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Uttarakhand High Court · body

2007 DIGILAW 153 (UTT)

Raj Kumar v. Om Prakash Sharma

2007-04-02

B.S.VERMA

body2007
Judgment Learned counsel for both the parties are ready to argue the writ petition finally today at the admission stage. 2. The petitioner has preferred this writ petition to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 1-3-2007 contained in Annexure NO.5 to the writ petition, whereby application no. 59-C of the opposite party Rajkumar praying for permission to cross-examine the witnesses of the applicants has been rejected by the Prescribed Authority/Civil Judge (Senior Divison), Haridwar. 3. Relevant facts of the case are that the landlords-respondents filed a release application against the petitioner and respondent nos. 8 to 11 (tenants) are in occupation of the disputed shops on rent @ Rs. 20-84 per month. Ultimately, the applicants/plaintiffs issued notice of demand and term ination of tenancy, but the opposite parties-defendants did not vacate the disputed shops and did not pay any rent, hence S.C.C. Suit No. 18 of 1983 Om Prakash Sharma and others Vs. Madho Prasad alias Madho Ram was instituted in the court of Civil Judge (Junior Division), Haridwar. The suit is still pending. During the pendency of the suit, the original defendant Madho Ram died. The opposite parties are legal heirs of the deceased tenant Madho Prasad alias Madho Ram and they are in occupation of the disputed shops. The landlords have moved an application under Section 21 (1 )(a) of the UP. Act No. 13 of 1972 (for short the Act) for release of the disputed shops on the ground of bonafide need against the tenants, which has been registered as P.A. Case NO.3 of 2002. The opposite parties contested the application and filed their written statement. They denied the allegations made in the application and asserted that the disputed property is in fact temple of Sri Vishnu Bhagwan Laxmi Narayan and is being used by general public to offer prayers. It was also contended that deceased Madho Ram was never a tenant in the disputed premises, rather he was acting as Pujari in the said temple and after his death, the petitioner is working as such. Evidence in the case was led by the landlords by filing affidavits. It was also contended that deceased Madho Ram was never a tenant in the disputed premises, rather he was acting as Pujari in the said temple and after his death, the petitioner is working as such. Evidence in the case was led by the landlords by filing affidavits. Thereafter, the opposite parties tenants moved an application under Section 34(a) & (b) of the Act read with Rule 22(f) of the Rules framed there-under for permission of the Prescribed Authority to cross-examine the witnesses and according to the petitioner, the reason for cross examining the witnesses was that the respondent no.1 had concealed material facts in his affidavit and had not disclosed his other properties apart from the disputed property and none of the witnesses had disclosed the other assets of the petitioner. The aforesaid application of the tenants was opposed by the landlords on the ground that the tenants have not raised any reasonable ground to cross-examine the witnesses and the grounds mentioned in the application are imaginary. The learned Prescribed Authority after hearing both the parties and considering the application of the tenant- Raj Kumar and objection against the same by the landlords has passed a detailed order holding that there are no sufficient reasons shown in the application so as to permit the petitioner Raj Kumar to cross-examine the witnesses, who filed affidavits in support of the case of the landlords. Aggrieved by the order dated 1-3-2007, the tenant- Raj Kumar has come up before this Court in the present writ petition. 4. The petitioner has assailed the impugned order of the Prescribed Authority dated 1-3-2007 mainly on the ground that the petitioner in his application (Annexure No.3 to the writ petition) has given concrete reasons which necessitated the cross-examination of the witnesses for a just decision because the respondent no. 1 had concealed material facts from the court in his affidavit and he failed to disclose his other properties apart from the disputed property. 5. I have heard Sri Pankaj Miglani, learned counsel for the petitioner at length and perused the material on record vis-a-vis the impugned order dated 1-3-2007 passed by the Prescribed Authority. 6. 1 had concealed material facts from the court in his affidavit and he failed to disclose his other properties apart from the disputed property. 5. I have heard Sri Pankaj Miglani, learned counsel for the petitioner at length and perused the material on record vis-a-vis the impugned order dated 1-3-2007 passed by the Prescribed Authority. 