Harman Preet Kaur Hansra vs Gurcharan Singh

Mahesh Grover, J.—The petitioner impugns the orders dated 12.03.2013 and 15.05.2013. The petitioner is a landlady, who has initiated proceedings under Section 13 of the East Punjab Urban Rent Restriction Act (Act III of 1949) seeking eviction of the respondents on the ground of non-payment of rent; subletting and bona fide necessity.

On 05.10.2007, the issues in this case were framed and evidence was led by way of filing an affidavit on 31.05.2010 by RW 1. His examination-in-chief was recorded on 27.07.2012 and the matter was adjourned to 26.02.2013 for cross-examination of the witness, which was conducted on the said date partly. The matter was adjourned to 08.03.2013. On that date, according to the petitioner, the proceedings could not be conducted before the Court Commissioner on account of the fact that the file was not traceable. Thereafter, on 12.03.2013, the Court Commissioner recorded in its proceedings that for cross-examination opportunity given to the petitioner was not availed of by him and, thus, treated it as Nil.

The matter was then adjourned to 13.03.2013 for recording of the remaining evidence. This is the date fixed by the Court for receiving the report of the Court Commissioner on the evidence recorded by him. The petitioner then moved an application for recalling of the order dated 12.03.2013 by which cross-examination of RW 1 Manwinder Singh was treated as Nil. The learned Rent Controller has declined this prayer primarily on the ground that it had no power to review its own order and partially on the ground that the case is an old case requiring immediate disposal and also for the reason that the Court Commissioner had stated that on 12.03.2013, he had waited for the petitioner up to 2.00 P.M. for effecting cross-examination of the witness.

Learned counsel for the petitioner contends that on 08.03.2013, no order was passed by the Commissioner, adjourning the proceedings to 12.03.2013 and, thus, he was not aware of the proceedings and this is the reason which prevented him from conducting the cross-examination of the said witness. He has placed on record an application filed by him for obtaining the orders of Commissioner dated 08.03.2013 but which was returned with a report that no such order was on file. Copy of application for obtaining copy of the order, even though was not placed on record but shown today to the Court, is taken on record as mark ''A''.

It is, thus, contended before this Court that serious prejudice has been caused to the petitioner on account of these facts, which have prevented her from effecting the cross-examination of the witness.

The learned counsel for the respondents on the other hand, contends that the petitioner lacks bona fides and that she has levelled wild allegation against the Court Commissioner, who is an Officer of the Court and besides this plea was taken by the petitioner before the learned District Judge on the administrative side who has opined that the plea of the petitioner is erroneous.

I have heard learned counsel for the parties and have perused the impugned orders. In so far as the reasoning adopted by the learned Rent Controller regarding the power of review is concerned, I am of the view that it has fallen in error for the reason that strict rules of the Code of Civil Procedure are not applicable to the Rent Act.

Be that as it may, in such like matters, the power of recalling of an order should not be subjected to technicalities, if it enhances cause of substantial justice. The order dated 26.02.2013 has been extracted in the proceedings, where the Commissioner had noted that in case, the cross-examination of the said witness (RW 1) is not concluded on 08.03.2013, the cross-examination shall be deemed to be treated as Nil. On 08.03.2013, no order was passed as the file was untraceable. In these given set of circumstances, which are not disputed till at least 08.03.2013 even by the learned counsel for the respondent, except to say that the proceedings were prevented on account of the fact that the lawyers were abstaining from work and not on account of the fact that the file was untraceable. Even if this be so, the fact remains that on 08.03.2013, no order was passed by the Commissioner. To allay any apprehension, it would have been just and appropriate for the Commissioner to have observed that the proceedings cannot be held for the reason that lawyers are abstaining from work, if the plea of the respondents is to be accepted that this was the reason to keep the proceedings in abeyance. Rather there is material to indicate that no order existed on 08.03.2013.

This clearly led to some ambiguity regarding the next date of hearing and whether it was communicated to the petitioner or not. These observations of the Court should not in any way be construed to be an expression regarding the lack of confidence in the Court Commissioner and neither it is intended to grant authenticity to the allegations levelled by the petitioner against the Commissioner. Suffice it so say, the Court is convinced that there has been certain slip up between the two proceedings conducted on 08.03.2013 and 12.03.2013 which have further resulted in a situation prejudicial to the interest of the petitioner.

To settle equities and to subserve the cause of justice, I am of the opinion that the petitioner be given one opportunity to cross-examine the said witness subject to payment of Rs. 5,000/- which are imposed only by keeping in view the fact that it is a case which has been hanging fire for almost 7 years and it is expected that the petitioner should have been more vigilant in this regard. The cost shall be paid as compensation to the respondent. Accordingly, the impugned orders dated 12.03.2013 and 15.05.2013 are hereby set-aside. The petitioner shall be given one more opportunity to cross-examine the witness subject to deposit of cost of Rs. 5000/- as stated above.

Petition stands allowed in the aforesaid terms.