Madras High Court
A.Jalaluddin vs Bilal Abdullah on 8 March, 2023
CRP.No.504 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.03.2023
CORAM:
THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
CRP.No.504 of 2023 and
CMP.No.4124 of 2023
A.Jalaluddin ... Petitioner
Vs.
Bilal Abdullah ... Respondent
PRAYER: Civil Revision petition is filed under Article 227 of the Constitution
of India to set aside the order and decree dated 23.11.2022 passed by the
learned XII Small Causes Judge, Chennai in MP.No.2 of 2022 in
RLTOP.No.792 of 2021.
For Petitioner : Mr.J.T.Rajasurya
For Respondent : Mr.L.Rajasekar
for Mr.M.Kumar
ORDER
This civil revision petition has been filed to set aside the order and
decree dated 23.11.2022 passed by the learned XII Small Causes Judge,
Chennai in MP.No.2 of 2022 in RLTOP.No.792 of 2021.
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CRP.No.504 of 2023
2. The revision petitioner is the tenant in RLTOP.No.792 of 2021
pending before XII Small Causes Judge, Chennai. The respondent herein is the
landlord. He filed application for eviction on the ground that tenancy agreement
has not been registered. The tenant appeared through his counsel and also filed
objection stating that he is ready to register the tenancy agreement provided it
was on the acceptable terms. When the matter was pending before the Rent
Controller, the tenant filed MP.No.2 of 2022 praying to cross examine the
landlord and the said application was dismissed by the Rent Controller holding
that cross examination should not be permitted to establish the reason for non
entering into a written tenancy agreement. During the examination both parties
were admitted that they had not entered into a written tenancy agreement in
compliance of mandatory requirement under Section 4(2) of the TNRRRLT
Act. Further, in the present case either parties were not examined as witness in
the present case. The parties to the proceedings cannot seek as a matter of right
even for examination themselves as witness. Challenging the said finding, the
tenant filed the present petition.
3. Notice served to the caveator and respondent counsel also
appeared.
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CRP.No.504 of 2023
4. The learned counsel for the revision petitioner argues that the
tenant has every right to cross examine the landlord in order to prove his
bonafide and also the reason for non entering into lease agreement as claimed
by the landlord, because he fixed onerous condition with regard to enhanced
rent as well as the advance. Hence, he seeks permission of the court to cross
examine the landlord. But the learned Rent Controller without appreciating the
legal requirement made by the petitioner erroneously dismissed the application.
Hence, he prayed to set aside the said findings. To support his arguments, he
relied upon the judgment of this Court rendered in CRP.PD.No.2532 of 2021
and CRP.NPD.Nos.2372 & 2373 of 2021 dated 20.04.2022, wherein it i held
as follows:
8. Statements are broadly made as they should be, since
the statute has opted for expressions or phrases with immense
elasticity, conferring the Rent Court with enormous discretion.
Here the expression 'in the interest of justice' as a factor
provided to guide the need for allowing cross examination needs
to be balanced along with few other phrases. And, this
balancing act may have to be worked within the parameters
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CRP.No.504 of 2023
laid down by the Hon'ble Supreme Court in K.L. Tripathi's
case. The principles enunciated by the Supreme Court reads:
32. The basic concept is fair play in action administrative,
judicial or quasi-judicial. The concept of fair play in action must
depend upon the particular lis, if there be any, between the parties.
If the credibility of a person who has testified or give some
information is in doubt, or if the version or the statement of the
person who has testified, is, in dispute, right of cross-examination
must inevitable form part of fair play in action but where there is
no lis regarding the facts but certain explanations of the
circumstances there is no requirement of cross examination to be
fulfilled to justify fair play in action. When on the question of facts
there was no dispute, no real prejudice has been caused to a party
aggrieved by an order, by absence of any formal opportunity of
cross-examination per se does not invalidate or vitiate the decision
arrived at fairly.”
The following propositions can be deduced from the above
decision:
➢ Right of cross examination is inevitable when credibility
of a person who has testified or given information is in
doubt or the version or the statement of the person who
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CRP.No.504 of 2023
has testified is in dispute.