6. At the outset, it may be mentioned that from a reading of Section 34 of the Act read with Rule 22 of the Rules framed there-under, it is evident that the Prescribed Authority has to follow the procedure prescribed under Section 34 of the Act as also Rule 22 of the rules framed under the said Act. The applications under Section 21 of the Act have to be decided on the basis of evidence led by the parties by filing affidavits. Oral evidence is not contemplated under these provisions. No doubt, power has been given to the authorities to summon and enforce attendance of any person and to examine him on oath. The intention of the legislative was that the matters pending before various authorities under the said Act should only be decided on the basis of affidavits filed in evidence by the rival parties. Section 34(1 )(b) of the Act confers power on the authorities concerned to receive evidence on affidavits and the principle, which is applicable under Order XIX, Rule 1 of the C.P.C., can be made applicable, which empowers the Court to summon a deponent of an affidavit for his cross-examination. The authorities have power to permit any party to cross-examine the deponent of the affidavit, but the exercise of this power should be on the principle as laid down under Order 19, Rule 1 of the C.P.C. as amended by UP Act No. 57 of 1976. Thus, the Court has discretion to permit for cross-examination when such cross-examination is necessary for proper adjudication of the matter in dispute. If a party intends to cross-examine, he has to give necessary facts in the application as to why the cross-examination is necessary. Cross-examination cannot be ordered as a matter of course. It is for the Prescribed Authority to give reasons either for allowing or refusing the cross-examination. It can thus be inferred that discretion to permit cross-examination of deponent may be exercised when it is not possible for the party to contradict the fact by filing evidence on affidavit. Cross-examination cannot be ordered as a matter of course. It is for the Prescribed Authority to give reasons either for allowing or refusing the cross-examination. It can thus be inferred that discretion to permit cross-examination of deponent may be exercised when it is not possible for the party to contradict the fact by filing evidence on affidavit. I am fortified in my view by the Division Bench judgment of the Allahabad High Court in the case of Khushi Ram Dedwal Vs. Additional Judge, Small Causes Court/Prescribed Authority, Meerut and others [1997(2), A.R.C., Page 674] wherein it has been observed that "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 reasons 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. "It was further observed in that "the legislature did not provide that oral evidence to be adduced in support of the case as contemplated under O. XVIII, Rule 4 C.P.C. But the facts are to be proved on affidavits. If unnecessary cross-examination is permitted, that will only hamper the expeditious disposal of the cases. "In the case, of Smt. Gulaicha Devi Vs. Prescribed Authority (Munsif) Bastiand another [1989(1), Allahabad Rent Cases, Page 407J it has been held that evidence in the matter of release application has to be filed in the shape of affidavit and normally the Prescribed Authority should not permit cross-examination of deponent. Such power to permit the cross-examination should be exercised in exceptional cases only and in such case, Prescribed Authority is required to give reasons. The Allahabad High Court in the Case of Smt. Fahmida Shoeb (Dead) vs. Kanhaiya Lal (dead) and another [2005(61) A.L.R., 310] has held that it is a condition precedent that while allowing the application for cross-examination, it is incumbent upon the Prescribed Authority to point out in the order exceptional circumstances which are necessary for such permission. 7. The Allahabad High Court in the Case of Smt. Fahmida Shoeb (Dead) vs. Kanhaiya Lal (dead) and another [2005(61) A.L.R., 310] has held that it is a condition precedent that while allowing the application for cross-examination, it is incumbent upon the Prescribed Authority to point out in the order exceptional circumstances which are necessary for such permission. 7. In the case at hand, the copy of application under Section 34 read with Rule 22 of the Rules framed under the U.P. Act No. 13 of 1972 and Order 19, Rule 1 C.P.C. has been annexed as Annexure NO.3 to the writ petition. In this application the petitioner, the main contention of the tenant is that the witnesses have not disclosed material facts especially the fact that the applicant-landlords have released shop in another matter. It has also been contended that the landlords' witness Om Prakash has not given the details of assets and income in the affidavits. The acquaintance of the witnesses Rameshwar and Balkishan with the landlords has not been disclosed in the affidavits by the said witnesses. The learned Prescribed Authority in his impugned order has dealt with all the aspects and material factual position of the case came to the conclusion that the petitioner-Opposite Party has not set out concrete and satisfactory reasons so as to entitle him to cross-examine the witnesses. The Prescribed Authority has also observed that it is open to the petitioner-Opposite Party to controvert the statements on oath given by the landlords' witnesses by filing affidavits in rebuttal. The Prescribed Authority has not committed any manifest error by not allowing the cross-examination of the deponents of affidavits to the petitioner-tenant. The Prescribed Authority has recorded reasons for refusing the permission to cross-examine the deponents in so many words in the impugned order. Apart from above, it is significant to mention here that the primary objective of the U.P. Act No. 13 of 1972 is expeditious disposal of the cases. I do not find any perversity or any manifest error of law in the order dated 1-3-2007 passed by the Prescribed Authority in rejecting the application, paper no. 59-C, moved by the petitioner for permission to cross-examine the deponents. 8. For the reasons aforesaid, the writ petition is devoid of merit and must fail outright at the admission stage. 9. The writ petition is dismissed in limine. All the applications stand disposed of.