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2016 DIGILAW 334 (UTT)

Harjinder Singh @ Billa v. Harvansh Lal

2016-07-13

U.C.DHYANI

body2016
JUDGMENT : By means of present writ petition, the petitioner seeks the following relief, among others: “To issue a Writ, Order or Direction in the nature of Certiorari setting aside the impugned order dated 30-05-2016 passed by learned Prescribed Authority/Civil Judge (Jr. Division), Rudrapur, District Udham Singh Nagar in Rent Control Case No. 1 of 2015 (Contained in Annexure 7 to the present writ petition) consequently allowing the application “38 C” moved by the petitioner.” 2. Plaintiff-landlord-respondent herein filed an application for release under Section 21(1) (a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as Act No. 13) against the tenant-petitioner in the year 2015. During the course of hearing, the affidavits were exchanged, as is the usual practice adopted for the disposal of such applications. The petitioner wanted to cross examine son of respondent, Dr. Amit Arora, and daughter-in-law, Dr. Shweta Arora. Learned Prescribed Authority did not permit the petitioner to cross-examine such witnesses, hence the present writ petition. 3. The scope of cross-examination of any witness in prescribed authority case has been dealt with by the Division Bench of Hon’ble Allahabad High Court in Khusi Ram Dedwal vs. Additional Judge, Small Causes, decided on 13th July, 1997. The same has also been discussed in Mohd. Akram vs. Prescribed Authority, decided on 28th January, 2011 and Mahesh Chand vs. Additional Civil Judge, decided on 28th January, 2005. 4. It will be worthwhile to quote the relevant discussions, in the body of judgment of Khusi Ram Dedwal vs. Additional Judge, herein below: “8. The Hon’ble Supreme Court, in State of Jammu and Kashmir and others v. Bakshi Gulam Mohammad and another, AIR 1967 SC 122 , considering similar provisions relating to receiving of evidence on affidavit in Jammu and Kashmir Commission of Inquiry Act, held that no person has right to cross-examine the deponent of an affidavit as a general rule. Section 4 (c) of the said Act provided as follows: “The Commission shall have the power of a civil court, while trying a suit under the Code of Civil Procedure Court, 1977, in respect of the following matters namely: (a) summoning and to enforce the attendance of any person and examining him on oath: (b) ………………………… (c) Receiving evidence on affidavits. It is not in dispute that the Code of Civil Procedure of Jammu and Kashmir State referred to in this section is in the same terms as the Indian Code of Civil Procedure. Order XIX, Rule 1 of the Indian Code.” The Court interpreting Section 4 (c) held as under: “If Section 4 (c) conferred a right to cross-examine every one who swore an affidavit as to the facts involved in the inquiry, then Section 10 (2) would become superfluous. An interpretation producing such a result cannot be right. It also seems to us that Order XIX, Rule 1 has to be read with Order XVIII Rule 4 which states that the evidence of the witnesses in attendance shall be taken orally in open Court. It would appear, therefore, that Order XIX, Rule 1 is intended as sort of exception to the provisions contained in Order XVHI, Rule 4. The act contains no provision similar to Order XVIII. Rule 4. Therefore, when Section 4 (c) of the Act gave the Commission the power of receiving evidence on affidavits. It gave that as an Independent power and not by way of an exception to the general rule of taking evidence viva voce on open Court. It would be natural in such circumstances to think that what the Act gave was only the power to take evidence by affidavit and did not intend it to be subject to the proviso contained in Order XIX, Rule 1. If it were not so, when the result really would be require all evidence before the Commission to be given orally in open Court. If that was intended, it would have been expressly provided for in the Act.” 9. The various Benches of this Court considered the rights of a party to cross-examine the deponent of an affidavit, in the proceedings under the Act. There is no divergent view that a deponent of an affidavit cannot be cross-examined or there is no power with the authorities to permit cross-examination of a deponent. The only question remains as to what are the circumstances under which the cross-examination can be permitted. 10. In M/s. Associated Cement Companies Limited, Kanpur v. Prescribed Authority/ IX Additional Munsif, Kanpur and another. 1984(1) ARC 137. The only question remains as to what are the circumstances under which the cross-examination can be permitted. 10. In M/s. Associated Cement Companies Limited, Kanpur v. Prescribed Authority/ IX Additional Munsif, Kanpur and another. 1984(1) ARC 137. Hon’ble R.M. Sahal, J. (as he then was) held that the discretionary power has to be exercised sparingly by the prescribed authority while deciding the release application under Section 21(1) (a) of the Act. 11. The same view was followed in Smt. Gulaicha Devl v. Prescribed Authority (Munsif), Basti and another 1989 (1) ARC 407; Satish Kumar v. Prescribed Authority (A.C.J.M.) Dehradun and another, 1991 (1) ARC 438 and Subhosh Chandra Sachdeva v. District Judge, Etah and others, 1992 (2) ARC 253. In these cases, the decision in Rang Lal v. Prescribed Authority and another, 1983 (1) ARC 449, was considered and it was held that the prescribed authority had earlier allowed the application for cross-examination but later on without any justification refused permission to his cross-examine the deponent of the affidavits and in that context an observation was made that in a case where an affidavit is filed the veracity or credibility of witness cannot be decided unless the deponent of the affidavit is subjected to cross-examination. The decision in Ashraf Ahmad v. Prescribed Authority (Civil Judge), Rampur and another, 1987 (1) ARC 356, wherein on facts it was found that the dispute was relating to the oral gift on which the landlord was claiming the right In the property, the prescribed authority in those circumstances should have permitted the cross-examination. These two cases were distinguished on facts. 