R.M. Lodha, J.

1. In the application under Section 9 of the Rajasthan Rent Control Act, 2001 (for short, Act of 2001) by the present respondents No. 1 to 8 (collectively for short, the landlord) against the appellant (for short, the tenant), the Rent Tribunal, Ajmer on 8.12.2004 passed an order of eviction against the tenant. The tenant challenged the order dated 8.12.2004 before the Appellate Rent Tribunal, Ajmer. However that appeal was dismissed on 21.9.2006. The tenant then filed a writ petition before this Court under Articles 226 and 227 of the Constitution of India challenging the order of the Rent Tribunal dated 8.12.2004 and the order of the Appellate Rent Tribunal, Ajmer dated 21.9.2006. The said writ petition came to be dismissed by the Single Judge on 18.12.2006 and hence the appeal by the tenant.

2. The landlord sought eviction of the tenant on the ground of reasonable and bonafide necessity, material alteration and change of user. According to the landlord the premises let out to the tenant were required for the purposes of the go-down since in the adjacent premises the landlord carries on business in the name of Amar Tent House. The landlord also alleged that the tenant without their permission, constructed a pacca latrine and bathroom on the chabotara outside the rented premises. The landlord also alleged that though the subject premises were let out to the tenant for residence, in breach thereof, he was started shoe shop.

Alongwith the application for eviction filed by the landlord under Section 9 of theof 2001, the landlord filed affidavits of charanjeet Singh (PW.1), Smt. Shanti Devi (PW. 2), Sohan Singh (PW. 3) and Gurudayal Singh (PW. 4). The landlord also relied upon eleven documents, details of which were given in paragraph 12 of the application.

3. The tenant traversed the landlords claim for eviction and denied that the subject premises were required by the landlord for their personal occupation. The tenant stated in the reply that earlier in the year 1997, the erstwhile owner filed a suit for eviction being Civil Suit No. 27/1997 on the ground of bonafide necessity which was dismissed as abated. The tenant denied that he altered the premises materially. According to him the latrine and bathroom had been in existence on the Chabootara in the tin-shed right from inception. The tenant denied that the premises were taken for residential purposes. According to him, premises were taken by him on rent for the purposes of residence as well as for his business and that he has been carrying on business in the rented premises right from inception.

4. On the basis of the pleadings of the parties, the Rent Tribunal struck the following issues:

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5. The tenant made an application under Section 21 of theof 2001 for permitting him to cross examine the deponents, PW 1 to PW 4 who had filed their affidavits in support of landlords claim for eviction. In the application it was stated that the affidavits are not truthful and to enable the Tribunal to know the correct facts, the cross-examination of the deponents was necessary.

6. The Rent Tribunal by its order dated 8.4.2004 permitted cross examination of the dependents only with regard to issue No. 5. No cross examination was permitted in respect of issues No. 1 to 4.

7. As noticed above, the Tribunal on 8.12.2004 passed an order of eviction which was confirmed in appeal by the Appellate Rent Tribunal on 21.9.2006.

8. The issue that needs to be considered in this appeal is whether the order of eviction passed by the Rent Tribunal and confirmed in appeal by the Appellate Rent Tribunal suffers from infraction of the principles of natural justice because of denial of cross-examination of the land-lords witnesses on issues No. 1 to 4 despite prayer to that effect was made by the tenant.

9. The Rajasthan Rent Tribunal Act, 2001 received the assent of the President on the 25th day of February, 2003. It provides for control of eviction from, letting of, and rents for, certain premises in the State of Rajasthan and matters incidental thereto. Inter-alia Section 9 of theof 2001 provides for eviction of tenants on the grounds set out therein. Section 9 reads thus:

9. Eviction of tenants.- Notwithstanding anything contained in any other law or contract but subject to other provisions of this Act, the Rent Tribunal shall not order eviction of tenant unless it is satisfied that,-

(a) the tenant has neither paid nor tendered the amount of rent due from him for four months:

Provided that the ground under this clause shall not be available to the landlord if he has not disclosed to the tenant his bank account number and name of the bank in the same municipal area, in the rent agreement or by a notice sent to him by registered post, acknowledgment due:

Provided further that no petition on the ground under this clause shall be filed unless the landlord has given a notice to the tenant by registered post, acknowledgment due, demanding arrears of rent and the tenant has not made payment of arrears of rent within a period of thirty days from the date of service of notice;

Explanation.- For the purposes of this clause, the rent shall be deemed to have been tendered when the same is remitted through money order to the landlord by properly addressing the same; or

(b) the tenant has willfully caused or permitted to be caused substantial damage to the premises; or

(c) the tenant has without written permission of the landlord made or permitted to be made any construction which has materially altered the premises or is likely to diminish the value thereof; or

