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2004 DIGILAW 137 (UTT)

Shyam Lal v. Prescribed Authority, Dehradun

2004-08-06

RAJESH TANDON

body2004
Judgment Heard the learned counsel for the parties at length. 2. By the present writ petition the petitioner has prayed for a writ of certiorari quashing the order dated 8-6-2004, passed by the respondent no. 1, Prescribed Authority/Civil Judge (SD), Dehradun. 3. Brief facts giving rise to the present writ petition are that an application under section 21 (1) (a) of Act No. 13 of 1972 was filed for releasing of the accommodation. During the pendency of the case an application was filed on 218-2003 wherein prayer has been made for cross examination of three witnesses namely Sri Krishna Kumar, landlord, Sri G.D. Gupta and Ranjeet Singh against which objection was filed by the landlord. A perusal of the application shows that no reason has been assigned in the application for cross-examination of the witnesses. 4. It is well known fact that the cases before the Prescribed Authority are to be decided on the basis of the affidavits filed by the parties. The entire Code of Civil Procedure has not been made application in the proceedings before the Prescribed Authority by virtue of Section 34 of U.P. Act No. 13 of 1972. The Prescribed Authority has given reasons while rejecting the application for cross-examination. Order XIX Rule 1 C.P.C. provides that any court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit. Proviso of the said rule gives discretion to the Court to direct for production of any witness for cross-examination. 5. A Division Bench of Allahabad High Court in the case Khushi Ram Dedwal vs. Add!. Judge Small Causes Court, A.R.C. 1997 (2), 674 has held as under: "The principle that a party is to be permitted to cross-examine on the principle of natural justice cannot be accepted in every case. Oral examination in all cases is not contemplated. Even in disciplinary inquiries in exceptional cases oral evidence may not be insisted upon as held in Hira Nath Mishra vs. Principal Rajendra Medical College, A.I.R. 1973, SC 1260 and State of Haryana vs. Rattar Singh, A.I.R. 1977 SC 1512. If a party wants to cross-examine, he has to give the necessary facts in the application as to why the cross-examination is necessary. The Prescribed Authority will give the reasons either for allowing or refusing the cross-examination. If a party wants to cross-examine, he has to give the necessary facts in the application as to why the cross-examination is necessary. The Prescribed Authority will give the reasons either for allowing or refusing the cross-examination. The reason disclosed in the order of the Prescribed Authority will show whether he acted fairly or not. Considering every aspect of the matter the authority under the provisions of U.P. Act No. 13 of 1972 can permit the cross-examination of a deponent of an affidavit only when it is necessary in the case. " 6. Further by virtue of the amendment made in the Code of Civil Procedure recording of evidence by affidavit has been provided under Order XVIII, RA. In this context the Apex Court in the case Ameer Trading Corporation Ltd. vs. Shapooriji Data Processing Ltd.* [2004 (96) RD 386] has held as under: "15. The aforementioned provision has been made to curtail the time taken by the Court in examining a witness in-chief. Sub rule (2) of Rule 4 of Order 18 of Code of Civil Procedure provides for cross examination and re-examination of witness which shall be taken by the Court or the commissioner appointed by it. 16. We may notice that Rule 4 of Order 18 was amended with effect from 1-7-2002 specifically provided thereunder that the examination in-chief in every case shall be on affidavit. Rule 5 of Order 18 had been incorporated even prior to the said amendment. 18. It, therefore, appears that whereas under the unamended Rule, the entire evidence was required to be adduced in court, now the examination-in-chief of a witness including the party to a suit is to be tendered on affidavit. The expression "in every case" are significant. What, thus, remains, viz. cross-examination or re-examination in the appellable cases will have to be considered in the manner laid down in the Rules, subject to the other sub rules of Rule 4. 7. Since the Prescribed Authority has exercised his powers for deciding the case on affidavit, I find no infirmity in the order passed by the Prescribed Authority rejecting the application for cross examination of the defendants who have filed the affidavits. 7. Since the Prescribed Authority has exercised his powers for deciding the case on affidavit, I find no infirmity in the order passed by the Prescribed Authority rejecting the application for cross examination of the defendants who have filed the affidavits. Further in view of the judgment of Division Bench of Allahabad High Court, cross examination being not a right of a party it can be invoked only in the circumstances when it becomes necessary, the order passed by the Court below, therefore, cannot be interfered. 8. Further the order having been passed in accordance with the amended Order XVIII Rule 4, no interference is required under Article 226/227 of the Constitution of India. 9. Consequently, I find no illegality in the order passed by the Prescribed Authority. The writ petition is devoid of merit and is hereby dismissed. No order as to costs.