Gulaicha Devi v. Prescribed Authority — 1988 DIGILAW 995 (ALL)

JUDGMENT S.D. Agarwala, J. - This is a petition under Article 226 of the Constitution of India. 2. An application was filed under section 21(l)(a) of the U.P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). 3. The property in dispute is a shop. The application was filed on the ground of personal need for settling his son, who was unemployed. This application was filed on 6th April, 1987, by the petitioner, who is the landlady. Radha Krishna, respondent no. 2, filed his written statement on 4th August, 1987. On 7th September, 1987, a replication was filed. On 14th September, 1987, the court directed the parties to file their evidence on affidavits. On 14th October, 1987, the petitioner filed her evidence in the shape of affidavits of herself, Lakshmi Narain, Sheoji, Sharwan Kumar, Ram Kishore and Ram Nath. Thereafter, the court fixed 20th October, 1987 for filing of the evidence on behalf of the tenant. The evidence was not filed and many adjournments were taken. Ultimately, on 23rd May, 1988, an application was made by the tenant stating therein that the petitioner may be directed to produce all the deponents of the affidavits filed on her behalf for cross-examination before the court and, thereafter, only the tenant shall file his affidavits. This application was allowed by the Prescribed Authority by his order dated 22nd September, 1988. The order dated 22nd September. 1988, has been challenged in the present petition. 4. I have heard the learned counsel for the parties. Learned counsel for the petitioner has contended that the order dated 22nd September, 1988 is an order manifestly erroneous, as the order does not contain any reasons as to why all the deponents of the affidavits filed in support of the petitioners' case should be cross-examined. The order has been passed as a matter of course as if it is a civil suit and this cannot be done in proceedings under the provisions of the Act. 5. Section 34 of the Act lays down the powers of the various authorities and the procedure to be followed by them. Sub-clause (1) of section 34 of the Act, which is relevant for the purposes of this case, is quoted below : "34(1). 5. Section 34 of the Act lays down the powers of the various authorities and the procedure to be followed by them. Sub-clause (1) of section 34 of the Act, which is relevant for the purposes of this case, is quoted below : "34(1). The District Magistrate, the prescribed authority or any appellate or revising authority shall for the purposes of holding any inquiry or hearing any appeal or revision under this Act have the same powers as are vested in the Civil court under the Code of Civil Procedure, 1908 (Act no. V of 1908), when trying a suit, in respect of the following matters namely : (a) summoning and enforcing the attendance of any person and examining him on oath; (b) receiving evidence on affidavits; (c) inspecting a building or its locality, or issuing commission for the examination of witnesses or documents or local investigation; (d) requiring the discovery and production of documents; (e) awarding, subject to any rules made in that behalf, costs or special costs to any parts or requiring security for costs from any party; (f) recording a lawful agreement, compromise or satisfaction and making an order in accordance therewith; (g) any other matter which may be prescribed". From the above sub-section (1) of section 34 of the Act, it is clear that the District Magistrate, the prescribed authority as well as the appellate and the revising authority have been given the power to receive evidence on affidavits. Rule 22 of the rules framed under the Act specifically lays down as to which of the provisions of the Civil Procedure Code would be applicable when a case is tried by the District Magistrate, the prescribed authority, appellate authority and the revising authority. For the purpose of convenience, rule 22 of the rules framed under the Act is quoted below : "22. For the purpose of convenience, rule 22 of the rules framed under the Act is quoted below : "22. The District Magistrate, the prescribed authority or the appellate or revising authority shall, for the purposes of holding any inquiry or hearing any appeal or revision under the Act, shall have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters, namely : (a) the power to dismiss an application, appeal or revision for default and to restore it for sufficient cause; (b) the power to proceed ex parte and to set aside, for sufficient cause, an order passed ex parte; (c) the power to award costs and special costs to any successful party against an unsuccessful party ? (d) the power to allow amendment of an application, memorandum of appeal or revision; (e) the power to consolidate two or more cases of eviction by the same landlord against different tenants; (f) the power referred to in Sections 151 and 152 of the Code of Civil Procedure, 1908 to make any order for the ends of justice or to prevent the abuse of the process of the authority concerned." 