S.N.Saxena - (1.) THE petitioner in this case is tenant of respondent no. 2, Suresh Kumar Gupta, hereinafter referred to as the 'landlord'. THE landlord filed an application for release off the accommodation in the tenancy of the petitioner under section 21 of the U. P. Act No. 13 of 1972 on 17-2-1984 before the Prescribed Authority, Varanasi Petitioner, hereinafter referred to as 'the tenant' contested the release application of the landlord. Both the parties filed affidavits in support of their contentions. THE landlord filed rejoinder affidavit also after the counter affidavit has been filed by the tenant. Supplementary counter and rejoinder affidavits also, thereafter, were filed by the parties. THE landlord filed a photostat copy of a will executed allegedly by Sri Shitala Prasad in favour of Dr. Dinesh Kumar Gupta, which however, according to the tenant was a fictitious document. THE tenant (petitioner), thereafter, moved an application dated 31st March, 1986 with a prayer to summon Suresh Kumar Gupta, the landlord, and also Dr. Dinesh Kumar Gupta, who was his brother, for cross-examination, a copy of which is Annexure 7 of the writ petition. It was opposed in writing by the landlord and the learned Prescribed Authority rejected the same on 24-10 1988 with the observation that the photostat copy of the will filed by the opposite part was inadmissible in evidence but did not consider his prayer for cross-examination of the landlood and his brother, vide Annexure 8 which is a copy of the order dated 24-10-1988
(2.) THE petitioner, after about one year of the order dated 24-10-1988, moved another application dated 16-10-89 with prayer to summon the land lord and his brother Dr. Dinesh Kumar Gupta, which too, however was rejected by the learned Preseribad Authority on 23-10-1989 with the observation that the earlier application of the tenant had already been rejected on 24-10-1988 and that order had become final rendering the application dated 16-10-89 as not maintainable-vide Annexure 10 which is a copy of the said order. According to the tenant the learned Prescribed Authority had passed an illegal order and hence the need for this writ petition with the prayer for a writ, order or direction in the nature of certiorari quashing the orders dated 24-10-1988 and 23-10 89 aforesaid and for any other suitable writ, order or direction which may be found proper by this Court. The landlord contested the writ petition on the ground that both the orders had been passed by the learned Prescribed Authority in a legal and valid manner ; that the Prescribed Authority had not committed any illegality In the exercise of its jurisdiction while passing the impugned orders ; that it was not necessary to summon him or his brother for cross-examination as the dispute could be decided in a just and proper manner on the basis of the affidavits which has been filed by both the parties ; that his brother. Dr. Dinesh Kumar Gupta, was an unconcerned person and, therefore, could not be summoned for cross-examination ; that he had not relied upon any affidavit of Dr. Dinesh Kumar Gupta in support of his allegation that the photostat copy of the will was rightly tot taken on the record by the Prescribed Authority as it was inadmissible that the earlier order dated 24-10-1989 had become final between the parties and the same request could not again and again be made legally by the tenant ; that the writ petition so far as the order dated 24-10-1988 was concerned was not maintainable due to latches on the part of the petitioner and that in any view of the matter, therefore, the writ petition was liable to be dismissed. This Court heard the arguments advanced by the learned counsel for the parties on their behalf. It was also contended for the landlord that this writ petition having been filed against an interlocutory order only was not maintainable. The contention of the landlord that the photostat copy of the will was rightly not taken on the record was evidently correct. Learned counsel for the petitioner could not show as to bow the learned Prescribed Authority had acted illegally in ordering for return of the said photo copy as the same was inadmissible and could not legally be proved by the tenant. The other part of the order that the landlord and his brother could not legally be summoned for cross-examination also appeared to be correct. The landlord had not relied upon any affidavit or any other document of Dr. Dinesh Kumar Gupta who thus was not his witness. The learned Prescribed Authority could direct for cross-examination of a witness only of the landlord which was not the case before him. It would not have been possible for the Prescribed Authority to permit cross-examination of Dinesh Kumar Gupta by the tenant when there was no examination in chief other orally or in the from of an affidavit on the record of the case. The prayer on its face thus was unreasonable and unjustified and could not be challenged by the tenant by means of this writ petition.
(3.) FOR the petitioner it was vehemently argued that there was no justification at all for rejection of his prayer for cross-examination of the landlord, namely, Suresh Kumar Gupta and therefore, the impugned orders were liable to be quashed. The contention, however, did not appear to carry force. Release proceedings are normally decided on the basis of affidavits of the parties and cross-examination cars be permitted under some unusual compelling circumstances which, however, did not exist in this case. The landlord who had initiated the release proceeding has filed affidavit in support of the release application. The tenant thereafter, hand filed counter affidavit in which he had full opportunity to mention all the relevant facts. The landlord, thereafter, had filed rejoinder affidavit to meet the counter affidavit of the tenant In this case even, thereafter, supplementary counter affidavit and supplementary rejoinder affidavit were filed by the parties. It could not be shown for the tenant as to how he was prejudiced in protecting his rights if the landlord was not made to enter into the witness-box for cross- examination. There appeared to be no justification regarding the prayer itself for the cross-examination of the landlord by the tenant. It could not, therefore, be held that the learned Prescribed Authority while passing the order dated 24-10-1988 had not properly exercised its jurisdiction or had committed illegalities in the exercise thereof. To the contrary the jurisdiction by the learned Prescribed Authority appears to have been exercised in a legal arid valid manner due to which the impugned orders could not be challenged by means of the writ petition. It is admitted case of the parties that exactly identical prayers had been made by the tenant before the learned Prescribed Authority which had rejected them by orders dated 24-10-1988 and 23-10-1989. From the above discussion it was evident that the order dated 24-10-1988 was a legal and valid order and it had also become final between the parties as it was not challenged by the tenant till October, 1989 i. e. for about a year. This writ petition, therefore, so far as tie first order dated 24-10-88 was concerned, was barred due to the latches on the part of the tenant for keeping quiet for about one year. The second order dated 23-10-1989 also could not be challenged as the first order to which the tenant had submitted had become final binding between the parties. It need not be emphasised that a party cannot be permitted by law to go on making the same prayer again and again in the same proceedings. The writ petition, therefore, as a whole was not maintainable. It was, therefore, liable to be dismissed on merits as well as on the ground of maintainability.;