Shitla Prasad Srivastava, J.@mdashThis petition under Article 226 of the Constitution of India has been filed for quashing the order dated 2895 passed by the Prescribed Authority and for a mandamus directing the respondents to permit the petitioner to crossexamine the respondent No. 2 (applicant).
2. Heard learned Counsel for the parties.
3. It appears that an application for release under Section 21 of letting (1)(a), U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972, (hereinafter referred to as the Act) only was filed against the petitioner showing her need for release. A reply to the application by way of written statement was filed denying the allegations mentioned in the application. Respondent No. 2 filed an objection in support of her case. The petitioner filed an application dated 5795 to crossexamine the applicant. This application was rejected by the impugned order. The petitioner has challenged this order.
4. Sri Rajesh Tandon learned Counsel for the petitioner has urged that in view of the provisions of Section 34 of the Act, the Prescribed Authority has power to summon the witness and if such application was filed the Prescribed Authority should have permitted the petitioner to crossexamine the applicant who had filed the affidavit. His further contention is that as per Section 34 of the Act certain provision of C.P.C. are made applicable and the Court has discretion to summon the witness for crossexamination under Order XIX, Rule 2 of the C.P.C. Therefore, the application of the petitioner should not have been rejected by the Prescribed Authority. He has placed reliance on a decision of this Court in Writ Petition No. 4097 of 1995 Sri Khushi Ram v.Addl. Judge Small Causes connected with Writ Petition No. 8126 of 1995, Mohammad Hasnain v. 1st Addl. Civil Judge & Ors. delivered by a Division Bench of this Court on 17797 and also placed reliance on a judgment, dated 21180 in Writ Petition No. 3076 of 1979; Assan Dass v. The Prescribed Authority & another. He has also placed reliance on a case reported in 1982 ARC 449, RangLalv. Prescribed Authority &Anr. His contention on the basis of this judgment is that the application should be considered on merit and if it is to be rejected then reason should be recorded. He has led much emphasis on a portion of the judgment dated 17797 wherein it is mentioned that provisions of Order XIX, Rule 1 has used the words "crossexamination is necessary". The effect of this provision was considered by the Division Bench of this Court in Assan Dass v. The Prescribed Authority and another/Civil Judge, Mohan Lalganj, Lucknow and another, 1996 (2) ARC 92, and it was held that if the Prescribed Authority is satisfied that the crossexamination is necessary, it can allow a party to crossexamine the deponent of an affidavit. His contention is that the Prescribed Authority should have considered whether this is a fit case in which crossexamination is necessary or not. His further argument is that as the Court has rejected the application on the ground that it is not maintainable and if permitted it will cause delay in the matter, therefore, it shall be presumed that the Court has not applied its mind which was only considering the delay part of the proceeding. He has also submitted that in view of 1982 ARC 449 (supra), the application for crossexamination of the witness can be filed.
5. In reply to the arguments made by learned Counsel for the petitioner, Sri A.K. Sand learned Counsel for the respondents has also placed reliance on the same judgment of the Division Bench dated 17797 and has led emphasis on the last two paras of the judgment which is quoted herein below:
"It may be that when the case is being decided a party files an application for crossexamination only to delay the proceedings. The court has to examine in each case as to whether on the facts and circumstances of the case, crossexamination is necessary and the application filed for crossexamination is bona fide. If the matter relates as to the extent of the accommodation or the matter which could be verified on inspection, the crossexamination will be hardly relevant. If the question arises regarding title of the property which can be decided on the basis of the documentary evidence, the crossexamination will not be relevant as the fact can be proved by documentary evidence which can be annexed with the affidavit."
His contention is that as in this case the application was contested by the petitioner by filing written statement and thereafter when the evidence was led by way of an affidavit of the respondents and some facts were stated on oath in the affidavit, the petitioner had a right to file counteraffidavit, rebutting and controverting those facts and if after that there is any thing which is not clear then the party may apply for crossexamination and the Court has discretion to allow the crossexamination keeping in view the facts and circumstances of a particular case and if the Court gives reason for permitting the party to crossexamination the witness who has filed his affidavit, then in view of the judgment of the Division Bench the Prescribed Authority is justified. His further contention is that as per judgment of the Division Bench (supra) the discretion lies with the Court to consider the evidence in each case according to the facts and circumstances of that case and in this case the reasons have been recorded and the petitioner has not controverted the facts by way of filing a counteraffidavit. The Prescribed Authority has rightly rejected the application.
6. After hearing learned Counsel for the parties and going to the orders and the facts and circumstances mentioned in the petition and counteraffidavit etc. I am of the view that the point in controversy to crossexamine the witness has been decided by this Court on 17797.
The relevant portion of the judgment is quoted here as under:
"The principle that a party is to be permitted to crossexamine on the principle of natural justice cannot be accepted in every case. Oral examination in all cases is not contemplated. Even in disciplinary inquires in exceptional cases oral evidence may not be insisted upon as held in Him Nath Mishra v. Principal, Rajendra Medical College, AIR 1973 SC 1260 and State of Haryana v. Rattar Singh, AIR 1977 SO 15 i 2. If a party wants to crossexamine, he has to give the necessary facts in the application as to why the crossexamination is necessary. The Prescribed Authority will give the reasons either for allowing or refusing the crossexamination. 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 crossexamination of a deponent of an affidavit only when it is necessary in the case."
From the decision of the Division Bench it is apparent that the Prescribed Authority under the Act has full power to exercise its discretion in allowing or rejecting the application but he has to give reasons for the same. From the perusal of the order in question it is apparent that he has given reasons for rejecting the application and as special reason given by the Prescribed Authority is that the petitioner has not given any evidence in rebuttal controverting the allegation contained in the affidavit of the applicant and he has still time for the same.
7. After considering the arguments of learned Counsel for the parties and after seeing the judgment dated 2895 I am of the view that is no illegality in the order passed by the Prescribed Authority. Therefore, the writ petition fails and it is dismissed but there will no order as to costs.