(d) the tenant has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the premises or which is likely to affect adversely and substantially the landlords interest therein; or

(e) the tenant has assigned. sub-let or otherwise parted with the possession of the whole or part of the premises without the written permission of the landlord;

Explanation-If it is established that some person other than the tenants is in the exclusive possession of the whole or part of the premises, it shall be presumed that the tenant has either sub-let or parted with the possession of the whole or part of the premises, as the case may be; or,

(f) the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant; or

(g) the premises were let out for residential purposes but have been put to commercial use wholly or partially; or

(h) the premises were let out to the tenant for residential purposes by reason of the his being in the service or employment of the landlord and the tenant has ceased to be in such service or employment; or

(i) the premises are required reasonably and bonafide by the landlord for the use or occupation of himself or his family or for the use or occupation of any person for whose benefit the premises are held:

Provided that where decree of eviction from any premises is sought by the landlord under Clause (i), he shall be prohibited from letting out the same to any other person within a period of three years and in case the premises are let out, the tenant shall be entitled for restoration of possession on a petition moved by him before the Rent Tribunal and the Rent Tribunal shall dispose of such petition expeditiously and the procedure as laid down in Section 16 shall mutatis mutandis apply; or

(j) the tenant has built or acquired vacant possession of or has been allotted suitable premises adequate for his requirement; or

(k) the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the petition; or

(l) the landlord has been required by any authority under any law to abate the over crowding of the premises; or

(m) the landlord required the premises in order to carry out any building work,-

(i) at the instance of the State Government or a local authority in pursuance of an improvement scheme or development scheme; or

(ii) because the premises have become unsafe or unfit for human habitation.

10. Chapter-V of the makes provision for construction of Tribunals, procedure for revision of rent and eviction, appeal and execution. Section 15 which provides for procedure for eviction of tenant reads thus:

15. Procedure for eviction of tenant.-(1) The land-lord or any person claiming possession shall file a petition before the Rent Tribunal and such petition shall be accompanied by affidavits and documents, if any, upon which land-lord or person claiming possession wants to rely.

(2) The Rent Tribunal, upon filing of petition under Sub-section (1), shall issue notice accompanied by copies of petition, affidavit and documents, if any, fixing a date not later than thirty days from the date of issue of notice requiring the tenant to submit reply accompanied by affidavits and documents, if any, on which the tenant relies. The service of notice shall be effected through process server of the Tribunal or Civil Court as well as by registered post, acknowledgment due. Notice duly served by any of these methods shall be treated as sufficient service.

(3) The tenant may submit his reply, affidavits and documents after serving the copies of the same to the petitioner, within a period not exceeding forty five days from the date of service of notice.

(4) The petitioner may thereafter file rejoinder if any, after serving copy to the opposite party, within a period of thirty days from the date of service of reply.

(5) The Rent Tribunal shall thereafter fix a date of hearing which shall not be later than one hundred and eighty days from the date of service of notice on the tenant. The petition shall be disposed of within a period of two hundred and forty days from the date of service of notice on the tenant.

(6) The Rent Tribunal during the course of such hearing may hold such summary inquiry as it deems necessary and decide the petition. The Rent Tribunal may also make efforts for conciliation or settlement of dispute between the parties.

(7) Where the Rent Tribunal decides the petition in favour of the landlord, it shall issue a certificate for recovery of possession from the tenant.

(8) The certificate issued under Sub-section (7) shall not be executable for a period of three months from the date of decision:

[Provided that in case of premises let out for commercial use such certificate shall not be executable for a period of six months from the date of decision.]

11. Section 19 makes provision for Appellate Rent Tribunal and the appeals before the Appellate Tribunal and the limitation for filing such appeals. Procedure and powers of the Rent Tribunal and the Appellate Tribunal are provided in Section 21 which reads thus:

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 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 respondents shall be similarly distinctly marked by him as Ex-A1, Ex. A2 and so on in red ink and in the affidavits the documents 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 principle 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 adjournment without written application and recording the reasons therefore 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).

