ASHOK KUMAR Vs. STATE OF UTTARAKHAND
HIGH COURT OF UTTARAKHAND
STATE OF UTTARAKHAND
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KALYAN JYOTI SENGUPTA, J. -
(1.) THIS revisional application under Article 227 of the Constitution
of India has taken out against the impugned judgment and order dated 4th
September, 2012 passed learned Civil Judge (Senior Division) Roorkee,
District Haridwar by acting as a Prescribed Authority u/S 34 of the U.P.
Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972
(hereinafter said Act) which has been adopted by this State. The
respondents before me initiated proceedings for eviction under the said
Act on the ground amongst others bonafide requirement for their own use
and occupation. The above proceedings were contested by the applicants.
The respondents have filed their affidavits in order to prove case of the
respondents before the learned court below. The petitioners before me
filed application u/S 34 of the said Act and Rule 22 read with Order 19
Rule 1 and 2 and Section 151 of the C.P.C.
(2.) THIS applicant basically prayed before the learned Court below for cross examining the deponents of those affidavits affirmed to testify
oral accounts of the facts as well as documents. The learned trial Judge
has rejected the said application on the ground that where the evidence
is required to be taken on affidavit, there is no scope for cross
examination. The learned trial Judge has also viewed that this sort of
application is filed only to delay and procrastinate the proceedings.
(3.) LEARNED counsel for the petitioners submits that the learned Court below should have exercised discretion by allowing his clients to
cross examine under Order 19 Rule 2 of the C.P.C. which has been adopted
by Section 34 of the said Act of 1972. He says in this matter registered
will is sought to be proved and adduced before the learned court below in
order to prove ownership of property in question. According to him, will
is required to be proved before it is accepted as a genuine document.
Affidavit evidence is not sufficient to establish genuineness of the
will. Whether the will is genuine or not, at least two persons, namely,
one attesting witness and propounder or executor, if there be in the
will, will have to be cross examined. The testamentary capacity,
execution and attestation of the will are required to be proved and this
can only be proved not only by evidence in chief but in cross examination
as well. Oral cross examination is required in order to see veracity of
the evidence sought to be proved by way of affidavit. Attesting witness
is required in order to prove lawful and valid will. This apart,
documents are also required to be examined as far as genuineness and
veracity are concerned. Therefore, it is a fit case where discretion
should have been exercised under the aforesaid provision.
The learned counsel for the respondents submits that this application is nothing but a calculated attempt to delay hearing of
eviction suit. While supporting the judgment, he says that right of cross
examination emanates basically from the Indian Evidence Act, 1872, and
this Act has no application so far this proceeding is concerned. When the
Court below exercised the discretion on given facts and circumstances,
the revisional Court should not substitute its own discretion. If this
cross examination is allowed, there will be no end of the matter and the
proceedings will never be concluded logically.;
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