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1985 DIGILAW 279 (ALL)

Suresh Chandra v. Prescribed Authority

1985-03-12

KAMLESHWAR NATH

body1985
JUDGMENT : Kamleshwar Nath, J. This writ petition is directed against an order, dated 13-12-1984, Annexure-6 to the writ petition, by the Prescribed Authority under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), whereby the prayer of the Petitioner to summon Dinesh Chandra for cross-examination was refused. 2. At the time of hearing of this petition appearance was put in on behalf of both the parties and since the case involved a short question of law, the writ petition was heard on merits on the request of counsel for both the patties. 3. Smt Shanti Devi, opposite party No. 2, the mother of Dinesh Chandra, filed a petition u/s 21 of the Act for release of a shop which was held by Suresh Chandra, the Petitioner, as a tenant. The relevant ground for the application, u/s 21 of the Act, was that Smt. Shanti Devi wanted to settle Dinesh Chandra, aged 21 years, in cloth or general merchandise business for which she was in bona fide need of the shop. The Petitioner opposed the application in the written statement where, among other things, he said that Dinesh Chandra was a person of undeveloped intellect and, therefore, was not capable of carrying on any business. 4. To substantiate her case, Smt. Shanti Devi filed an affidavit of Dinesh Chandra, among others. The Petitioner filed an application, Annexure-4, before the Prescribed Authority for summoning Dinesh Chandra for cross-examination so that the true mental state of Dinesh Chandra could de brought before the court. The application was opposed by Annexure-5 to the writ petition contending that there was no reason for summoning Dinesh Chandra for cross-examination and that the question of mental condition of Dinesh Chandra could best be determined by a medical examination. It was said that if the Petitioner wanted Dinesh Chandra to be examined medically, Smt. Shanti Devi was quite willing. 5. Learned Prescribed Authority observed that under the Act evidence on affidavits has to be received, but nothing necessitated cross-examination and that the question of mental state of Dinesh Chandra could be decided on the basis of evidence. He, therefore, rejected the application. 6. 5. Learned Prescribed Authority observed that under the Act evidence on affidavits has to be received, but nothing necessitated cross-examination and that the question of mental state of Dinesh Chandra could be decided on the basis of evidence. He, therefore, rejected the application. 6. Learned Counsel for the Petitioner referred to Section 34(1) and (b) of the Act and contends that in respect of summoning and enforcing attendance of any person and examining him on oath or in respect of receiving evidence on affidavits, the Prescribed Authority has the same powers as are vested in a civil court when trying a suit under the Code of Civil Procedure, 1908. He then refers to Order 19 rules 1 and 2 of CPC and contends that it is the duty of court to summon a person for cross-examination on affidavit. Reliance has been placed on the decisions of Abdul Hameed Khan Vs. Mujeed-Ul-Hasan and Others, AIR 1975 All 398 , Rang Lal v. Prescribed Authority Deoria 1982 AWC 456 and a decision of this Bench in Writ Petition No. 3076 of 1979--Assan Dass v. The Prescribed Authority Lucknow, decided on 21-1-1980. 7. The contention of learned Counsel for opposite party No. 2 is that under none of the provisions indicated above or the rulings relied upon by the learned Counsel for the Petitioner it is obligatory upon the Prescribed Authority to summon an affidavit maker for cross-examination, the power, it is urged, has to be exercised where the Prescribed Authority considers such cross-examination to be just and necessary. It is next urged that u/s 38 of the Act, the provisions of the Act have an over-riding effect over those in the Code of Civil Procedure. The contention is that under the Act, evidence in support of a petition, u/s 21 of the Act, has to be given in the form of affidavits and not in the form of oral testimony, that Order 19 Rule 1 of CPC applies to a case where the Court requires any particular fact to be proved, and that Rule 2 of Order 19 CPC applies to interlocutory applications filed under the Code of Civil Procedure. The submission is that an affidavit in support of an application u/s 21 of the Act is not an interlocutory application, nor is evidence required by the court to be furnished and, therefore, the power to summon the deponent of an affidavit in such proceedings is not to be found under order 19 rules 1 and 2 Code of Civil Procedure. 8. It is lastly contended by the learned Counsel fur opposite parties that at best the power to summon deponents of affidavits is a discretionary power in the event of necessity and in the interest of justice and where subordinate court has exercised its discretion in a proper manner, this Court may not interfere in exercise of its writ jurisdiction. Learned Counsel for opposite parties reiterated his offer that if the mental state of Dinesh Chandra is required to be considered, the opposite party No. 2 has no objection to his being medically examined at the instance of the Petitioner. 