➢ Where there is no lis regarding the facts but only certain
explanation of circumstances then there is no
requirement of cross examination. Where there is no
dispute as to facts or the weight to be attached on
disputed facts but only an explanation of the acts,then
also absence of opportunity of cross examination does not
create any prejudice.
➢ On facts, if no real prejudice is caused to a party by
denying the opportunity of cross examination, even then
it would not vitiate the decision.
➢ A party who does not choose to controvert the veracity of
the evidence or testimony cannot subsequently claim that
there was no opportunity of crossexamination.
➢ Whether the principles of natural justice stands complied
would depend upon the facts and circumstances of each
particular case.
9.This Court does not intend to lay down any straight
jacket as that may interfere with the discretion of the Rent
Court. However, the present attempts is to provide certain
illustrative circumstances to the Rent Court to aid it in
managing its discretionary power in considering a plea for cross
examination on a plane of 'interest of justice' provided by the
statute. For ease of reference it is tabulated below:
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CRP.No.504 of 2023
Provisions Content of possible How far can be If cross
of law & dispute proved without examination will
Head of cross examination be required
Dispute
Can be proved by If a genuine dispute
documentary is raised regarding
evidence regarding the mode and
the compliance of manner of
pre-requisites for complaince.
invoking Sec.14(1)
Sec.14 14(1) If landlord If the dispute May not be
Deposit of refuse to receive pertains to rate of necessary.
Rent rent. Rent, that can be
proved by the Rent
Agreement
registered under
Sec.4
14(2) If a Tenant has It may relate both to If a bonafide dispute
a bonafide doubt the identity of the arises as to the
about the person to landlord and authenticity of the
whom rent has to be documentrary documents produced
paid evidence properly by the Landlord,
authenticated would cross examination
be sufficient. may be necessary.
But the Tribunal
must satsify before
hand that the
objection to the
authenticity of the
documents is
bonafide and that
the tenant has made
out a prima facie
case for suspecting
the authenticity of
such documentary
evidence so
produced by the
landlord.
If it relates to right Where a third party
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CRP.No.504 of 2023
Provisions Content of possible How far can be If cross
of law & dispute proved without examination will
Head of cross examination be required
Dispute
of the person who is claim arises, which
alleged to be the lead to a genuine
landlord, then the doubt about the
Rent Agreement right of the landlord,
registered in terms of and if the landlord
Sec.4 will take care. disputes it, then to
that extent tenant
may be permitted
to cross examine the
landlord. And, if the
tenant produce any
materials to project
his case of a third
party claim to rent,
then to that extent
landlord may be
cross examined.
Here again, the
Tribunal must
satisfy itself before
hand that the
materials produced
before it prima facie
is capable of tilting
the balance.
If the tenant takes up If there is any
a defence in terms of dispute raised by
Sec.15(4) and claims the landlord as to
deduction for the actual
maintenance, then expenditure incurred
the procedural by the tenant, and if
compliance for any of the
invoking it can be documentary
proved by the evidence provided to
documentary prove the actual
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CRP.No.504 of 2023
Provisions Content of possible How far can be If cross
of law & dispute proved without examination will
Head of cross examination be required
Dispute
evidence. expenditure prima
facie is found
suspcious, then to
that limited extent,
cross examination
may be necessary.
Sec. Eviction sought on Ordinarily not Cross examination
21(2)(a) ground of failure to necessary unless the may be necessary
enter into a tenacy case falls in category only if the case falls
agreement. Here, a (a) or (b) which in category (a) or
dispute can arise, cannot be (b) The Rent Court
(a) if the tenant be proved through should take care to
denies tenancy; or written document. see that cross
(b) The tenant examination seeking
setting up a tenancy to establish reasons
which the landlord for not entering into
denies. lease agreement etc
cannot be
entertained.
See : A.M Mansoor
Refai Vs Shafak
Hameed Thaika,
[C.R.P.2811 of
2021 order dt.
