- (1.) RAJESH Tandon Heard Sri C. D. Bahuguna, Advocate for the petitioner, Standing Counsel for the respondent no. 1 and Sri B. D. Kandpal, Advocate for the respondent no. 2.
(2.) BY the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 12th June, 2006 passed by the respondent no. 1 and further for a writ of mandamus commanding the respondent no. 1 to permit the petitioner for cross-examination on the statements made by him in his affidavit filed before the Pre scribed Authority. Briefly stated, respondent ho. 2/ landlord filed a release application un der Section 21 (1 ) (a) of the U. P Ur ban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 in the Court of Prescribed Authority Nainital on 21 -1 1 -2003. The case was registered as Rent Control Case No. 11 of 2003. During the pendency of the aforesaid release application, both the parties have filed the affidavits in sup port of their cases.
(3.) PETITIONER has filed an application (Annexure No. 13 to the writ petition), where, he has prayed for cross-examina tion. The prescribed authority has re jected the application on the ground that affidavits which have been filed, have been duly controverted by the land lord and as such there is no occasion for cross-examination. The prescribed au thority has observed to the following effect : Hindi 6. Counsel for the petitioner Sri C. D. Bahuguna has argued that before accepting the affidavits in the case, the cross examination is necessary, on the same part, the evidence of the parties. Order 19 Rule 1 of the C. RC. provides the power to prove the affidavit. It reads as under : "1. Power to order any point to be proved by affidavit.- Any Court may at any time for sufficient reason or der that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such condi tions as the Court thinks reasonable: Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit. " 7, Counsel for the petitioner has re ferred Mohammad Hasnain Vs. 1st Add/. Civil Judge, Jaunpur and another ARC 1995 (1) 512. Relevant observations are quoted below : "ordinarily cross-examination should be permitted under Section 21 and it is only rare and exceptional cases where cross-examination should be refused. Section 21 proceedings are more similar to a Civil Suit where there is a right to cross-examination. Although Section 21 proceedings are not strictly speaking a suit but yet they have many of the features of a Civil Suit. It would be appropriate in Section 21 proceedings if examination-in-chief is permitted on affidavit but the deponent should be subjected to cross-examination otherwise the ve racity of the statement on affidavit cannot be properly attested. Mere filing of a counter-affidavit is no sub stitute for cross- examination and it does not properly test the veracity of the witnesses. " 8. In Smt. Sudha Devi Vs. M. P. Narayanan and others AIR 1988 SC 1381, the Division Bench has observed as under : "besides, affidavit are not included in the definition of 'evidence' in Section 3 of the Evidence Act and can be used as evidence only if for sufficient reason court passes an order under Order 19, Rule 1 or 2 of the Code of Civil Procedure. " 9. In Mohammad Ismail Khan Vs. Prescribed Authority, Barielly and oth ers 2003 (1) ARC Page 670, it has been observed as under : "5. A perusal of the above order will show that the learned Prescribed Authority did not consider the mat ter on merits but rejected the appli cation with casual observation. He is expected to apply his mind to the facts and circumstances of the case as well as to the respective conten tions of the parties before passing an order. The order, extracted above, appears to have been passed without any application of mind to the facts and circumstances of the case as also to the respective contentions of the parties and, therefore, it can easily be termed a manifest error on the face of the order of the Prescribed Authority and the same cannot be sustained and deserves to be quashed. In the result, the writ petition is allowed. The order dated 20-3-1990 passed by the Prescribed Authority is quashed. The Prescribed Authority will dispose of the application afresh in accordance with law after giving opportunity to the /earned Counsel for the parties to address the Court in respect of their respective conten tions. Since the matter is an old one, the Prescribed Authority will dispose of the matter as expeditiously as pos sible, preferably within two months from the date a certified copy of this order is presented before him. " 10. Further Khandesh Spg and Wvg. Mills Co. Ltd, Vs. The Rashtriya Cirni Kamgar Sangh, Jalgaon, AIR 1960 SC 571 has been referred, where the Divi sion Bench has held as under : "for the purpose of holding an en quiry or a proceeding under the Bombay Industrial Relation Act, 1956, s. 118 of the said Act confers on the Industrial Court the same powers as are vested in Courts in respect of- (a) proof of facts by affi davits; (b) summoning and enforcing the attendance of any person and ex amining him on oath; (c) compelling the production of documents; and (d) issuing commissions for the examina tions of witnesses. In courts facts have to be established either by oral evidence or by documentary evidence proved in the manner prescribed by law. But Order XIX of the Code of Civil Procedure empowers the Court to have particular facts-proved by affidavits. Under rule 1 thereof, "any Court may at any time for sufficient reason order that any particular fact or facts proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such condi tions as the Court thinks reasonable". But it is subject to the proviso that where it appears to the Court that either party