9. There seems to be considerable substance in the contention of learned Counsel for the opposite parties. The Act is a special statute which lays down its own procedure and exercise of powers by the authorities who have to act in accordance with that procedure. Section 38 of the Act has accorded superseding effect to the provisions of the Act over the Transfer of Property Act and Code of Civil Procedure. Section 34(1) of the Act says that the Prescribed Authority shall have the same powers as are vested in the civil court under the CPC 1908 when trying a suit "in respect of the particular matters specified thereafter. Clause (a) relates to summoning and enforcing the attendance of any person and examining on oath. This power to summon witnesses is not to be confused with the procedure to receive oral evidence as set forth in Order 18 Code of Civil Procedure. The manner of receiving evidence is to be found in Clause (b) of Section 34(1) of the Act, i.e. the receiving of evidence on affidavits. The distinction in terminology of Clauses (a) and (b) deserves particular notice. Clause (a) deals with "summoning and enforcing attendance" of a person for examination on oath, it does not speak of "receiving evidence." Clause (b) deals with "receiving evidence". Learned Counsel for the parties agree that there is no other provision in the Act which deals with "receiving evidence". The distinction in terminology of Clauses (a) and (b) deserves particular notice. Clause (a) deals with "summoning and enforcing attendance" of a person for examination on oath, it does not speak of "receiving evidence." Clause (b) deals with "receiving evidence". Learned Counsel for the parties agree that there is no other provision in the Act which deals with "receiving evidence". Since the provisions of the Act supersede the provisions of the Code of Civil Procedure, the only provision applicable for "receiving evidence" in a proceeding under the Act is Clause (b) of Section 34(1) of the Act. Since that clause contemplates "receiving evidence on affidavits", it is clear that the only way in which a party is legally entitled to put in evidence is by means of affidavits. The legal right of a party to a civil suit to lead evidence in a civil court as contained in Order 18 Rule 2 CPC is not available in a proceeding under the Act. Rule 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules 1972 (fur short the Rules) requires that the Prescribed Authority "shall make a Memorandum of any oral evidence admitted by him". This is quite different from the provisions of Order 18 Rules 5 and 8 CPC which lay down the manner in which evidence is taken down in a civil suit, and, having regard to Section 38 of the Act, would not apply to a proceeding under the Act. It is also noticeable that while Clause (b) of Section 34(1) of the Act speaks of "receiving evidence", Rule 30 speaks of any "oral evidence admitted" by the Prescribed Authority. 'Reception' of evidence is obligatory, 'admission' of evidence is discretionary. 10. Emphasis must be laid upon the distinction between the 'legal rith' of a party, on the one hand, and the power of the Prescribed Authority to summon a person to give evidence on the other hand. The limits imposed by the Act on a party in the matter of leading evidence under the Act are substantially widened qua the Prescribed Authority in view of the provisions of Section 34(1)(a) of the Act read with Section 30(b) CPC whereunder the Prescribed Authority may admit oral evidence. Where oral evidence is admitted, the Prescribed Authority is required to make a memorandum of the oral evidence under Rule 30. Where oral evidence is admitted, the Prescribed Authority is required to make a memorandum of the oral evidence under Rule 30. But, in all these matters the Prescribed Authority has to act in its discretion, and cannot be forced by a party to act as a matter of right. Once evidence has been received on affidavit, which is a matter of procedure, the Prescribed Authority would be competent to summon such a person for being examined on oath under Clause (a) of Section 34(1) of the Act read with Section 39(b) Code of Civil Procedure. 11. Order 19 Rule 1 CPC clearly deals with a case where the court orders "that any particular fact or facts may be proved by affidavit." This power is derived from the main power contained in Section 30(c) CPC which says that subject to the conditions and limitation as may be prescribed, the court may, at any time, order any fact to be proved by affidavit. It may be mentioned that the proviso, as substituted in U.P., to Order 19 Rule 1 Code of Civil Procedure, makes it incumbent upon the court to order attendance of a witness where it appears to the court that the production of such witness for cross-examination is necessary. The condition precedent to the application of this proviso is that the court must find the cross-examination of a deponent of an affidavit to be necessary; and once it is so found, there is the mandatory "shall" for the court to summon such witness. This proviso is of no help to the Petitioner for two reasons. Firstly, the Prescribed Authority has not considered it necessary to summon Dinesh Chandra because, according to it, the matter has to be established on evidence. Moreover, as contended by learned Counsel for opposite parties, the mental state of Dinesh Chandra could better be ascertained clinically rather than by appearance in the witness box. Secondly, as already stated, Order 19 Rule 1 CPC would apply to a case where a fact has been required by a court to be proved on affidavit. That is not the reason for which the affidavit of Dinesh Chandra was filed; that affidavit was filed by opposite party No. 2 Smt. Shanti Devi to prove her case of bona fide need u/s 21 of the Act. 12. That is not the reason for which the affidavit of Dinesh Chandra was filed; that affidavit was filed by opposite party