By means of this writ petition the petitioner has prayed for issuing a writ of certiorari quashing the order dated 3rd September, 2009 passed by the Prescribed Authority/Civil Judge (Senior Division), Etah in P.A. Case No. 2 of 2004, Tufail Ahmad and another Vs. Dr. Nawab Ahmad by which the application of the respondent filed under Section 34 (1) of Act No. 13 of 1972 has been allowed by the prescribed authority.
Sri Swapnil Kumar, learned counsel for the petitioner while assailing the impugned order has submitted before this Court that although it is the discretionary power of prescribed authority to permit the cross-examination of a witness or a person who has filed an affidavit on oath but this power has to be exercised in judicious manner. In his submissions the power should not be exercised in a casual manner without recording any reason. He has further submitted that while passing the impugned order no reason whatsoever has been recorded by the prescribed authority for allowing the application of the respondent. Hence the impugned order deserves to be quashed. In support of his submissions he has placed reliance on the division bench decision of this Court reported in 1997 (2) ARC 674 Khusi Ram Dedwal Vs. Additional Judge, Small Causes Court/Prescribed Authority, Meerut and others. Refuting the submissions of Sri Kumar, Sri Manvendra Nath Singh, learned counsel for the respondent no. 2 has submitted that power of the prescribed authority to pass an order for cross-examination of a witness is a positive exercise of discretion of the court below and this should not be interfered with under Article 226 of the Constitution of India. In his submissions writ petition deserves to be dismissed.
Heard learned counsel for the parties. Both the counsel have agreed for final disposal of the case.
It appears that the respondent has filed an application under Section 34 (1) of U.P. Act No. 13 of 1972 for cross-examination of the petitioner's witness and the present petitioners have filed their objection to the said application. The prescribed authority after considering the same has passed the impugned order holding that looking into the facts and circumstances of the case, the cross- examination is necessary and allowed the application on payment of Rs. 500/- cost to the petitioners.
In the present case, although the learned judge of the court below has discussed the case of the parties but while recording the finding no reason whatsoever has been assigned except that cross examination is necessary. In the case of Khushi Ram Dedwal (supra) this Court has observed as under. The Court has been given power under the proviso to Rule 1 of Order XIX of the Code for production of the deponent for cross-examination, if it is necessary. The provision itself is 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 o f 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 tested by cross-examination but unless it is established that the veracity of facts stated 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.
From the perusal Division Bench decision of this Court it transpires that although to grant permission to cross-examine a witness is discretionary power of the Court but that discretion has to be exercised judicious manner after recording reasons.
In view of that, I find that the impugned order cannot be sustained as while passing the impugned order permitting the cross-examination of petitioner's witness the prescribed authority was under an obligation to record the reasons and the order should not have been passed in a routine manner as the proceedings under Act No. 13 of 1972 are not like regular proceeding of a suit.
In view of that, the writ petition succeeds and is allowed. The impugned order dated 3.9.2009 is hereby quashed. The matter is remanded back to the prescribed authority to pass an appropriate order on the application of the respondent (defendant/tenant) in accordance with law. Order Date :- 11.1.2010 Pratima