By means of this writ petition, the petitioner / tenant has sought for writ in the nature of certiorari, quashing the order dated 16.11.2011 passed by learned Judge, Small Causes Courts (Prescribed Authority) in P.A. case No. 5 of 2010 and for issuance of writ in the nature of mandamus commanding the landlady (O.P. No. 2) to produce all the five witnesses for cross-examination.
Heard learned counsel for both the parties and have gone through the records.
Brief facts, relevant for the purposes of deciding this writ petition are that O.P. No. 2 is admittedly the landlady of the disputed premises, of which the petitioner is the tenant. The landlady moved application under Section 21 (1) (a) of U.P. Act. XIII of 1972 (hereinafter referred to as "the Act"). The petitioner (tenant) filed written statement and both the parties filed affidavits, in evidence and the case was fixed for hearing of arguments. The landlady (O.P. No. 2) filed evidence of five witnesses. After a lapse of about a year, the tenant moved application under Section 34 (1) (a) of the Act for cross-examination of all the five witnesses, which has been mentioned that the landlady has filed her affidavit on 11.08.2010. Counter affidavit and Rejoinder Affidavits were exchanged between the parties. In the application paper No. 37 C, the tenant, who is the petitioner before this Court has submitted that the landlady is not in the need of the shop, in question and she has concealed very important facts about ownership of her properties as she is the richest person in respect of the landed and built properties in Lucknow, especially in Hazratganj area. All the allegations contained in application paper No. 37 C are vague and just to delay the disposal of the case.
Though, there is a provision to permit cross-examination of the deponent, but this power has to be exercised only when such cross-examination is absolutely necessary. The party, seeking such permission has to show reasons for cross-examination.
While praying for cross-examination, the party seeking cross-examination must show something extraordinary, which cannot be rebutted by the counter affidavit. In cases, under the Act, where the legislature has specifically provided that the evidence is to be led through affidavits, the shifting from normal course must be based upon cogent reasons.
A Division Bench of this Court in Khushi Ram Dedwal v. Additional Judge, Small Causes Court/Prescribed Authority, Meerut and Ors. [ARC 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 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."
In the State of Jammu and Kashmir and ors. v. Bakshi Gulam Mohammad and another [AIR 1967 Sc 122], the Hon'ble Apex Court has observed that the primary objective of the Act is expeditious disposal of cases. It may be surrendered if the parties are permitted to lead oral evidence.
In the case of Smt. Gulaicha Devi v. Prescribed Authority (Munsif) Basti and another [1989 (1) ARC 407], 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 one months."
In Kripal Singh v. Prescribed Authority, Haldwani, District- Nainital [1998 (1) ARC 334, the same view has been reiterated. In Fahmida Shoeb (Smt.) v. Kanhaiya Lal and another [2005 (2) ARC 764], this court has relied upon the authority has laid down in Gulaicha Devi's case (supra), and has reiterated the same view, which is as under;-
"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 fit necessary in the interest of justice cross-examine a particular deponent of an affidavit, but it has to be very sparingly exercised in very 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."
In view of the law as discussed above, it is clear that the proceedings under Section 21 (1) of the Act are of summary nature, by which the prescribed authority holds an enquiry which have to be dealt with.
The impugned order is perfectly in accordance with law on the point. The learned Prescribed Authority has rightly observed that vague application has been given, by which all the five witnesses have been sought to be examined and the application has been moved at the stage of arguments, after a lapse of a considerable period just to delay the disposal of the case which deserves to be decided within two months as provided by Rule 15 (3) of the rules framed under the Act.
The present application has been given by the petitioner with an intent to delay the proceedings and the tenant has dragged the landlady into the controversy up to this Court.
In view of the above, the writ petition is dismissed.
Order Date :- 30.11.2012 Nitesh