R. R. K. Trivedi, J. - (1.) IN this writ petition a caveat has been filed by Sri Swapnil Kumar on behalf of respondents no. 3, 4 and 5.
(2.) THIS writ petition has been filed challenging order dated 9th October, 1992 by which the application of the petitioner for cross examining the witnesses of landlord respondents no. 3 to 5 has been rejected. Heard learned counsel for the petitioner and perused the impugned order and other materials on record. A perusal of the order of the Prescribed Authority shows that the identical application was riled by petitioner which was rejected by Prescribed Authority on 7th January 1992. The order of the prescribed Authority was challenged before this court in Civil Misc, Writ petition No. 0336 of 1991 which too was dismissed on 18th June, 1992. The case has been reported in 1992 (2) ARC 253. Another application paper no.l52-C was filed by petitioner for summoning witnesses who filed affidavit on behalf of applicant respondents no. 3 to 5. The names of the witnesses have been disclosed In the earlier application and in the subsequent application. The Prescribed Authority has rejected the application saying that the earlier order is res-Judicata for purposes of this application and petitioner cannot be permitted to raise the same question as order dated 7th January 1991 passed by Prescribed Authority earlier has been upheld by this Court. The learned counsel for the petitioner has, however, submitted that the circumtances have changed and petitioner was entitled to make a fresh application for cross examination of the witnesses who filed affidavits in support of the case ?f the respondents no. 3 to 5. Learned counsel has also submitted that during the progress of the proceedings the petitioner at any stage may request for cross-examination of any witness and that should be decided on merit. In my opinion, to avoid multiplicity and delay of the proceedings such a course as suggested by the learned counsel for the petitioner cannot be approved. Honourable Supreme Court in case of Saiyadhyan Ghosal v. Smt. Deorajin Devi, AIR 1960, SC 941, has specifically held that the order passed during the progress of the case may be resjudicata for purposes of both suits and she psoceedings. The prescribed Authority has followed the same view while rejecting the applications. Learned counsel for the petitioner placed before me certain facts to show that the circumstances had changed and application for an opportunity to cross-examine moved on behalf of the petitioner was a genuine demand. The subsequent changes are mentioned which came on record by amendment in the written statement, which was sought through application, Annexure-12 to the writ petition and the replication filled on behalf of respondent no. 3 to 5. A perusal of application, annexure-12, moved on behalf of the petitioner tor amendment of the written statement shows that he mentioned certain facts regarding his hardship which were replied by filing a replication by landlord respondents. All these facts, in my opinion were such which could not be utilised by petitioner to reopen the issue of cross examination of the witnesses, which was already concluded by order of this Court.
(3.) LEARNED counsel for the petitioner then submitted tint affidavits cannot be read as evidence and for this placed reliance on a case of Smt. Sudha Devi v. M. P. Narayanan, AIR 1988 SC 1381 where Honourable Supreme Court has observed that normally affidavit are not evidence in proceedings and they may form part of the record only when necessary permission was given to prove the fact by means of affidavit as provided in Order XIX of Civil Procedure Code. In my opinion, the case relied on by the learned counsel is not helpful in the present petition, which arises out of proceedings under U. P. Act no. 13 ef 1972, a special law dealing with tenancy rights. The Legislature with an object to provide suits and prompt reliefs in these matters permitted a departure from the normal rule of receiving evidence from parties in shape of oral and documentary evidence and permitted authorities to accept evidence in shape of affidavits as provided under section 34 (1) (b) of the Act. In the case relied on by the learned counsel for petitioner is clearly distinguishable and cannot be applied in the present case. Learned counsel for the petitioner then submitted that against impugned order dated 9th October, 1992 petitioner tiled a revision before the learned District Judge, Etah which has been rejected by order dated 23-11-1992 as not maintainable. Learned counsel for the petitioner has submitted that the revision has been wrongly rejected as it was maintainable in view of the observations by a Division Bench of this Court in judgment dated 17th August, 1977 while deciding Civil Misc. Writ .petition no. 889-A of 1977 (reported in 1977 U. P. RC 467). I have perused aforesaid Judgment which has been filed as Annexure-16 to the writ petition, and from perusal it appears that it was by some inadvertent typing mistake that the word "revision" was typed in the order. The Division bench refused to interfere with the discretion exercised by Prescribed Authority in not granting permission to cross-examine the witnesses. However the learned Judges Constituting the Bench left it open to petitioner to challenge the order in appeal (wrongly mentioned as revision) filed against final order passed under section 21 of the Act. From the provisions of U.P. Act no. 13 of 1972 it is clear that no revision lies against the order of the Prescribed Authority passed under section 21 of the Act, from such order only an appeal lies under section 22 of the Act. Thus the revision filed by petitioner has rightly been dismissed as not maintainable. Order does not suffer from any error of law.;