S.B. CIVIL WRIT PETITION NO.6175/2006 (Mahesh Mirani Vs. Virendra Kumar & Anr.) Date of Order :: 26th September 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.H.R.Soni, for the petitioner Mr.R.K.Thanvi, for the respondent No.1 .... BY THE COURT: This matter was heard on 15.09.2008 and during the course of submissions when reference was made to the order dated 03.07.2007 as passed by this Court in CWP No.6176/2006, a copy of the said order was directed to be placed on record. During the course of submissions, reference was also made about the statements as recorded in the cross-examination of the plaintiff and a copy of such statement was also directed to be placed on record and the matter was ordered to be listed for dictation of order on 24th inst. On 24.09.2008, learned counsel for the petitioner pointed out that for personal difficulties, he could not obtain fresh copy of such statements and at request, the counsel was permitted to file the requisite copy on the record by the next date and the matter was ordered to be listed for dictation of order today. 1 Learned counsel for the petitioner has now placed on record a certified copy of the statements as recorded in cross examination of the plaintiff-respondent No.1Virendra Kumar. Having regard to the facts and circumstances of the case, learned counsel for the parties have been heard further. The present petitioner is facing a petition for eviction and revision of rent as filed by the respondent No.1 in relation to the premises on rent with him; and the said petition bearing No.341/2005, is pending with the Rent Tribunal, Jodhpur. The landlord-respondent No.1 has taken the ground for eviction in the said petition essentially of his reasonable and bona fide requirement for the purpose of business of his son Himanshu Vedi, said to be in 21 years in age. The present petitioner has filed reply contesting the ground so taken by the landlord and the said petition has been put to trial. It appears that the petitioner moved an application seeking permission to cross-examine the witness of the plaintiff-landlord and the said application was allowed in the first part of the order dated 05.09.2006 (Annex.15). By the same order, the learned Tribunal also considered an application moved by the plaintiff on 21.03.2006 wherein it was submitted that rejoinder was filed on 04.01.2006 but thereafter the counsel for the defendant (the present petitioner) filed two 2 additional affidavits and certain documents but the defendant was not entitled to file any such evidence after filing of the rejoinder. The learned Tribunal observed that under the Rajasthan Rent Control Act, 2001 the matters are to be decided in a summary enquiry within a time frame and the defendant was not given the liberty to file any document or reply after filing of rejoinder; and else, there would be caused unnecessary delay in the matter. Therefore, while allowing the application as moved by the plaintiff, the Tribunal directed the affidavits and documents as filed by the defendant-petitioner on 15.02.2006 to be placed in part “D” of the record. On 05.09.2006 itself, the Tribunal also considered two more applications as moved by the petitioner-defendant seeking permission to produce two more documents. However, the documents were considered irrelevant and hence, the applications were rejected by a separate order (Annex.16). Aggrieved, the petitioner has filed this writ petition wherein notices were ordered to be issued on 03.11.2006 but without any interim order. Arguing for the petitioner, learned counsel Mr.H.R.Soni has referred to the fact situation of the case and the documents sought to be produced and has referred to a decision of this Court dated 30.07.2007 as rendered in CWP No.4478/2007 and submitted that the approach of the learned 3 Tribunal in rejecting the documents only on the consideration that after filing of rejoinder no any document could have been filed cannot be said to be correct or in accord with law. Learned counsel further submitted that there had been subsequent developments in the matter inasmuch as the documents sought to be produced by the petitioner were indeed put to the plaintiff in cross-examination and he has given out the answers to related question and the documents were marked exhibits and, therefore, learned counsel submitted, when the documents have already been marked exhibit, it shall be in the interest of justice that the other aspects of the matter are left open to be considered by the learned Tribunal; and for that matter, the effect of the impugned orders may be annulled. Learned counsel Mr.R.K.Thanvi appearing for the plaintiff-respondent No.1 while opposing this writ petition strenuously contended that the Tribunal has rightly refused to take on record the irrelevant documents sought to be produced by the petitioner. Learned counsel referred to the documents so sought to be produced including a decision of this Court dated 20.01.1979 wherein a suit filed by the mother of the present plaintiff against the then tenant was decreed with reference to the bona fide requirement then existing and submitted that such document has no bearing or relevance to the questions involved in the 4 present case as the petitioner has filed the present petition in the year 2005 for the bona fide requirements of his son who was 21 years of age and was not even born on the date of said decision i.e., 21.01.1979. Learned counsel further submitted that the documents in relation to agriculture land and residential property purchased by the plaintiff or his wife or the family of the plaintiff too have got no relevance to the case of bona fide requirement as pleaded in the present case. Learned counsel for the plaintiff further pointed out that another eviction petition is also pending in relation to another tenant of the adjoining shop as filed by the present plaintiff for his bona fide requirement in relation to his other son, 25 years in age. Learned counsel pointed out that in the said matter too, the same documents were sought to be produced by the said tenant represented by the learned counsel who is appearing for the present tenant and when such prayer was refused and the matter was taken to this Court in CWP No.6176/2006, this Court precisely found that the said documents were not at all relevant in relation to the questions involved in the matter on the bona fide requirement. Learned counsel submitted that for the view already taken by this Court in relation to the same documents in the cognate matter, the present petition also deserves to be rejected. In relation to the submissions of the learned