6. From a reading of section 34 of the Act along with rule 22 of the rules framed thereunder, it is clear that the authority exercising the powers under the provisions of the Act, which is a self contained code, have to follow the procedure prescribed by section 34 of the Act and rule 22 of the rules framed under the Act. The procedure is that the matter pending before the authorities shall be decided on the basis of the evidence received on affidavits. Oral evidence is not contemplated under these provisions. Though power has been given to the authorities to summon and enforce the attendance of any person and examine the said person on oath, put the legislative intent was that all the matters pending before the various authorities under the Act should only be decided on the basis of affidavits received in evidence and only very specific provisions of the Civil Procedure Code contained in rule 22 of the rules framed under the Act were made applicable to these proceedings. It is, consequently, clear that what was intended was that the evidence shall be received on affidavits. It is, consequently, clear that what was intended was that the evidence shall be received on affidavits. The authorities will come to a conclusion on the basis of affidavits and their replies in the shape of affidavits and it would not be necessary for the authorities to cross-examine the deponents who had filed the said affidavits. The question before the authorities is to be based on whether they believe or disbelieve a particular affidavit filed by a party, This intention is further made clear from the fact that rule 15(3) of the Rules framed under the Act clearly lays down that as far as possible, an application under section 21(1) of the Act shall be decided within two months from the date of its presentation. If oral evidence was contemplated to be filed and if the deponent of every affidavit was permitted to be cross-examined then it was not possible to decide a release application under section 21(1) of the Act within a period of two months. In view of the above, it is clear that, in the normal course, evidence was to be received on affidavits and the decision was to be based on the basis of the appreciation of the said affidavits. Giving of oral evidence and the cross-examination of the deponents of the affidavits was not contemplated by the Act in the normal course. This question has come up for consideration before this court in various cases. 7. In Pt. Mani Lal Tripathi v. Smt. Kamla Devil, 1982(2) ARC 471. Hon. K.N. Goyal, J., had an occasion to consider this question. Hon. K.N. Goyal, J., has observed that it is only in exceptional cases that it is open to the District Magistrate and the prescribed authority to call a deponent for cross-examination just as it is permissible for this court in writ petition. I respectfully agree with this decision. In Ram Kumar v. 1st Additional District Judge, Bareilly and another, 1983(1) ARC 663. Hon. K.C. Agarwal, J. has observed as under : "Section 34(a)(a) of U.P. Act XIII of 1972 was specifically enacted to provide for expeditious hearing of the proceedings contemplated under the Act. The object of the Act would be defeated if in every case the prayer to cross-examine the persons filing affidavits on behalf of other side, is acceded. Each case has to be examined on its merits. The object of the Act would be defeated if in every case the prayer to cross-examine the persons filing affidavits on behalf of other side, is acceded. Each case has to be examined on its merits. No one can claim a right to cross examine a person filing an affidavit as a right." In M/s Associated Cement Companies Ltd., Kanpur v. The Prescribed Authority, Kanpur, and another, 1984(1) ARC 137. Hon. R.M. Sahai, J. has held that an order directing cross examination is a matter of the discretion of the court which has to be exercised sparingly. Similarly, in Radha Kishan v. The 4th Additional District Judge, Jalaun at Oria and others, 1985(1) ARC 427. Hon. R.M. Sahai, J. again took the view, after examining section 34 of the Act, as under : "It was also urged that as section 34 of the Civil Procedure Code applied the authorities could not have decided the claim of parties on affidavits only. According to him, the parties should have been examined on oath and an opportunity should have been afforded for cross examining them. This argument has been advanced on number of occasions before different benches of this court, but has been replied. Moreover, the objection does not appear to have been taken before any of the authorities. Evidence on affidavits is permissible by section 6 and is necessary as Hell as the primary objective of Act XIII of 1972 is expeditious disposal of the case. It may be hindered if the parties are permitted to lead oral evidence. In this case also, it has been laid down that the evidence on affidavits is permissible by section 34 and the primary objective of the Act is expeditious disposal of the case. This object may be hindered if parties are permitted to lead oral evidence. 