S.C.Verma - (1.) IN the present case the order of the Prescribed authority dated 20th November, 1991, rejecting application for permission to cross examine the witnesses have been challenged.
(2.) AN application under section 21 of the U. P. Act No. 13 of 1972 was filed by the respondent no. 3 for the release of shop no. 29/32 New Market, Rajpur road, Dehradun. The tenant petitioner filed written statement denying the allegations made in the release application. During the pendency of the release application the tenant moved an application for permission to cross examine the applicant landlord. The grounds taken in the application are that the affidavit of respondent no. 3 is misleading and does not disclose true facts and the true facts can come before the court only by cross examination of witnesses. It was further stated that in the affidavit it has been alleged that the respondent no. 3 never let out the shop to 'Rama Sari Printers', where as one Surendra Kumar was the tenant in the shop and was doing buisness under the name 'Rama Sari Printers'. The correct facts are required to be ascertained which would be possible only by cross examination. This application in detail was considered by the learned Prescribed authority, who has come to the conclusion that for none of the reasons stated in the application the cross examination of respondent no. 3 who had filed the affidavit, would be necessary. Learned Prescribed authority has given detailed and correct reasons which established that the averments made in the affidavit can be controverted by filing counter affidavit or by such evidence which the parties can file. According to the learned Prescribed authority this is not a fit case in which the facts can be illusidated only by cross examination of the witnesses and not otherwise. Learned counsel for the petitioner argued before me that for illusida- tion of correct facts and to to test the varacity or creditability of witnesses it is necessary to cross examine the witnesses. According to him the right of cross examination should be given as a rule and not as an exception, meaning thereby that cross examination of witness should be refused only in exceptional cases. In support of his argument, learned counsel for the petitioner placed before me the decision Ramlal v. Prescribed authority, 1982 (Vol, I) ARC 449, Ashfaq Ahmad v. Prescribed Authority, 1987 ARC (Vol. 1) 356, Assan Das v. Prescribed Authority, 1981 ALJ (NOC) 7, Abdul Hamid Khan v. Majidul Hasan, 1975 ARC 398. Before I deal with the argument of the learned counsel for the petitioner in the context of the cases cited above, it can not be disputed that there is no absolute bar to cross examine the witnesses. The only point of difference is as to whether this power is to be exercised in general manner or only in exceptional cases in which the facts and circumstances of the case require.
(3.) I have carefully seen the reasons given in the impugned order by which the learned Prescribed authority has refused to exercise this power. In my opinion the learned Prescribed authority has correctly on the basis of facts and circumstances of the case and the reasons stated in the application to cross examine the witnesses, come to the conclusion that it is not necessary to cross examine respondent no. 3, for the averments made in the affidavit. I am in full agreement with the law laid down by Hon. S. D. Agrawala, J. in the case Smt. Gulaichi Devi v. Prescribed Authority, 1989 Vol.-2 ARC. The present proceedings under U. P. Act No. 13 of 1978 are to be adjudicated with in the frame work of the provisions of section 34 of the Act alongwith the rule 22 of the rules framed thereunder. The authority exercising the powers under the provisions of the Act which is self contained code have to decide the same expeditiously. The authorities have to decide the proceedings on the basis of evidence received on affidavit. The oral evidence is not contemplated under these provisions but there is no specific bar as the power has been given to the authorities to summon and enforce the attendance of any person and examine the said person on oath. The same applies with regard to cross examination of witnesses. Even the provisions of order 19 rule-1 requires that the court may for sufficient reasons either on its own accord or on application of the party, for bonafide reasons may permit cross examination of the witnesses. In any view of the matter, each case has to be examined on the basis of individual facts and the reasons on the basis of which this power is to be exercised. No doubt the power is to be exercised sparingly and in exceptional cases only if the facts alleged in the affidavit can not be controverted or rebutted by affidavit or evidence. The cases reported in 1982 Vol. I ARC 449 and 1987 (1) ARC 356, have been considered in the aforesaid decision. From none of the cases cited by the learned counsel for the petitioner it could be inferred that right of cross examination of witnesses can be exercised as a general rule and not on the basis of facts and circumstances of each case. T. The order dated 20th October 1990 doss not suffer from any illegality or infirmity. The petition is devoid of merits and is accordingly dismissed.;