12. The proviso to Order XIX, Rule 1 has used the words “cross-examination is necessary”. The effect of this proviso was considered by a Division Bench of this Court in Assam Doss v. Prescribed Authority/Civil Judge, Mohanlalganj, Lucknow and another, 1996 (12) ARC 92, and it was held that if the prescribed authority is satisfied that the cross-examination is necessary, it can allow a party to cross-examine the deponent of an affidavit. The Court observed. The effect of this proviso was considered by a Division Bench of this Court in Assam Doss v. Prescribed Authority/Civil Judge, Mohanlalganj, Lucknow and another, 1996 (12) ARC 92, and it was held that if the prescribed authority is satisfied that the cross-examination is necessary, it can allow a party to cross-examine the deponent of an affidavit. The Court observed. “In our view a conjoint reading of Rule 1 of Order XIX, Code of Civil Procedure 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.” When cross-examination is necessary, it has to be decided in the context of factual backdrop of the case and in the context of nature of the proceedings under Act. The application under Section 21 (1) of the Act is to be decided expeditiously. Rule 15 (3) of the Rules framed under the Act lays down that every application under Section 21 (1) of the Act shall, as far as possible, be decided within two months from the date of its presentation. The legislature did not provide that oral evidence to be adduced in support of the case as contemplated under Order 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. The Hon. Supreme Court emphasised this aspect in the case of State of Jammu and Kashmir (supra). Considering this provision Hon’ble R.M. Sanai J. as he then was, in the case of Radha Krishan v. V Additional District Judge, Jalaun at Orai and others, 1985 (1) ARC 427, observed that the primary objective of Act No. 13 of 1972 is expeditious disposal of the cases. It may be hindered if the parties are permitted to lead oral evidence. It may be hindered if the parties are permitted to lead oral evidence. In the case of Smt. Gutaicha Devi (supra) the following observation was made: “If oral evidence was contemplated to be filed and if the deponent of every affidavit was permitted to be cross-examined then it would not be possible to decide the release application under Section 21 (1) of the Act within a period of two months.” It may be that when the case is being decided, a party files an application for cross-examination only to delay the proceedings. The Court has to examine in each case as to whether on the facts and circumstances of the case, cross-examination is necessary and the application filed for cross-examination is bona fide. If the matter relates as to the extent of the accommodation or the matter which could be verified on inspection, the cross-examination will be hardly relevant. If the question arises regarding title of the property which can be decided on the basis of the documentary evidence, the cross-examination will not be relevant as the fact can be proved by documentary evidence which can be annexed with the affidavit. 13. 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 v. Principal, Rajendra Medical College, AIR 1973 SC 1260 and State of Haryana v. Rattar Singh, AIR 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. 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.” 5. The gravamen of controversy, in the instant case, is - whether such cross-examination is necessary or not? Respondent’s witnesses, who are his son and daughter-in-law, are living in America. The gravamen of controversy, in the instant case, is - whether such cross-examination is necessary or not? Respondent’s witnesses, who are his son and daughter-in-law, are living in America. They have already filed their affidavits before learned Prescribed Authority, who has discussed the issue, although in brief. The Prescribed Authority did not find it to be a fit case in which the cross-examination of the respondent’s witnesses was desired. Under the law, the Court has been given power, in a P.A. case, for production of the deponent for cross-examination, if it is necessary. The provision itself is clear that the court has it’s discretion to permit for cross-examination and such discretion is exercised only when cross-examination is necessary. The necessity for cross-examination depends upon the facts and circumstances of each case. It is not in every case that once the application is filed for cross-examination, it has to be permitted as a general rule. It is true that the veracity of averments made in the affidavits can be tested by cross-examination, but unless it is established that the veracity of facts stated in the affidavit is necessary to be tested by cross-examination, the party must give reasons as to which particular facts and under what circumstances and reasons, such cross-examination is necessary. In the context of each P.A. case, the purpose of enacting U.P. Act No. 13 of 1972 has to be taken into account, while permitting the party to cross-examine the deponent of an affidavit. 6. The Writ Court should not, by and large, substitute its own discretion, for the discretion exercised by learned Prescribed Authority, unless there are compelling reasons to do so. 7. This Court is unable to take a view different from what was taken by learned Prescribed Authority. 8. The writ petition, therefore, fails and is dismissed.