Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 5626 of 2018 Petitioner :- Dr. Manoj Kumar Tiwari Respondent :- Dr. Rajan And Another Counsel for Petitioner :- Ajay Kumar Sharma
Hon'ble Manoj Kumar Gupta,J.
The instant petition has been filed invoking supervisory jurisdiction of this Court under Article 227 of the Constitution challenging an order dated 16.07.2018 passed by Appellate Authority in Misc. Appeal no. 20 of 2017 rejecting application filed by the applicant, who is appellant in the appeal, for summoning opposite party No. 1 Dr. Ranjan Agarwal, so that he could be subjected to cross-examination.
A release application under Section 21(1) (a) of U.P. Act No. 13 of 1972 was filed by the respondents for release of a shop in the tenancy of the applicant setting up their personal need. The Prescribed Authority, by judgment dated 20.12.2016 allowed the release application holding the need of opposite party No. 1 to be bonafide and that in case the shop is not released, he would suffer greater hardship. Aggrieved by the said judgment, an appeal was filed by the applicant under Section 22 U.P. Act No. 13 of 1972 and which came to be registered as Misc. Appeal No. 20 of 2017. During pendency of the said appeal, the applicant filed an application 24-C2 for summoning opposite party No. 1 in the witness-box, so that he is subjected to cross- examination. According to the applicant, opposite party No. 1 had been residing at America after acquiring American citizenship and he is also gainfully employed in that country. Consequently, his need for shop is not bonafide. The Appellate Court has rejected the application by entering finding to the effect that it is not in dispute that opposite party No. 1 is presently residing and working in America. It has been observed that the question as to what would be the effect of the said fact on his need, shall be determined when the appeal is decided. Since, however, it is not in dispute that he is settled at America nor that he is engaged in medical profession at America, therefore, Appellate Court was of the opinion that no useful purpose would be served in summoning him to the witness-box for being subjected to cross-examination.
Counsel for the applicant submitted that the object of summoning opposite party No. 1 to witness-box, is to elicit various facts from him. It is urged that in case he is subjected to cross-examination. it would become clear, whether his need is bonafide or not.
This Court is unable to accept the submission of learned counsel for the applicant. Since it is not in dispute that opposite party No. 1 is residing in America since a longtime and is engaged in medical profession at America, therefore, it has rightly been observed by the Appellate Court that the effect of these admitted facts would be considered at the time of final judgement. Since there is no dispute regarding basic facts and therefore, in the opinion of the Court, no exception can be taken to the view expressed by the Appellate Court.
The petition is dismissed, accordingly.
(Manoj Kumar Gupta, J.) Order Date :- 20.8.2018 Darpan Sharma