89 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. :: O R D E R :: S.B. CIVIL WRIT PETITION NO.481/2008 Mohan Lal Sharma Vs. The Appellate Rent Tribunal, Churu & Anr. DATE OF ORDER :: 02-04-2008 HON'BLE MR. MUNISHWAR NATH BHANDARI,J. Mr. Sandeep Shah, for the petitioner. This writ petition is directed against the order dated 5.12.2007. The writ petition is pressed only against the denial of an opportunity of cross examination of witnesses. The contention of the learned counsel for the petitioner-defendant is that though in the written statement, it was pleaded that the defendant be given chance to cross examine the witnesses to be produced by the plaintiff, yet no chance of cross examination was given. An application moved by the defendant before the Appellate Rent Tribunal for giving opportunity of cross examination is also rejected by the impugned order dated 5.12.2007. It is contended by the learned counsel for the petitioner that earlier suit application moved by 89 2 the plaintiff-non-petitioner for eviction was dismissed. However, plaintiff-non-petitioner thereafter preferred an appeal before the Appellate Tribunal and the matter was remanded back to the Rent Tribunal and thereupon the matter has again been decided. While deciding the matter on remand, Rent Tribunal decided the matter against the defendant- petitioner. The petitioner thereafter preferred an appeal and before the Appellate Rent Tribunal, he moved an application to permit him to cross examine the witnesses produced by the plaintiff before Rent Tribunal. The said application was then dismissed by the Appellate Rent Tribunal for the reasons given therein. Learned counsel for the petitioner submits that since a prayer was made in the written statement itself and thus, the Court was under an obligation to provide a chance to the petitioner to cross examine the witnesses produced by the plaintiff. I have considered the aforesaid submissions. Perusal of record shows that when the matter was first taken up by the Rent Tribunal, petitioner had not pressed his prayer for cross examination and the Rent Tribunal proceeded with the matter and decide it finally. Inasmuch as petitioner participated in the final argument without raising a grievance that pursuant to prayer made in the written statement, he has not been given chance to cross examine witnesses produced by the petitioner. The matter was decided by 89 3 the Rent Tribunal at the first instance in favour of the petitioner. In appeal preferred by the plaintiff-non- petitioner, matte was remanded back to the Rent Tribunal by the order dated 19.8.2006. Even on remand, when the matter was again taken up for consideration and final argument, petitioner or his counsel did not make any prayer before the court concerned that their prayer for cross examination of the witnesses be allowed or they may be permitted to cross examine the witnesses of the plaintiff and thereby petitioner even on second occasion also did not request the Rent Tribunal to decide the matter after taking note of the provisions of Section 21 of the Rent Control Act, 2001 which gives power to the Tribunal to permit cross examination. It is after filing of the appeal before Appellate Rent Tribunal that for the first time, petitioner came out with a prayer that they may be permitted to cross examine the witnesses produced by the plaintiff. A bare reading of Section 21 shows that such liberty is available when affidavit of the witness is produced and from whom cross examination is to be made by the other party. In the present matter, since petitioner had never made a prayer before the Rent Tribunal to cross examine the witnesses of the plaintiff; rather he proceeds with the matter and even 89 4 participated in the final hearing, therefore it becomes clear that petitioner has waived his right to cross examine the witnesses, more so when petitioner had an opportunity for making a request to the Rent Tribunal not only on one occasion but on two occasions. In view of that, once the right is waived, it cannot be revived at a stage when appeal is preferred and no new witnesses have been produced before the Appellate Rent Tribunal. In the facts and circumstances of the case, I do not find any error in the order passed by the Appellate Rent Tribunal. Learned counsel for the petitioner however made a reference of the judgments of this Court in the case of Aasandas Vs. State of Rajasthan & Ors. Reported in RLW 2005(2)Raj.1281 and Ramswaroop Vs. Charanjeet Singh & Ors., reported in WLC 2008(1)47. Perusal of both the judgments reveal that the facts of those cases are not akin to this case, inasmuch as in the present matter, Rent Tribunal has not denied an opportunity to cross examine the witnesses by the petitioner; rather the facts available on record shows that the petitioner himself has not pursued his right to cross examine the witnesses of the plaintiff; therefore the conduct of the petitioner shows that he has waived his right as the petitioner participated in the final hearing without pressing his right to cross 89 5 examine the witness not on one occasion but on two different occasions before the Rent Tribunal itself and no reason has been given as to why he could not cross examine the witness before Rent Tribunal hence in absence of sufficient reason, in appeal an opportunity for cross examination can not be demanded. In view of the above, I do not find any merit in the writ petition, hence the same is dismissed in limine. [Munishwar Nath Bhandari],J. Praveen