WPMS/1907/2022
2022 Latest Caselaw 3277 UK

                                            Reserved on: 28.08.2022
                                            Delivered on: 11.10.2022
 IN THE HIGH COURT OF UTTARAKHAND
                        AT NAINITAL
        ON THE 11TH DAY OF OCTOBER, 2022
                              BEFORE:
     HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


      WRIT PETITION (M/S) No. 1907 OF 2022

BETWEEN:

Dr. Dinesh Kumar                                     .... Petitioner
      (By Mr. Siddhartha Singh, Advocate)


AND:
Smt. Kiran Suri                                      ... Respondent
      (By Mr. Aditya Singh, Advocate)



                            JUDGMENT

1. Petitioner is tenant in respect of a shop. He has challenged an order dated 02.07.2022 passed by learned Prescribed Authority/Senior Civil Judge, Haridwar in P.A. Case No. 10 of 2019. By the said order, petitioner's application under Section 34 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short "Act No. 13 of 1972") seeking cross examination of landlord's witnesses, was rejected.

2. Respondent sought release of a shop by filing an application under Section 21(1)(a) of Act No. 13 of 1972. Petitioner filed written statement in which he denied need of the landlord. Landlord filed his affidavit in support of contents of the release application and he also filed affidavits of Sri Krishna Kumar Suri, Smt. Neha, Sri Rahul Suri, Sri Hem Kumar Bhasin and Sri

Harpal Singh in support of his case. After filing of evidence through affidavits by the landlord, petitioner filed an application under Section 34 of Act No. 13 of 1972 seeking permission to cross-examine the persons who filed these affidavits. Landlord filed objection to the said application. Learned trial court rejected petitioner's application, vide order dated 02.07.2022. The said order is under challenge in this writ petition.

3. Learned counsel for the petitioner contends that learned Prescribed Authority was not justified in rejecting petitioner's application under Section 34 of Act No. 13 of 1972, as truthfulness of the statement made in affidavits, filed support of release application, can be tested only through cross- examination.

4. The impugned order is on record as Annexure- 1 to the writ petition. Learned Prescribed Authority has rejected petitioner's application by observing that plaintiff's evidence is closed and defendant has a right to adduce evidence, therefore, petitioner can contradict the averments made in the affidavits, in his reply affidavit.

5. This Court does not find any infirmity in the view taken by learned Prescribed Authority. Section 34 of Act No. 13 of 1972 confers certain powers upon Prescribed Authority, which are available to a Civil Court under the Code of Civil Procedure, which include the power of summoning and enforcing the attendance of any person and examining him on oath and receiving evidence on affidavits.

6. Proceedings under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 are summary in nature. Rule 15(3) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972

provides that every application for release filed under Section 21(1) shall, as far as possible, be decided within two months from the date of its presentation. The legislature did not provide that oral evidence is 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 delay the disposal of cases, although, Prescribed Authority in an appropriate case may permit cross-examination of witnesses. The necessity for cross-examination depends upon the facts and circumstances of each case. It is not that in every case once the application is filed for cross-examination, it has to be permitted as a matter of course. It is true that veracity of averments made in the affidavits can be tested by cross-examination, but unless it is established that veracity of facts stated in an affidavit is necessary to be tested by cross-examination, prayer for cross examination cannot be granted. The party must give reasons as to which particular case and under what circumstances, such cross-examination is necessary. In the context of each P.A. Case, the purpose of enacting Act No. 13 of 1972 has to be taken into account, while permitting a party to cross-examine the deponent of an affidavit.

7. A coordinate Bench of this Court in WPMS No. 172 of 2007, Raj Kumar Vs Om Prakash Sharma & others has held as under:-

"6. At the outset, it may be mentioned that from a reading of Section 34 of the Act read with Rule 22 of the Rules framed there-under, it is evident that the Prescribed Authority has to follow the procedure prescribed under Section 34 of the Act as also Rule 22 of the Rules framed under the said Act. The applications under Section 21 of the Act have to be decided on the basis of evidence led by the parties by filing affidavits.