counsel for the petitioner that the 5 documents have been put in cross-examination and, therefore, their probative value may be left for determination by the Tribunal but the effect of the impugned orders may be annulled, learned counsel for the plaintiff submitted that it had been entirely unfair and improper on the part of the present petitioner to have put such documents in cross-examination that had already been refused to be taken on record by the Tribunal and were directed to be placed in part “D” of the record. Learned counsel submitted that merely by having such documents exhibited in the statement recorded before the Court Commissioner, the effect of the orders as already passed in the matter cannot be taken over and the petitioner is not entitled to derive any benefit out of such over-reaching questioning as carried out in the cross-examination of the plaintiff. Learned counsel for the petitioner rejoined essentially with the submissions that all the aspects may be decided by the Tribunal concerned but since it is a case of the plaintiff seeking eviction on his alleged reasonable and bona fide requirement, the petitioner is entitled to show want of reasonableness as well as want of bona fide on the part of the landlord by way of such documents. Learned counsel has also pointed out that even in the order dated 03.07.2007, when the propositions were submitted that the documents could be 6 put in the cross-examination, this Court left it open for the Tribunal to decide on such propositions in accordance with law. It has been pointed out by the learned counsel for the parties that the matter is fixed before the Tribunal today for final arguments. Having regard to the overall facts and the present peculiar circumstances of the case, and looking to the propositions as adopted in the impugned orders, and further having regard to the observations made by this Court in the order dated 03.07.2007 in CWP No.6176/2006, and yet further, looking to the statements of the plaintiff as placed for perusal, this Court is of the view that only with a few necessary observations but without expressing final opinion, it would be in the interest of justice that the entire matter is left for consideration of the learned Tribunal with all openness. The proposition as adopted in the order dated 05.09.2006 (Annex.15) assuming a blanket ban on production of document after filing of the rejoinder, of course, cannot be countenanced and then, it is noticed that both the parties did also make submissions on the relevancy of the documents sought to be produced but the learned Tribunal, while allowing the application filed by the plaintiff, did not make any comment in relation to the relevancy of the said documents. In the other 7 order dated 05.09.2006 (Annex.16), the learned Tribunal disallowed production of the documents merely with reference to the observations that they were related to agriculture land and residential land and, therefore, did not appear helpful in determining the questions involved in the matter. Then, the disputed documents though were placed in part “D” of the record, were indeed put in cross-examination to the plaintiff and he had answered in relation to the said documents and so also on the facts concerning and surrounding such documents. Further, it is also noticed that in respect of the very same documents, though in relation to the case of other tenant of the plaintiff, this Court has made observations in the order dated 03.07.2007 and such observations could be taken into consideration by the Tribunal to the extent and so far relevant for the purpose, but with reference to the record, of the present case. Yet further, the objections as sought be raised on behalf of the plaintiff about the procedure adopted by the petitioner in putting the disputed documents in cross- examination despite orders to the contrary already passed by the Tribunal can also not be said to be wholly unfounded at this stage and obviously this aspect of the matter is also required to be left open for consideration of the Tribunal particularly when it is noticed that even while disallowing the prayer as made for production of these documents in the said 8 order dated 03.07.2007, this Court did not express any opinion whether the permission for cross examination on the basis of such documents could be allowed or not but it was left open for the said petitioner to make such request to the Tribunal concerned and then, it was left open for the Tribunal to pass appropriate order in that regard. However, the position obtainable in the present case is that without seeking any such permission from the Tribunal, the present petitioner directly proceeded to put the said documents in cross examination of the plaintiff. All said and done, it has been informed that the evidence of the parties has been concluded in this case and the Tribunal is taking up the matter for final hearing. For and in the aforesaid circumstances and with the present state of record, looking to the requirements that there be just and effectual determination of the matter on merits after extending complete opportunity of hearing to both the parties without causing prejudice to either of them in relation to matters of procedure, and in order to avoid any delay in the matter, this Court is of opinion that interest of justice would be served by putting permanently in abeyance the effect of the orders dated 05.09.2006 (Annexures 15 and 16) as impugned in this writ petition but with observations that the application dated 21.03.2006 as moved by the plaintiff raising objections 9 against the production of the documents and the other applications as moved by the defendant seeking permission to produce the documents shall stand restored for re- consideration of the Tribunal with the final hearing of the eviction petition; and such hearing, in the changed circumstances, shall also be inclusive of the objections of the plaintiff regarding marking exhibits the said documents and so also on their relevancy and evidentiary value. Thus, while leaving the entire matter open for consideration of the learned Tribunal, it is directed that the Tribunal shall decide all such applications as well as the objections of either of the parties only at the time of final decision of said petition. It is made clear that the Tribunal would not be required to pass any separate order in that regard. With the observations and requirements aforesaid, this writ petition is allowed only to the limited extent indicated above in the peculiar circumstances of this case. There shall be no orders as to costs. (DINESH MAHESHWARI), J. s.soni 10