M/S New Agarwal Toys Emporium v. Keshari Nandan Pratap Sahi vide order dated

3. Learned counsel for the petitioners submitted that in view of the provisions contained under Section 33(3) of the Act, 2021 the application for cross examination of the witness filed on behalf of the petitioners/ tenants cannot be rejected without assigning proper reason. He further submitted that Rule 16 of the U.P. Regulation of Urban Premises Tenancy Rule, 2021 also provides manner of recording evidence before the rent authority, but impugned judgments have been passed in arbitrary manner rejecting the petitioners' application for cross examination of the witness as well as the appeal filed by the petitioners. He further submitted that courts below have failed to examine that the suit has been filed on the ground of default in payment of rent which falls in the category of small causes suit as such cross examination of the witnesses is necessary. He further submitted that impugned order should be set aside and petitioners' application for cross examine of the witness of land lord should be allowed.

4. I have considered the arguments advanced by learned counsel for the petitioners and perused the record.

5. There is no dispute about the fact that proceeding initiated by respondent / land lord under Section 21 (1) of the Act of 2021 is pending before rent authority and application for cross examination of the witness filed on behalf of the petitioners/ tenants has been rejected by rent authority. There is also no dispute about the fact that appeal filed by petitioners under section 35 of the Act of 2021 filed on behalf of the petitioners has been dismissed by appellate Tribunal / Additional District Judge Court No.9 Moradabad.

6. In order to appreciate the controversy involved in the matter, perusal of Section 33 (3) of U.P. Regulation of Urban Premises Tenancy Act, 2021 shall be relevant:- "Section 33 (3) of U.P. Regulation of Urban Premises Tenancy Act, 2021- (3) In every application or appeal, before the Rent Authority or Rent Tribunal, as the case may be, the evidence of a witness shall be given by affidavit: Provided that the Rent Authority or Rent Tribunal, as the case may be, may where it appears to it that it is necessary in the interest of justice to call a witness for examination or cross- examination, order attendance of such witness to be present for examination or cross-examination."

7. The perusal of sub Section (3) of Section 33 of the Act of 2021 fully demonstrate that rent authority or rent tribunal may where it appears to it that it is necessary in the interest of justice to call a witness for examination or cross-examination, order attendance of such witness to be present for examination or cross-examination. They can do so, but it is not mandatory that application for cross examination should be allowed in each and every case as in every application or appeal before rent authority or tribunal the evidence of a witness shall be given by affidavit.

8. In the instant mater application for cross examination filed on behalf of the petitioners before rent authority has been rejected permitting the petitioner to file documentary evidence in support of his case, as such the order impugned does not suffer from any illegality in view of the provisions contained under section 33 (3) of the Act, of 2021.

9. This court in the matter under Article 227 No.8052/2024 M/S New Agarwal Toys Emporium vs. Keshari Nandan Pratap Sahi vide order dated 29.07.2024 has held that in view of the proviso contained in sub-section (3) of section 33 of the Act of 2021, the power to cross examine the witness has to be exercised sparingly and in rarest of rare cases. Paragraph Nos.8,9,10, and 11 of the order of this Court dated 29.07.2024 passed in M/S New Agrawal Toys Emporium (Supra) is relevant for perusal which is as under:- "8. Be that as it may, perusal of the application of the petitioner, extracted above, discloses that the application does not disclose reason why he did not file any application seeking permission to cross examine Kesari Nandan Pratap Shahi before the Rent Authority. After the judgement has been delivered by the rent authority, the petitioner cannot be allowed to cure lacuna in his case by entertaining such an application. Though proviso to sub- section (3) of Section 33 of the Act No.16 of 2021 envisages that Rent Authority or Rent Tribunal may call for witness for cross examination where it appears to it that examination or cross examination of such witness is necessary in the interest of justice, but it is evident from the plain reading of proviso to sub- section (3) of Section 33 of the Act that this power has to be exercised sparingly and in rarest of rare cases where a case has been made out by the party that examination or cross examination is necessary for the just and appropriate decision of the case.

9. In the present case, perusal of the application does not disclose that the petitioner has made out any such case which may necessitate the Rent Tribunal to invoke power conferred upon it under proviso to sub-section (3) of Section 33 of the U.P. Act No.16 of 2021.

10. So far as the judgement relied upon by the learned counsel for the petitioner is concerned, the said judgement is not applicable in the facts of the present case as in the said case the Apex Court was considering the scope of order 41 Rule 27 of C.P.C. and not the power conferred upon the Rent Authority or Rent Tribunal under proviso to sub-section (3) of Section 33 of the Act No.16 of 2021"

11. Thus, for the reasons given above, the writ petition lacks merit, and is accordingly dismissed with no order as to costs."

10. Considering the entire facts and circumstances of the case as well as provisions contained under Section 33 (3) of the Act, 2021 and the ratio of law laid down by this Court in M/S New Agarwal Toys Emporium (Supra), no interference is required against the impugned orders passed by rent authority/ rent tribunal under the Act of 2021.