Oral evidence is not contemplated under these provisions. No doubt, power has been given to the

authorities to summon and enforce attendance of any person and to examine him on oath. The intention of the legislative was that the matters pending before various authorities under the said Act should only be decided on the basis of affidavits filed in evidence by the rival parties. Section 34(1)(b) of the Act confers power on the authorities concerned to receive evidence on affidavits and 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 his cross-examination. The authorities have power to permit any party to cross- examine the deponent of the affidavit, but the exercise of this power should be on the principle as laid down under Order 19, Rule 1 of the Code of civil Procedure as amended by U.P. Act No. 57 of 1976. Thus, the Court has discretion to permit for cross-examination when such cross-examination is necessary for proper adjudication of the matter in dispute. If a party intends to cross- examine, he has to give necessary facts in the application as to why the cross-examination is necessary. Cross-examination cannot be ordered as a matter of course. It is for the Prescribed Authority to give reasons either for allowing or refusing the cross-examination. It can thus be inferred that discretion to permit cross- examination of deponent may be exercised when it is not possible for the party to contradict the fact by filing evidence on affidavit. I am fortified in my view by the Division Bench judgment of the Allahabad High Court in the case of Khushi Ram Dedwal v. Additional Judge, Small Causes Court/Prescribed Authority, Meerut and Ors. 1997 (2) A.R.C. 674 wherein it has been observed that "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." It was further observed in that "the legislature did not provide that oral evidence to be adduced in support of the case as contemplated under O. XVIII, Rule 4 Code of civil Procedure 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." In the case of Smt. Gulaicha Devi v. Prescribed Authority (Munsif) Basti and Anr. 1989 (1) ARC 407 it has been held that evidence in the matter of release application has to be filed in the shape of affidavit and normally the Prescribed Authority should not permit cross-examination of deponent. Such power to permit the cross- examination should be exercised in exceptional cases only and in such case, Prescribed Authority is required to give reasons. The Allahabad High Court in the Case of Smt. Fahmida Shoeb (Dead) v. Kanhaiya Lal (dead) and Anr. 2005 (61) A.L.R. 310 has held that it is a condition precedent that while allowing the application for cross-

examination, it is incumbent upon the Prescribed Authority to point out in the order exceptional circumstances which are necessary for such permission.

7. In the case at hand, the copy of application under Section 34 read with Rule 22 of the Rules framed under the U.P. Act No. 13 of 1972 and Order 19, Rule 1 Code of civil Procedure has been annexed as Annexure No. 3 to the writ petition. In this application the Petitioner, the main contention of the tenant is that the witnesses have not disclosed material facts especially the fact that the Applicant-landlords have released shop in another matter. It has also been contended that the landlords' witness Om Prakash has not given the details of assets and income in the affidavits. The acquaintance of the witnesses Rameshwar and Balkishan with the landlords has not been disclosed in the affidavits by the said witnesses. The learned Prescribed Authority in his impugned order has dealt with all the aspects and material factual position of the case came to the conclusion that the Petitioner-Opposite Party has not set out concrete and satisfactory reasons so as to entitle him to cross-examine the witnesses. The Prescribed Authority has also observed that it is open to the Petitioner- Opposite Party to controvert the statements on oath given by the landlords' witnesses by filing affidavits in rebuttal. The Prescribed Authority has not committed any manifest error by not allowing the cross-examination of the deponents of affidavits to the Petitioner-tenant. The Prescribed Authority has recorded reasons for refusing the permission to cross-examine the deponents in so many words in the impugned order. Apart from above, it is significant to mention here that the primary objective of the U.P. Act No. 13 of 1972 is expeditious disposal of the cases. I do not find any perversity or any manifest error of law in the order dated 1-3-2007 passed by the Prescribed Authority in rejecting the application, paper No. 59-C, moved by the Petitioner for permission to cross-examine the deponents."

8. This Court is in respectful agreement with the view taken by coordinate Bench of this Court in the aforesaid judgment. Thus, this Court is not inclined to interfere with the impugned order, while exercising supervisory jurisdiction under Article 227 of the Constitution.

9. Accordingly, writ petition fails and is hereby dismissed.

(MANOJ KUMAR TIWARI, J.) Aswal