12. It is true that the Rent Tribunal or for that matter Appellate Rent Tribunal are not bound by the procedure laid down by the Code of Civil Procedure, 1908. This is specifically provided in Section 21(3). However the procedure followed by the Rent Tribunal in every case before it has to be in conformity with the principle of natural justice. Though Sub-section (1) of Section 21 provides that the evidence of a witness before the Tribunal (original as well as appellate) shall be given by affidavit but it makes it clear that if in the opinion of the Tribunal and in the interest of justice, the witness needs to be called for examination or cross-examination and that such witness may be produced before it, the Tribunal may order such witness to be produced before it for examination or cross examination. The expression, "may order attendance for examination or cross- examination of such a witness" though reflects that it is not imperative for the Tribunal to order attendance for cross- examination of a witness in each and every case but looking to the power being exercised by the Rent Tribunal and the nature of the order that may be passed by it including the order of eviction, ordinarily, unless strong reasons are shown by the other side otherwise, the permission for cross-examination must follow as it advances the cause of justice. It cannot be overlooked that the Rent Tribunal constituted under the of 2001 is a substitute of the Civil Court for deciding the dispute/s between the landlord and the tenant for eviction, rent and other incidental matters. Though the procedure is summary and that the Tribunal is not bound by the procedure prescribed in the Code of Civil Procedure, it needs no emphasis that such procedure must be guided by the principles of natural justice. Actually this is provided in Section 21 itself. How does the Tribunal get convinced about the veracity of the affidavit filed by a party in support of his case unless such witness is allowed to be cross- examined by the other side. After all, the Tribunal is supposed to record a finding of fact on due appreciation of the evidence having come before it. The deposition of a witnesses by way of affidavit without cross-examination, ordinarily, may not enable the Tribunal to properly and adequately decide about truthfulness of the deposition. The discretion given to the Rent Tribunal or for that matter to the Appellate Rent Tribunal in calling a witness for examination or cross-examination under Section 21(1) of theof 2001, is a judicial discretion and has to be founded on good reason. After all, cross-examination is a valuable right, in the context of principles of natural justice, given to a party against whom a particular evidence is set up and if prayed for, must not be denied ordinarily unless such prayer is found to have been made to unnecessarily delay the proceedings or is seen to be actuated with motive.

13. In the case of Aasandas v. State of Rajasthan and Ors. : RLW 2005 (2) Raj. 1281 though there was challenge to the vires of Section 21 of theof 2001, the Division Bench did not deem it necessary to enter into that controversy but with regard to the procedure envisaged in Section 21 in paragraphs 13, 14 and 15 held thus:

(13). On the pleadings of the parties which we have noticed above. This issue before the Rent Tribunal was one about the requirement of the applicant of the suit premises for his own personal use. What was the necessity for which the eviction was sought and the defence taken by the respondents were also before the Tribunal. It is not the requirement of the law before a witness to cross-examine can be called that a questionnaire should be sent to the Court in advance disclosing what questions are to be asked to the witnesses so that witness can be tutored in advance. It is always for the Court to consider on the basis of pleadings and issues framed; what are the essentials to be proved and that is to be kept in mind by the Court while permitting the examination and cross-examination of the witnesses and not to deviate from this basic requirement of placing the material before it. Instead of discharging its obligations to have a control over its procedure and about what is relevant or irrelevant, it cannot scuttle a fair trial to the litigants of getting into the truth about the allegations, but finding a short cut by not permitting cross-examination of witnesses in most cases as a matter of course where the dispute relates to the questions of fact and findings depends on testimony of statement on oath of either parties, results breach of principle of natural justice which is otherwise required to be followed by any Tribunal entrusted with the task of dispensation of justice even in the absence of any specific rule.

(14). The Rent Control Act does not prohibit adherence to the basic principles of natural justice keeping in view of the controversy which the Court has to decide. The Rent Tribunals taking the view that as a matter of course cross-examination is not to be permitted, without considering the controversy which is required to be decided and the materials other than affidavit available on record which can help in assessing the necessity of cross-examination of witnesses, in our opinion, cannot be said to be right in their approach. It is the obligation of the Rent Tribunal while considering the application for cross-examination to consider pleadings, the facts to be proved by the other party, besides the affidavit, the other material which can help in assessing the requirement of leading evidence and then to decide whether in a given case, permission to cross-examination will be refused. The refusal may be in rare cases. Ordinarily, where the question of facts depends on oral testimony, the cross- examination of deponent has to be permitted when demanded.

(15). It may further be noticed that Sub-section (3) of Section 21, on the one hand clearly provides that the Rent Tribunal and the Appellate Rent Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but on the other hand, it clearly ordains that they shall be guided by the principle of natural justice and subject to other provisions of this Act. It inheres into it that ordinarily, statement of any witness ought not to be accepted unless he being cross-examined, if such cross-examination is demanded.

14. The Division Bench emphasised that ordinarily where the question of facts depends on oral testimony, the cross- examination of deponent has to be permitted when demanded. The observation that we made above are in line with the view of the Division Bench in the case of Aasandas.

15. The counsel for the respondents, however, Invited our attention to another Division Bench judgment of this Court in the case of Mahmud Khan v. State of Rajasthan and Ors. 2006 (1) RCJ 248, In the case of Mahmud Khan the Division Bench in paragraph 5 quoted part of paragraph 10 of the decision in Aasandas in holding that the view of the Tribunal before them did not require any interference.

