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2021 DIGILAW 40 (UTT)

Mohan Singh v. Sarfaraz Hussain

2021-01-13

LOK PAL SINGH

body2021
JUDGMENT Lok Pal Singh, J. - The present writ petition under Articles 226 and 227 of the Constitution of India is directed against the impugned order dated 05.06.2012 passed by the Prescribed Authority/Civil Judge (Sr. Division)/FTC, Almora in Rent Control Case No.2 of 2010, Sarfaraz Hussain & another vs. Mohan Singh and another, whereby, the application filed by the petitioners to cross examine the witnesses has been rejected. 2. The factual matrix of the case is that the respondents have filed a release application under Section 21 (1)(a) of U.P. Act No.13 of 1972, bearing No.2 of 2010, Sarfaraz Hussain & another vs. Mohan Singh and another, seeking release of the suit property. 3. Petitioners moved an application under Section 34 read with Rule 22 of U.P. Act No.13 of 1972 and under Order 19 and Section 151 of C.P.C. It is averred that the release applicant no.1 was the Executive Engineer and he retired from the service, but he made an assertion that he has no source of livelihood and he is residing in a rented accommodation in Gomti Nagar, Lucknow (U.P.), therefore, a shop, in question, is required for his personal need, so that, he may start his business. He contended that the respondent no.1 has retired from the post of Executive Engineer and is getting a handsome pension and has also received heavy amount of GPF, etc. 4. It is stated that the respondent no.1 has claimed that he is residing in a rented accommodation. According to the petitioners, the respondent no.1 is having own house in Gomti Nagar, Lucknow (U.P.). Since the false averments have been made in the release application, therefore, the petitioners be permitted to cross examine the respondent no.1. Respondents have filed their objection stating therein that the respondent no.1 got retired from the post of Executive Engineer without pension as there is no provision of pension in the department. The amount so received by respondent no.1 on his retirement is not sufficient for catering the need of the family. Thus the shop, in question, is required for his need. The respondent no.1 admits that he is having the passport and ration-card. Thus there is no requirement to cross examine him. 5. The amount so received by respondent no.1 on his retirement is not sufficient for catering the need of the family. Thus the shop, in question, is required for his need. The respondent no.1 admits that he is having the passport and ration-card. Thus there is no requirement to cross examine him. 5. The learned Prescribed Authority vide impugned order dated 05.06.2017 rejected the application for the reason that the release applicant has to prove its case and there is no occasion to allow the application for cross examination. 6. Heard learned counsel for the parties and perused the material brought on record. 7. A perusal of the record would depict that the petitioners have come with the definite case that the respondent no.1 is not disclosing the correct details of his retirement, therefore, the cross examination is necessary. Per contra, learned counsel for the respondents would submit that there is no illegality in the order passed by the court below. 8. Having considered the rival submissions of learned counsel for the parties and on perusal of the material available on record, this Court is of the view that the respondent no.1 has not made correct statement in his affidavit and has concealed some material facts in the release application. It is true that burden lies upon the person who asserts it but the fact remains that the Court should not permit a person to suppress some material fact. Thus to bring the truth on record the cross examination of respondent no.1 is necessary, but the court below did not consider this aspect of the matter and commit illegality in rejecting the application for the reason that the petitioners have to prove their case. Consequently, the impugned order dated 05.06.2012 is liable to be quashed. 9. In view of the findings recorded as above, the impugned order dated 05.06.2012 is set aside. The application paper no.42(C) is allowed. The petitioners are permitted to cross examine the respondent no.1. Since the release application is pending since 2010, the learned Prescribed Authority shall make an endeavour to decide the release application expeditiously in accordance with law. 10. In view of the above discussions, the present petition stands disposed of.