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1978 DIGILAW 736 (ALL)

Brij Lal v. Chiranji Lal

1978-07-31

K.C.AGRAWAL

body1978
JUDGMENT K. C. Agrawal, J. :- This writ petition is directed against the judgment of the District Judge, Deoria, dated July 27 1977, dismissing the appeal filed by the petitioner under section 22 of U.P. Act No. XIII of 1972. 2. The petitioner was a tenant of shop situated in Mohalla Tahtheri Gali, Nai Bazar. Deoria. Chiranji Lal, who is the landlord of the said shop, filed an application under section 21 of U P. Act No XIII of 1972 for release of the same on the ground that he required the said shop for his son who intended to start a retail cloth business in the said premises. The application was contested by the petitioner. He denied that the premises was bona fide required by the landlord. He pleaded that the petitioner already had accommodation available to him where he could ask his son to start the business. It was also asserted on behalf of the tenant that the son of Chiranji Lal, respondent No. 1, was already carrying on cement business and he was not required to be set up on any new business. 3. The Prescribed Authority allowed the application, against which the petitioner went in appeal to the District Judge. The appeal was dismissed. Hence, this writ. 4. The first contention raised by the learned counsel for the petitioner was that as the petitioner was not given an opportunity to adduce evidence, the Prescribed Authority as well as the District Judge committed an error in allowing the application filed by the Respondent No. 1. It appears that Chiranji Lal as well as Brij Lal filed their own affidavits and the affidavits of some of the witness on their behalf. On 28-3-1977 both the parties filed applications for summoning the witnesses of each other for cross-examination. These applications were allowed and parties were directed to bring their witnesses in Court for cross- examination on 30-5-1977. On 30-5-1977, Chiranji Lal produced himself as a witness, but Brij Lal, the petitioner, neither entered into the witness box himself nor produced any witness on his behalf. A prayer for adjournment was made on behalf of the petitioner to enable him to produce his witnesses. The Prescribed Authority, however, rejected the said application, and allowed the application under section 21 of the Act on the aforesaid date. 5. A prayer for adjournment was made on behalf of the petitioner to enable him to produce his witnesses. The Prescribed Authority, however, rejected the said application, and allowed the application under section 21 of the Act on the aforesaid date. 5. The argument advanced by the learned counsel for the petitioner was that on 30-5-1977. When the case was taken up by the Prescribed Authority a request was made by Sri N. K. Misra, who was the counsel appearing for the petitioner before the Prescribed Authority, to adjourn the case as the witnesses of the petitioner had not come on the said date. The Prescribed Authority, however, insisted that the petitioner as well as Sri N. K. Misra may cross-examination the respondent No. 1 and that he would fix another date for cross-examination of the witnesses who may be produced by the petitioner on that date. After the cross-examination of Chiranji Lal was over, the Prescribed Authority refused to adjourn the case to enable the petitioner to produced his witnesses. 6. It appears from a perusal of the order sheet as well as the judgment of the Prescribed Authority that he did not consider the affidavits filed by the petitioner himself and his witnesses on the ground that as the petitioner had not produced himself and these witnesses for cross examination, their evidence could not be looked into. The observation made by the Prescribed Authority in this respect were as follows : "Tenant on the other side did not produce his witness and his own self for cross-examination for their affidavits. The landlord has been allowed to cross-examine and the tenant was directed to bring witness, including himself. Thus, there is no counter, case from the side of the sitting tenant." 7. In this view of the matter, be consider the case of the respondent No. 1, alone, and having found that the need of the respondent No. 1 was made out, allowed the application. 8. In appeal, an argument was advance on behalf of the petitioner that as the petitioner was not granted opportunity to produce his witnesses, the Prescribed Authority committed an error in allowing the application without considering the case of the petitioner. The District Judge did not accept the argument of the petitioner on the ground that at least the petitioner, who was present in the Court, should have produced himself. The District Judge did not accept the argument of the petitioner on the ground that at least the petitioner, who was present in the Court, should have produced himself. As the petitioner did not produce himself, the grievance of the petitioner did not appear to be justified. 9. After hearing counsel for the parties, I am unable to uphold the judgment of the District Judge. The controversy which was raised before him was whether the Prescribed Authority was justified in proceeding with the case despite the fact that he had assured the petitioner's counsel that they could cross-examine the respondent No. 1, and that the case would thereafter be adjourned to enable the petitioner to produce himself and his witnesses. The affidavit filed by Sri N. K. Misra, who appeared for the petitioner before the Prescribed Authority and District Judge established that the Prescribed Authority had assured the petitioner that the case would be adjourned for that purpose. In this background the Prescribed Authority was not justified in not adjourning the case and in deciding the application filed by respondent No. 1 on 30-5-1977 itself. The learned District Judge also did not properly appreciate the controversy. Since the petitioner knew that the hearing of the case was going to be adjourned, he did not appear in the witness box. Assuming that the petitioner ought to have appeared in the witness box on the aforesaid date and that he was guilty of not having done so, the question still arises, were the District Judge and the Prescribed Authority justified in not looking into the evidence of those witnesses whose affidavits had been filed on behalf of the petitioner. If the petitioner had made out a case for not producing the witnesses on 30-5-1977, neither the District Judge nor the Prescribed Authority was justified in ignoring to consider the affidavits of the witnesses of the petitioner. In these circumstances, it could not be said that the non-production of the witnesses was deliberate on the part of the petitioner. In the absence of the consideration of the affidavits of the petitioner's witnesses, the case went practically one sided. 10. In these circumstances, it could not be said that the non-production of the witnesses was deliberate on the part of the petitioner. In the absence of the consideration of the affidavits of the petitioner's witnesses, the case went practically one sided. 10. In this view of the matter, it appears appropriate to set aside the judgment of the District Judge as well as that of the Prescribed Authority, and to send back the case to the Prescribed Authority with a direction to give opportunity to the petitioner to produce his witnesses. 11. Sri G. P. Bhargava, counsel for the respondent No. 1, contended that after the decision of the District Judge a new fact has emerged. The same is that an application under section 21 of the Act has been filed by the owner of the shop which is in the tenancy of the respondent No. 1. He contended that in view of this development, the release of the shop in dispute in favour of the respondent No. 1 has become still more necessary since I am remanding the case to the Prescribed Authority both this parties are permitted to adduce such evidence on this controversy as they may like to do. As the case is being remanded, I am not expressing my opinion on other points. 12. In the result, the writ petition succeeds and is allowed. The orders of the District Judge as well as that of the Prescribed Authority are quashed. The Prescribed Authority is directed to decide the application filed by the Respondent No. 1 Chiranji Lal afresh in the light of the observations made above. I make not order as to costs.