16. As a matter of fact in paragraph 10, in the case of Aasandas, the Division Bench reproduced the reasoning of the Tribunal in rejecting the prayer for cross-examination and then in paragraph 11 commented that the reasoning of the Tribunal was unsustainable. This is what was observed in paragraphs 10 and 11 in Aasandas case.

(10). The Appellate Court while accepting that the application for cross-examination ought to have been decided, has again rejected the prayer on the ground that under the provisions of the Rent Control Act, 2001 the expression "where it appears to it that it is necessary in the interest of justice to call a witness for examination or cross-examination" given out that only where it is felt necessary to call a witness for examination or cross-examination, such witnesses can be produced and that requirement of calling a witness in the witness box is not necessary and since in the present case, the applicant has not given the details on what aspects he wants to cross-examine the non-applicant, it cannot be considered to be in the interest of justice to permit cross-examination.

(11). This approach, in our opinion, is unable to sustain itself.

17. The Division Bench in the case of Mahmud Khan has not dissented with the earlier decision of the Division Bench in Aasandas. Being a coordinate Bench, the Division Bench in the case of Mahmud Khan was bound by the earlier Division Bench decision in Aasandas. Had the Division Bench doubted the correctness of the decision in the case of Aasandas, the Bench would have referred the matter to the larger Bench. Thus, in the case of Mahmud Khan, the observations in paragraph 6 of the report are confined to the fact situation obtaining therein.

18. We have already indicated above that the proceedings before the Tribunal (original and appellate) are not governed by the Code of Civil Procedure and to that extent the provisions of the Code of Civil Procedure are not applicable to such proceeding. However, the procedure before the said Tribunal has to be in conformity and in consonance with the principles of natural justice. Though cross-examination of the witnesses of the opposite party cannot be claimed as a matter of right, yet such right being very valuable right since the order of the Tribunal may be seriously prejudicial, upon the application made by a party for cross-examination of the witnesses of the other party, unless the circumstances justify denial thereof in the interest of justice, ordinarily such prayer deserves to be granted.

19. In the present case, the order passed by the Rent Tribunal on 8.4.2004 declining the tenants prayer for cross-examination of the landlords witnesses on issues No. 1 to 4 does not record any reason as to why grant of such permission was not in the interest of justice. The fact that the Tribunal granted cross- examination of the landlords witnesses on issue No. 5 concerning Ex. 1 to Ex. 7 would show that the application made by the tenant under Section 21 of theof 2001 was not found vague and unspecific. Else even that prayer would not have been granted.

20. For the reasons that we have indicated above, we are of the view that the Tribunal erred in exercise of its jurisdiction in declining to grant prayer for cross-examination of the affiants (PW.1 to PW. 4) who had filed their affidavits in support of the landlords case pertaining to issues No. 1 to 4. The appellate tribunal failed to correct error of jurisdiction while hearing the appeal. As a matter of fact the case for interference in the said orders was made out by the tenant before the Single Judge but the Single Judge also erred in dismissing the writ petition.

21. Before we close we may notice the submission of Mr. J.P. Goyal, the counsel Mr. the respondents No. 1 to 8 that this special appeal is not maintainable since the Single Judge refused to exercise his jurisdiction of prohibitory writs under Article 227. This argument overlooks the position that the appellant has invoked Articles 226 as well as 227 in challenging the orders of the Rent Tribunal and the Appellate Rent Tribunal. In the impugned order, the Single Judge has not recorded anything that the writ petition is being dismissed in exercise of the powers under Article 227 of the Constitution of India. Since Article 226 of the Constitution of India was invoked by the petitioner- appellant, we are of the view that this special appeal is maintainable.

22. In what we have said above the special appeal is allowed. The orders of the Rent Tribunal, Ajmer dated 8.4.2004 and 8.12.2004; the order of the Appellate Rent Tribunal dated 21.9.2006 and the order of the Single Judge dated 18.12.2006 are quashed and set-aside. The application (38/2004; Charanjeet Singh and Ors. v. Ramswaroop) is restored to the file of the Rent Tribunal, Ajmer for fresh consideration of the matter in accordance with law and the observations made hereinabove after giving an opportunity of cross-examination of the deponents (PW. 1 to PW. 4) also in respect of issues No. 1 to 4.

The parties are directed to appear before the Rent Tribunal, Ajmer on 20th August, 2007. We direct the Rent Tribunal, Ajmer to decide the aforesaid application as expeditiously as possible and in no case later than three months from the date of appearance of the parties. Parties shall bear their own costs.