Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 1825 of 2016 Petitioner :- Ram Dayal Varshney Respondent :- The Prescribed Authority Hathras And Another Counsel for Petitioner :- Pravesh Chandra Mishra Counsel for Respondent :- Vinod Kumar Agarwal
Hon'ble Vivek Kumar Birla,J.
Re-C.M. Restoration Application No. 8 of 2018
Heard Sri Manjul Mishra holding brief of Sri P.C. Mishra, learned counsel for the applicant/petitioner and Sri V.K. Agarwal learned counsel appearing for respondents. Cause shown is sufficient. This application is allowed. The order dated 03.07.2018 is recalled. The writ petition is restored to its original number.
Re: Writ Petition
Heard Sri Manjul Mishra holding brief of Sri P.C. Mishra, learned counsel for the applicant/petitioner and Sri V.K. Agarwal learned counsel appearing for respondents.
The present petition has been filed for setting aside the order dated 03.03.2016 passed by the Prescribed Authority rejecting the application paper no. 29 (Ga) filed by the tenant-petitioner herein for cross-examination of the witnesses of the landlord.
While entertaining the present petition following order dated 28.03.2016 was passed.
"Issue notice to the respondents.
The case shall be listed on the date fixed in the notice.
The counsel for the petitioner submits that u/s 34(1)(b) of U.P. Act No. 13 of 1972, the power of taking evidence on affidavit has been affirmed in the proceeding under the Act.
A Division Bench of this Court in Khushi Ram Dedwal vs. Additional Judge, Small Causes Court, 1997 (2) ARC 674, took the view that in view of Section 34(1), power has been given to summon any witness for his examination on oath, as such, the power to summon the deponent of the affidavit hhttps://10.10.0.10:12443/elegalix/Login.doas also been there, but the Prescribed Authority has illegally rejected the application of the petitioner by the impugned order.
The matter requires consideration.
Till the next date of listing, proceeding before the Court below may go on, but no final order may be passed. However, it is open to the petitioner to file a fresh application along with the judgment of this Court in Khushi Ram Dedwal's case (supra) before the Prescribed Authority, if he is satisfied then he may pass order in respect of the summoning, witness without being prejudiced with the order dated 3.3.2016."
A perusal of the above noted order clearly indicates that the contention of the learned counsel for the petitioner has been clearly noted.
Per contra, learned counsel appearing for respondents has supported the impugned order by submitting that under U.P. Act 13 of 1972 the petitioner has no right to cross examine and in the facts and circumstances of the case the application was rightly rejected.
Learned counsel for the respondents relied on judgments in the cases of Khushi Ram Dedwal Vs. Additional Judge, Small Causes Court/Prescribed Authority, Meerut and others 1997 (2) ARC 674 and Bitufelt Pvt. Ltd. (M/s.) Vs. Pradeep Kumar Gupta 2016 (3) ARC 89.
I have considered the rival submissions and have perused the record.
It is the settled law that the cross-examination under U.P. Act 13 of 1972 is not an absolute bar and the same cannot be permitted, however, only in the exceptional facts and circumstances of the case it can be permitted. A reference may be made in this regard in the Judgment of the Hon'ble Apex Court in the cases of Fiza Developers and Inter Trade Pvt. Ltd. Vs. AMCI (I) Pvt. Ltd. and others, 2009 (17) SCC 796 and Karam Hussain Khan Vs. Sayed Jafar Khan 2017(1) ARC 102.
On perusal of the impugned order I find that the court below has dealt with the application on merits extensively and found that no cross-examination of the witnesses of the petitioner who has filed the release application is required in the present case.
In such view of the matter, I do not find any legal infirmity in the order herein.
Petition is devoid of merits and is accordingly dismissed.
Order Date :- 12.9.2018 SKG