20.12.2021]
Sec. Eviction sought on Since rent agreement If the receipt
21(2)(b) ground of defaults in is registered, it produced by the
payment of rent. settles the quantum tenant is alleged to
of rent payable. If be a fabrication, or
receipt is not given if any correction or
for the entire rent interlineation is seen
paid, then the tenant made in the receipt
is required to invoke issued for payment
Sec.13. of rent, then cross
Both these can be examination to that
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CRP.No.504 of 2023
Provisions Content of possible How far can be If cross
of law & dispute proved without examination will
Head of cross examination be required
Dispute
proved by limited extent may
documentary be necessary.
evidence.
Sec. Eviction sought on If the tenant denies If the genuineness of
21(2)(c) ground of subletting and shows a consent any written consent
without landlord's letter, that may settle produced by the
written consent. the issue. tenant is denied by
the landlord, then
cross examination
may be necessary.
Sec. Misuse of the 'Misuse' has been Cross examination
21(2)(d) tenanted premises statuorily defined in may be necessary,
after landlord's a narrow sense to but the Rent Court
notice to stop mean encroachment may have to
misuse. of additional space appreciate the need
and also acts for it on the basis of
involving public facts involved in a
nuisance. The whole particular case.
facts required to be
established may not
be easily established
by documentary
evidence of parties.
Commissioner's
Report may be
necessary. And, it
leaves free space for
dispute on facts not
easily provable by
documents.
Sec. Repairs, Similar to the
21(2)(e) demolitions, circumstance in - do -
rebuilding with Sec.21(2)(d) above
additions or
alteration etc.,
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CRP.No.504 of 2023
Provisions Content of possible How far can be If cross
of law & dispute proved without examination will
Head of cross examination be required
Dispute
Sec. 21(2)(f) For alteration etc. Can be proved by Cross examination
for coverting the use documentary may be required if
of the building based evidence of there is any
on change of land competent authority ambiguity in
used by the ascertaining if a
competent authority. particular building
falls with any zone
whose land-use is
coverted by the
competent authority.
Sec. Requirement for With the Act getting Hardly any space is
21(2)(g) own use and rid of the need for available for cross
occupation. establishing bonfide examination. The
need for seeking Rent Court must
demolition and address the issue
reconstruction as with a mind of the
was required in the facts before it and if
earlier Act, a mere it throws any
declaration of peculiarity that may
landlord's intent is warrant a cross
sufficient. examination.
Sec. Tenant himself Can be proved by Cross examination
21(2)(h) issued a notice in the notice of the may be necessary if
writing to vacate and tenant. the tenant denies the
handover possession, very notice and
based on which the alleges fraud with
landlord contracts to prima facie material
sell the tenanted to support it.
property.
Sec. 24 Refund of It can be proved by Space available for
advance/default the documents. cross examination is
regarding the same. First, the Rent narrow. Again the
agreement registered Rent Court needs to
with the authority appreciate the facts
itself would provide before it.
the advance amount
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CRP.No.504 of 2023
Provisions Content of possible How far can be If cross
of law & dispute proved without examination will
Head of cross examination be required
Dispute
paid; And receipts
ought to be issued
for the rent paid;
And defaulted rent
may have to be
calculated based on
this. And adjustment
of any arrears of rent
in the advance
amount is merely a
matter of arithmatic.
Order directing It is proceeding of A need for cross
payment of rent and the Rent Court, examination may
other charges where there will be not arise since
Sec. 25 pending eviction an enquiry. It is quantum of rent will
proceedings under essentially an be notified in the
clauses (e) to (h) of ancillary proceeding Rental Agreement
sub-section of to eviction itself.
Section 21. proceedings.
Landlord proposing Can be substantially Readiness and
Sec.26 to construct proved by willingness of the
additional structure/ documentary landlord can be
improvements and evidence tested in cross
declares his examination. But
readiness and the Rent Court may
willingness to put up have to weigh it in
additional the context of
construction. sufficiency of
documentary
evidence made
available by the
landlord.
Landlord seeking to
severe vacant land
Sec.27 from the rest of the - do- - do-
premises for the
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CRP.No.504 of 2023
Provisions Content of possible How far can be If cross
of law & dispute proved without examination will
Head of cross examination be required
Dispute
purposes of putting
up new
constructions.
It is reiterated that what is provided hereinabove is merely
illustrative and not exhaustive.