11. The Misc. petition under Article 227 of the Constitution of India, is dismissed accordingly. Order Date :- 28.7.2025 PS* PRITI SHARMA PRITI SHARMA High Court of Judicature at Allahabad High Court of Judicature at Allahabad

3. Learned counsel for the petitioners submitted that in view of the provisions contained under Section 33(3) of the Act, 2021 the application for cross examination of the witness filed on behalf of the petitioners/ tenants cannot be rejected without assigning proper reason. He further submitted that Rule 16 of the U.P. Regulation of Urban Premises Tenancy Rule, 2021 also provides manner of recording evidence before the rent authority, but impugned judgments have been passed in arbitrary manner rejecting the petitioners' application for cross examination of the witness as well as the appeal filed by the petitioners. He further submitted that courts below have failed to examine that the suit has been filed on the ground of default in payment of rent which falls in the category of small causes suit as such cross examination of the witnesses is necessary. He further submitted that impugned order should be set aside and petitioners' application for cross examine of the witness of land lord should be allowed.

4. I have considered the arguments advanced by learned counsel for the petitioners and perused the record.

5. There is no dispute about the fact that proceeding initiated by respondent / land lord under Section 21 (1) of the Act of 2021 is pending before rent authority and application for cross examination of the witness filed on behalf of the petitioners/ tenants has been rejected by rent authority. There is also no dispute about the fact that appeal filed by petitioners under section 35 of the Act of 2021 filed on behalf of the petitioners has been dismissed by appellate Tribunal / Additional District Judge Court No.9 Moradabad.

6. In order to appreciate the controversy involved in the matter, perusal of Section 33 (3) of U.P. Regulation of Urban Premises Tenancy Act, 2021 shall be relevant:- "Section 33 (3) of U.P. Regulation of Urban Premises Tenancy Act, 2021- (3) In every application or appeal, before the Rent Authority or Rent Tribunal, as the case may be, the evidence of a witness shall be given by affidavit: Provided that the Rent Authority or Rent Tribunal, as the case may be, may where it appears to it that it is necessary in the interest of justice to call a witness for examination or cross- examination, order attendance of such witness to be present for examination or cross-examination."

7. The perusal of sub Section (3) of Section 33 of the Act of 2021 fully demonstrate that rent authority or rent tribunal may where it appears to it that it is necessary in the interest of justice to call a witness for examination or cross-examination, order attendance of such witness to be present for examination or cross-examination. They can do so, but it is not mandatory that application for cross examination should be allowed in each and every case as in every application or appeal before rent authority or tribunal the evidence of a witness shall be given by affidavit.

8. In the instant mater application for cross examination filed on behalf of the petitioners before rent authority has been rejected permitting the petitioner to file documentary evidence in support of his case, as such the order impugned does not suffer from any illegality in view of the provisions contained under section 33 (3) of the Act, of 2021.

9. This court in the matter under Article 227 No.8052/2024 M/S New Agarwal Toys Emporium vs. Keshari Nandan Pratap Sahi vide order dated 29.07.2024 has held that in view of the proviso contained in sub-section (3) of section 33 of the Act of 2021, the power to cross examine the witness has to be exercised sparingly and in rarest of rare cases. Paragraph Nos.8,9,10, and 11 of the order of this Court dated 29.07.2024 passed in M/S New Agrawal Toys Emporium (Supra) is relevant for perusal which is as under:- "8. Be that as it may, perusal of the application of the petitioner, extracted above, discloses that the application does not disclose reason why he did not file any application seeking permission to cross examine Kesari Nandan Pratap Shahi before the Rent Authority. After the judgement has been delivered by the rent authority, the petitioner cannot be allowed to cure lacuna in his case by entertaining such an application. Though proviso to sub- section (3) of Section 33 of the Act No.16 of 2021 envisages that Rent Authority or Rent Tribunal may call for witness for cross examination where it appears to it that examination or cross examination of such witness is necessary in the interest of justice, but it is evident from the plain reading of proviso to sub- section (3) of Section 33 of the Act that this power has to be exercised sparingly and in rarest of rare cases where a case has been made out by the party that examination or cross examination is necessary for the just and appropriate decision of the case.

9. In the present case, perusal of the application does not disclose that the petitioner has made out any such case which may necessitate the Rent Tribunal to invoke power conferred upon it under proviso to sub-section (3) of Section 33 of the U.P. Act No.16 of 2021.

10. So far as the judgement relied upon by the learned counsel for the petitioner is concerned, the said judgement is not applicable in the facts of the present case as in the said case the Apex Court was considering the scope of order 41 Rule 27 of C.P.C. and not the power conferred upon the Rent Authority or Rent Tribunal under proviso to sub-section (3) of Section 33 of the Act No.16 of 2021"

11. Thus, for the reasons given above, the writ petition lacks merit, and is accordingly dismissed with no order as to costs."

10. Considering the entire facts and circumstances of the case as well as provisions contained under Section 33 (3) of the Act, 2021 and the ratio of law laid down by this Court in M/S New Agarwal Toys Emporium (Supra), no interference is required against the impugned orders passed by rent authority/ rent tribunal under the Act of 2021.

11. The Misc. petition under Article 227 of the Constitution of India, is dismissed accordingly. Order Date :- 28.7.2025 PS* PRITI SHARMA PRITI SHARMA High Court of Judicature at Allahabad High Court of Judicature at Allahabad