross-examination, therefore, no order was passed in the present case, therefore, I do not find any force in the submissions of the learned counsel for the petitioner in this regard. So far as another submission of learned counsel for the petitioner about finding of the Tribunal in respect of reasonable and bona-fide necessity of the rented premise is concerned, I find that the learned Tribunal has examined the evidence i.e. affidavits as well as exhibits, in detail, adduced by both the parties and, after scrutinizing the same, recorded a finding that the original tenant in the rented premise was Dr. S.N. Dubey, who died about 20-25 years ago and thereafter his son and widow, who are defendants No.1 and 2, became statutory tenants. The defendant No.1 Kamal Dubey, who filed this writ petition, is admittedly a // 14 // Government servant serving in the treasury and the defendant No.2, the widow of original tenant Dr. S.N. Dubey, has now died, which is clear from the orders passed by both the Tribunals below. The case of the applicant-plaintiff was that the rented premise is required by the applicant for his two sons – Ranjan Sharma and Gunjan Sharma for starting their business of Plastic, molding, sanitary & pipe fittings, and there is no other alternative accommodation available with them for this purpose. So far the evidence of the defendant regarding alternative accommodation available with the plaintiff is concerned, the same was not found to be sufficient, satisfactory and reliable by the Rent Tribunal as well as the Appellate Rent Tribunal and rightly so. The question of bona-fide necessity of the rented premise in favour of the plaintiff is purely a question of fact in the facts and circumstances of the present case and it is settled law that concurrent finding of fact cannot be interfered with by the High Court. The High Court, while sitting in extra-ordinary jurisdiction does not act as an appellate court against the impugned orders. Even otherwise, the High Court, while sitting in second appeal under Section 100 of the Code of Civil Procedure does not interfere with the concurrent finding of fact recorded by both the courts below. // 15 // Therefore, the finding of fact arrived at by the Rent Tribunal as well as the Appellate Rent Tribunal, cannot be interfered with by this Court in the facts and circumstances of the present case and for the reasons mentioned above. In view of the above discussion, I do not find any merit in the writ petition and the same is accordingly dismissed. (Narendra Kumar Jain) J. //Jaiman// // 16 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Stay Application No.3541/2005 In S.B. Civil Writ Petition No.4055/2005 Kamal Dubey S/o Dr. S.N. Dubey Versus Rajendra Prasad S/o Shri Radheylal Sharma and Others Date of Order ::: 27.05.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri R.K. Agrawal, Counsel for petitioner Shri J.C. Jain and Shri Amit Gupta, Advocate, for Shri Behari Lal Agarwal, Counsel for respondents #### By the Court:- Consequent upon dismissal of the writ petition itself, the stay application, filed therewith, does not survive and the same is also dismissed. (Narendra Kumar Jain) J. //Jaiman//