10. Turning to specifics of the cases now before this
Court, there are two aspects: Firstly none of the applications
seeking leave of the Rent Court to cross examine were taken on
record. The Rent court may have considered this practice as
expedient, but it may not be appreciated. See: Selvaraj Vs
Koodankulam Nuclear Power Plant India Limited [(2021) 4
CTC 539]. The second aspect is on the merit of the orders
rejecting leave to the applicant/tenant to cross examine. Facts
of the cases and the grounds on which the Rent Court has
dismissed each of the applications have already been tabulated
in the opening paragraph, and they may be referred to.
5. He also relied upon the judgment in the case of Aasandas Vs.
State of Rajasthan and others reported in RLW 2005 (2) Rai 1281, wherein it
is held as follows:
15. It may further be noticed that Sub-section (3) of
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CRP.No.504 of 2023
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.
6. Based on the above proposition laid on above cases, the learned
counsel for the petitioner argues that the tenant is having every right to cross
examine the landlord and if not permitted, it is also amount to violation of
natural justice and he is also having valid ground to prove that why he has not
entered into tenancy agreement with the landlord.
7. But on seeing the facts of the case, RLTOP was filed by invoking
Section 21(2)(a) of Tamilnadu Regulation of Rights and Responsibilities of
Landlord and Tenants Act, 2017, which describes as follows:
“21(2)(a) – that the landlord and tenant have failed to
agree to the rent payable under Section 8”
Before filing RLTOP, the landlord issued notice calling upon the tenant on
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CRP.No.504 of 2023
02.11.2021 to execute the lease agreement with the new terms and conditions.
Though the said notice was received, but the tenant not given any reply to the
landlord. The learned counsel for the revision petitioner submits that the tenant
approached the landlord in person and requested and submitted his terms, but
the same was not accepted. Admittedly, no reply was given on the side of the
tenant. Thereafter, RLTOP was filed for eviction for non execution of the new
lease agreement as per the new amended Act.
8. Furthermore, as rightly pointed out by the learned counsel for the
landlord, for nearly about two years, admitted rent also not paid by the tenant
which comes around Rs.6,96,000/-. As per the notice issued by the landlord,
the present rent is Rs.14,500/- and the same is not denied by the tenant, but
there is no proof on the side of the tenant that he paid rent till date. So the
conduct of the tenant also shows that he is irregular in payment of rent and he
is not entitled to proceed with the matter as he is not approached with good
faith. Furthermore, the authorities relied upon by the petitioner do not apply to
the facts of the case for the reason that already he committed default in
payment of rent for the past two years and also not given any reply to the
notice issued by the landlord for execution of the new lease agreement, in such
circumstance, if tenant is permitted to cross-examine, the very object of the
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CRP.No.504 of 2023
Amended Act will become diluted.
9. Admittedly granting permission to cross examine the party is the
discretion of the court as per Section 36 sub-clause (2) of The Tamil Nadu
Regulation of Rights and Responsibilities of Landlords and Tenants Act, 2017,
which reads as follows:
36(2) In every case, before the Rent Court and the
Rent Tribunal, the evidence of a witness shall be given by
affidavit. However, the Rent Court and the 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, such witness can be produced and may order
attendance for examination or cross-examination of such a
witness.
10. As discussed above, the petitioner/ tenant not only defaulter of
rent but also not approached court with good faith. Hence, the authorities relied
by the petitioner not apply to the facts of this case. Therefore, the petition in
RLTOP No.792 of 2021 filed by invoking Section 21 (2) (a) of the said Act
does not require any cross examination of the witness for the aforesaid reason
and the same was rightly concluded by the trial judge, which needs no
interference by this Court. Hence, this civil revision petition is dismissed.
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CRP.No.504 of 2023
Consequently, connected miscellaneous petition is closed. There shall be no
order as to costs.
08.03.2023
Index :Yes/No
Internet : Yes/No
Speaking order/non-speaking order
lok
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CRP.No.504 of 2023
T.V.THAMILSELVI, J.
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CRP.No.504 of 2023
lok
To
XII Small Causes Judge,
Chennai
CRP.No.504 of 2023
08.03.2023
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