No. 2 Smt. Shanti Devi to prove her case of bona fide need u/s 21 of the Act. 12. Rule 2(1) of Order 19 CPC says that upon any application evidence may be given by affidavit, but the court may, at the instance of either party, order the attendance for cross-examination of the deponent. It appears to me that the expression "any application" in this rule means an application which may be made under CPC as contra-distinguished from an application specifically provided under the Act. An application u/s 21 of the Act cannot be considered to be an application under CPC because the former is an application expressly specified in that section, The broader and general clause referred to in Order 19 Rule (1) CPC must yield to the particularly specified application of Section 21(1) of the Act having regard to the provisions of Section 38 of the Act. I do not think, therefore, that the affidavit of Dinesh Chandra could be said to be an affidavit which could fall within the category of those of Order 19 Rule 2 CPC ; that being so, an order for attendance of Dinesh Chandra for cross-examination could not be passed under Order 19 Rule 2(1) Code of Civil Procedure. Moreover, the power under Order 19 Rule 2(1) CPC is not a mandatory power, but is a discretionary power as the word 'may' would signify. In this case the Prescribed Authority has exercised its discretion for reasons recorded ; even otherwise it seems reasonable that attendance of Dinesh Chandra may not be enforced for cross-examination only to ascertain whether be did not possess a properly developed mind that is essentially an expert's job. 13. In the case of Rang Lal v. Prescribed Authority Deoria (supra) an application for cross-examination of the deponent of an affidavit, filed in proceedings under the Act, bad been initially allowed. Subsequently, the Prescribed Authority passed an order refusing permission to cross-examine the witnesses. That order was held to be illegal firstly, on the ground that the Prescribed Authority was not authorised to review his order. Subsequently, the Prescribed Authority passed an order refusing permission to cross-examine the witnesses. That order was held to be illegal firstly, on the ground that the Prescribed Authority was not authorised to review his order. The second ground stated is that Order 19 Code of Civil Procedure, under which the affidavits were sworn, permitted cross-examination of persons, whose affidavits were filed, if requested by the other side and it was observed that the request for cross-examination could not be turned down. It may be stated with great respect that the various provisions of the CPC and the Act, which have been referred to above, did not come up for consideration before the Court while making that observation which may be in the nature of obiter dictum. It is clear enough that the proviso to Order 19 Rule 1 Code of Civil Procedure, as applicable in U.P., required the court to determine whether cross-examination of the deponent of an affidavit was necessary or not and only if it was found necessary, the concerned authority could rely upon the mandatory provision contained in the proviso to order the attendance of the witness for cross-examination. Again, Rule 2(1) of Order 19 CPC clearly lays down that the court may at the instance of either party order the attendance for cross-examination of the deponent. In both the rules the power is conditioned by discretion. These aspects are not found considered in the decision under consideration which contains the observation "that the request of cross-examination could not be turned down." 14. The case of Abdul Hameed Khan v. Mujeed-ul-Hasan (supra) is of no help to the Petitioner because in that case the request for production of the deponent for cross-examination was accepted by the court. It may also be mentioned that the decision does not concern a case under the Act, but an Inter-locutory application under Order 39 Code of Civil Procedure. 15. It may also be mentioned that the decision does not concern a case under the Act, but an Inter-locutory application under Order 39 Code of Civil Procedure. 15. In the case of Assan Dass v. The Prescribed Authority Lucknow (supra) also the application praying for cross-examination of the witnesses, in an application u/s 21 of the Act, was allowed by the Prescribed Authority and it was observed that the ''conjoint reading of Rule 1 of Order XIX CPC and Section 34 of the Act makes it quite manifest that if the Prescribed Authority is satisfied that it is necessary for the ends of justice and to elicit truth that the deponent of the affidavit should be called upon to appear before it for the purpose of cross-examination, the Prescribed Authority has jurisdiction and power to ask such person to appear before it for that purpose". I do not think that this decision brings any advantage to the Petitioner. The Prescribed Authority here has not considered it necessary to summon the witness for cross-examination. It was, therefore, well within its powers to refuse to summon the witness. 16. These are all the points, which have arisen in this writ petition which, therefore, deserves to fall. As urged by the learned Counsel for opposite party No. 2 the Petitioner is still at liberty to request the Prescribed Authority for the medical examination of Dinesh Chandra which the said authority is expected to consider and determine. 17. The writ petition is dismissed. Parties shall bear their costs. 18. The parties are directed to appear before the Prescribed Authority on 15-4-85 for further proceedings; the stay order is vacated.