8. The consistent view of this court, consequently, is that the normal mode of proceeding in a case under the Act is to receive evidence on affidavits from both the parties and to decide the case on the basis of the said affidavits. It is only in a very rare case where the court thinks it necessary in the interests of justice to cross examine a particular deponent of an affidavit, but it has to be very sparingly exercised in every exceptional circumstances. It is only in a very rare case where the court thinks it necessary in the interests of justice to cross examine a particular deponent of an affidavit, but it has to be very sparingly exercised in every exceptional circumstances. If such a power is exercised, specific reasons for exercise of the powers have to be given by the authority concerned. The cross-examination cannot be ordered as a matter of course. 9. Learned counsel for the respondent has, however, relied upon Rang Lal v. The Prescribed Authority and another, 1982(1) ARC 449, decided by Hon. K.M. Dayal, J. (as he then was). It has been observed by Hon. K.M. Dayal. J. (as he then was) that the fact, that under section 34 of the Act, the parties are permitted to file affidavits, automatically attracts Order 19 Rule 2 C.P.C. It has not been said in that case that in very case, the deponent of an affidavit has to be examined to test the veracity of the affidavit. It has only been held that the power is there with the authority to call a deponent for cross examination. This position is not disputed. The Courts inherent power is always there in the interests of justice. The next case relied upon by the learned counsel is the decision in Ashfaq Ahmad v. The Prescribed Authority, Rampur and another, 1987(1) ARC 356, decided by Hon. K.P. Singh, J. In that case, Hon'ble K.P. Singh, J. has gone into details and the reason as to why he thought that cross-examination is required. It was in the facts and circumstances of that case that the view was taken that in the interests of justice, the deponent should have been cross-examined, the reason being that the deponent in his affidavit had set up the case of oral gift. In this case also, it has not been said that the cross-examination of the deponent in a proceeding under the Act is as a matter of course and the deponents of all the affidavits should be called for cross-examination. In this view of the matter, I do not think that the decision in the case of Ashfaq Ahmad v. The Prescribed Authority, Rampur and another (supra) advances the case on behalf of the respondent, as that was a decision on its own facts. In this view of the matter, I do not think that the decision in the case of Ashfaq Ahmad v. The Prescribed Authority, Rampur and another (supra) advances the case on behalf of the respondent, as that was a decision on its own facts. In the instant case, in the application made for cross-examination, no reason was given as to why each and every deponent was required to be cross-examined. The court while allowing the application for cross-examination also did not give any reason as to why it was a case where cross-examination was required. It was done as a matter of course. This could not be done. In the circumstances, the submission made by the learned counsel for the petitioner is well founded and the impugned order is manifestly erroneous. In fact, on the facts and circumstances of this case, the question of cross-examination of any deponent of an affidavit filed in support of the petitioners case is not required at all. The Prescribed authority has to give a decision on the basis of the affidavits on the record. It is for the Prescribed Authority to believe or disbelieve any of the affidavits, but it is not a case where any cross-examination is required. 10. Learned counsel for the respondent has further urged that it is not a fit case for interference under Article 226 of the constitution of India, as it is directed against an interlocutory order directing cross-examination. The order passed by the court below is completely against the provisions of the Act and I think it a fit case for interference under Article 226 of the Constitution of India. 11. The powers under Article 226 of the Constitution of India are extra- ordinary and it is the discretion of the court whether to interfere or not in an interlocutory order. In the instant case, the impugned order has resulted in grave injustice to the petitioner and is completely against the provisions of the Act and, as such, it is a fit cause where it calls for interference by this Court. 12. In view of the above, the petition is allowed, the order dated 22nd September, 1988, is hereby quashed and the prescribed authority is directed to dispose of the application, as already directed by my order dated 30th September, 1988, within three months. Parties are directed to bear their own costs.