Heard Sri Pritish Kumar, counsel for the petitioner, Sri Manish Kumar as well as Sri Bireshwar Nath, on behalf of opposite parties.
Facts in brief of the present case are that opposite party Nos. Nos. 2 and 3 filed an application under Section 21(1)(a) of U.P. Act 13 of 1972 registered as PA. Case No. 10 of 2005 before Prescribed Authority/Additional Civil Judge (Sr. Div.), court No. 14 Rae Bareli.
On 29.03.2010 Smt. Katoon Begum had filed her own affidavit, (registered as paper No. Ga107). Petitioner who is the tenant was not satisfied with the contents of the said application/affidavit, moved an application on 19.08.2010 for cross examination of Smt. Khatoon Begum/O.P. No. 2, objections were filed on behalf of the O.P. No. 2 on 25.08.2010.
O.P. No. 1 rejected the same by order dated 23.11.2010. Hence the present petition has been filed before this Court.
Sri Pritish Kumar, learned counsel for the petitioner while challenging the impugned order dated 23.11.2010 submits that the same is totally illegal, arbitrary in nature in the matter as due to contradictory in affidavits filed by the respondents, it is necessary to cross examine the O.P. No. 2, whether she is landlady or not. In support of his argument he rely on the judgments namely:-
1. Khushi Ram Dedwal Vs. Additional Judge, Small Causes Court/Prescribed Authority, Meerut and others, 1997 (2) ARC 674
2. Mahesh Chand Vs. Additional Civil Judge (S.D.) Bulandshahar/Prescribed Authority and another 2005 (59) LR 17.
Sri Bireshwar Nath who has put appearance on behalf of O.P. Nos. 2 and 3 on the other hand supported the order under challenge and submits that the application moved on behalf of petitioner/tenant for cross examination of O.P. No. 2 is wholly misconceived and rather the same has been only in order to linger the matter. He further submits that on the basis of affidavits which are on record it is clearly established that O.P. No. 2 is the landlady of the shop in question. In support of his argument he relied on the judgment passed in the case of Jaya Kalia (Smt. Vs. Smt. Manju Agarwal and another 2009 (3) ARC 799.
I have heard the counsel for the parties and gone through the record.
So far as the factual matrix if the present case is concerned, it is not disputed between the parties that the application under Section 21(1)(a) of U.P. Act 13 of 1972 has been moved in the year 2005. Thereafter, on 13.03.2006, an application for cross examination of O.P. No. 2 has been moved by the tenant/petitioner on 13.03.2006, rejected by impugned order dated 23.11.2010 after giving the reasons therein.
In order to resolve the controversy involved in the present case, it is necessary to have a glance to the relevant provisions proved under the U.P. Act 13 of 1972 which governs that field in question i.e. Section 34(1) U.P. Act 13 of 1972 and Rule 22 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, which are as under:-
Section 34 - Power of various authorities and procedure to be followed by them:- (1) The District Magistrate, the prescribed authority or any[appellate or revising authority] shall for the purposes of holding any inquiry of hearing [any appeal or revision] under this Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 (Act No. V of 1908), when trying a suit, in respect of the following matters namely,--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) receiving evidence on affidavits;
(c) inspecting a building or its locality, or issuing commission for the examination of witnesses or documents or local investigation;
(d) requiring the discovery and production of documents;
(e) awarding, subject to any rules made in that behalf, costs or special costs to any parts or requiring security for costs from any party;
(f) recording a lawful agreement, compromise or satisfaction and making an order in accordance therewith;
(g) any other matter which may be prescribed.
Rule 22 - Powers under the Code of Civil Procedure, 1908 [Section 34(1)(g)]--- The District Magistrate, the prescribed authority or the appellate authority shall, for the purposes of holding any inquiry or hearing any appeal or revision under this Act, shall have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters namely,--
(a) the power to dismiss an application, appeal or revision for default and to restore it for sufficient cause:
(b) the power to proceed ex parte, and to set aside, for sufficient cause, and order passed ex parte:
(c) the power to award costs and special costs to any successful party against an unsuccessful party:
(d) the power to consolidate tow or more cases of eviction by the same landlord against different tenants:
(f) the power referred to in sections 151 and 152 of the Code of Civil Procedure, 1908 to make any order for ends of justice or to prevent the abuse of process of the authority concerned.
Accordingly, Clause(a) of Section 34(1) proved for summoning and enforcing the attendance of any person and examining on oath. Clause (b) provides for receiving evidence on affidavits. Rule 22 of the Rules framed under the Act provides that the District Magistrate, the Prescribed or the appellate, or Revising Authority shall, for purposes of holding any inquiry or hearing any appeal or revision under the Act, shall have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 when trying a suit, in respect of the matters enumerated therein. Rule(f) provides the power referred to in Sections 151 and 152 of the Code of Civil Procedure, 1908 to make any order for the ends of justice or to prevent the abuse of the process of the authority concerned.
Section 34 of the Act or Rule 22 of the Rules does not specifically provide that Order XIX, Rule 1 or Rule 2 of the Code of Civil Procedure will be applicable. As Section 34(1)(b) of the Act confers the power on the authorities concerned to receive evidence on affidavits, the principle which is applicable under Order XIX, Rule 1 of the Code of Civil Procedure can be made applicable which empowers the court to summon a deponent of an affidavit for cross-examination.
Section 34(1)(b) of the Act permits the authorities under the Act to receive evidence on affidavits and clause(a) confers power on the authorities for summoning and enforcing the attendance of any person and examining him on oath. The cross-examination of a deponent of a affidavit is thus not excluded. The authorities have power to permit any party to cross-examine the deponent of the affidavit. The exercise of power to permit cross-examination should be on the principle as laid down under Order XIX, Rule 1 of the Code of Civil Procedure, as amended by U.P. Act No. 57 of 1976 which came into force on 01.01.1977. The proviso to Rule 1 of Order XIX was substituted by U.P. Act No. 57 of 1976. Substituted proviso reads as follows :
"Provided that if it appears to the Court, whether at the instance of either party or otherwise and whether before or after the filing of such affidavit, that the production of such witness for cross-examination is necessary and his attendance can be procured, the Court shall order the attendance of such witness, whereupon the witness may be examined, cross-examined and re-examined."
The court has been given power under the said proviso for production of the deponent for cross-examination. If it is necessary. The provision itself it clear that the Court has discretion to permit for cross-examination and such discretion should be exercised only when cross-examination is necessary. The necessity for cross-examination will depend upon the facts and circumstances of each case. If an application is filed by a party for cross-examination of a deponent by an affidavit, he must give reasons why cross-examination is necessary.
It is not in every case that once an 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 affidavits can be testes by cross-examination but unless it is established that the veracity of facts states in the affidavit is necessary to be tested by cross-examination, the party must give reasons as to which particular fact and under what circumstances and for what reasons such cross-examination is necessary in the context and facts and circumstances of the case. U.P. Act No. 13 of 1972 applies for determining certain rights of the landlord, tenant and such other persons who claim the benefit under the provisions of the said Act. This Act itself provides the manner in which the evidence is to be taken by the parties concerned. The purpose of the enactment of any of the provisions has to be taken into account while permitting a party to cross-examine the deponent of an affidavit.
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 for 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.
A Division Bench of this Csourt in Assam Dass Vs. Prescribed Authority/Civil Judge, Mohanlalganj, Lucknow and another, 1996(2) A.R.C. 92, it was held that if the Prescribed Authority is satisfied that the 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."
In the case of Khushi Ram Dedwal (Supra) , this Court 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 case of Mahesh Chand Vs. Additional Civil Judge (S.D.) Bulandshahar/Prescribed Authority and another 2005 (59) LR 17, this Court has held that:-
"Thus, I find that the authority under the Act has power to summon the deponent for the purpose of cross-examination, if it is necessary. No doubt the Court/authority has discretion to permit for cross-examination but such discretion should be exercised only when cross-examination is found necessary. The necessity for cross-examination will depend upon the facts and circumstances of each case."
In the case of Jaja Kalia (Smt. Vs. Smt. manju Agarwal and another 2009 (3) ARC 799, this Court held as under:-
"I have considered the submissions made on behalf of the petitioner and perused the record. In case the petitioner was aggrieved that the contents of the affidavit filed on behalf of the landlady are not correct, it can be rebutted on the basis of the affidavit in rebuttal. There was no occasion to cross-examine and the provisions of Civil Procedure Code are not strictly applicable. Therefore, it is unnecessary to the Court to allow the application for cross-examination, if the petitioner is of the opinion that the contents are incorrect and false, the petitioner on the basis of the relevant document to be filed before the Prescribed Authority can prove regarding the false statement and incorrect facts stated in the affidavit. In my opinion, the Court has rightly rejected the same. If the petitioner ultimately is aggrieved by the said action of the respondents, she can challenge it before the appellate Court or before the revisional Court as the case may be. "
From the above said authorities, the provision of law which emerges out is that the parties is to be permitted to cross examine on the principle of natural justice cannot be accepted in every case oral examination in all case cannot be permitted and the same is left to the sole discretion of the court below whether the same is necessary or not. Looking into the circumstances of each and every case.
In the matter in question while dealing with the application moved by the petitioner for cross examination, the court below has given a categorical finding of fact that the same is not necessary and further the same has been moved with a mala fide intention only to delay the matter pending since 2005 and also a finding is given that there is no necessity whatsoever for cross examination of O.P. No. 2/Smt. Khatoon Begum, as such I do not find any illegality or infirmity in the impugned order which is under challenge in the present writ petition.
For the foregoing reasons, the present writ petition is dismissed and further O.P. No. 1 is directed to decide the matter within a period of six months from the date of receiving of certified copy of this order.
Order Date :- 28.1.2011 Ravi/