bona fide desires the production of a witness for cross-ex amination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit. Under rule 2, "upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent". A combined effect of the relevant provisions is that ordinarily a fact has to be proved by oral evidence, but the Court, subject to the conditions laid down in Order XIX, may ask a particular fact or facts to be proved by affidavit. If other parties agree, agreed figure can be accepted. If they agree to a decision on affidavits, that course may be followed. But in the absence of an agreement, the procedure prescribed in Order XIX of the Code of Civil Procedure may usefully be followed by the tribunals so that both the par ties may have full opportunity to es tablish their respective cases. " 11. As will appear from the State amendment under Order 19 Rule 1 of the C. RC. that where it appears to the Court at the instance of either party or otherwise that the production of such witness for cross- examination is neces sary, his attendance can be procured. 12. The power, therefore, vests with the Presiding Officer being not an abso lute. It is in the discretionary power of the Prescribed Authority where it appears from the application of either party or otherwise. By virtue of the provisions of Rule 4 substituted by Act No. 46 of 1999, amendment has been incorpo rated in the Code of Civil Procedure under Order 18 Rule 4 of the Code of Civil Procedure to the following effect: "[4. Recording of evidence.- (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court. (2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (exami nation-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Com missioner appointed by it: Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant facts as it thinks fit. " 13. As will appear from the afore said facts, the power of cross-examina tion as well as examination-in- chief and re-examination has been substituted by the legislature by filing the affidavit. The words, which have been incorporated by the legislature shows that the examina tion-in-chief of the witness shall be on affidavit and copies thereof shall be sup plied to the opposite parties by the au thority, who calls him for the evidence. Similar is the provision of the evidence by cross-examination of the witness in attendance, whose affidavit (examina tion-in-chief) by affidavit has been fur nished. The aforesaid provision relating to the examination-in-chief and cross-examination came up before the Apex Court in Salem Advocate Bar Associa tion Vs. Union of India and others 2002 (6) AIR SCW page 4627, where the apex Court has held that the said power is valid and in order to expedite the liti gation, the same has been introduced. 14. The aforesaid mode of taking evidence has been introduced for the speedy justice as enshrined by our con stitution under Article 21 and it has been treated as an efficient mode for taking evidence. 15. In Khushi Ram Dedwal Vs. Addl. Judge Small Causes Court/pre scribed Authority, Meerut and others 1997 (2) A. R. C. Page 674, where the Division Bench of the Allahabad High Court has relied upon the decision of Lucknow Bench reported in Assam Dass v. Prescribed Authority/civil Judge, Mohanlalganj, Lucknow and another, 1996 (2) A. R. C. 92 where their Lord ships have held that in order to have the cross-examination, the parties have to furnish details and necessary facts in order to pass the order as to why the cross-examination is necessary. Relevant observation is quoted below : "13. The proviso to Order XIX, Rule 1 has used the words "cross-exami nation is necessary". The effect of this proviso was considered by a Di vision Bench of this Court in Assam Dass v. Prescribed Authority/civil Judge, Mohanlalganj, Lucknow and another, 1996 (2) A. R. C. 92and it was held that if the Prescribed Authority is satisfied that the cross-examination is necessary, it can allow a party to cross-examine the deponent of an af fidavit. The Court observed : "in our view a conjoint reading of Rule 1 of Order XIX, Code of Civil Procedure and Section 34 of the Act makes it quite manifest that if the Pre scribed Authority is satisfied that it is necessary for the ends of justice and to elicit truth that the deponent of the affidavit should be called upon to appear before it for the purpose of cross-examination, the Prescribed Authority has jurisdiction and power to ask such person to appear before it for that purpose. " 16. In the present case, the peti tioner has furnished a simple application without annexing affidavit in support thereof eliciting the facts required for the cross-examination. The Prescribed Au thority has found that-the facts given in the application are wholly insufficient in order to invoke the provisions of cross-examination as contained under Order 19 Rule 1 of the C. P. C. read with Sec tion 34 of the Act No. 13 of 1972. The Division Bench has observed as under: "14. The principle that a party is to be permitted to cross-examine on the principle of natural justice cannot be accepted in every case. Oral exami nation in all cases is not contemplated. Even in disciplinary inquiries in exceptional case oral evidence may not be insisted upon as held in Hira Nath Mishra V. Principal, Rajendra Medical College, A. I. R. 1973 SC 1260, and State of Haryana V. Rattar Singh, A. I. R. 1977 SC 1512. If a party wants to cross-examine, he has to given the necessary facts in the application as to why the cross-ex amination is necessary. The Pre scribed Authority will give the rea sons either for allowing or refusing the cross-examination. The reasons disclosed in the order of the Pre scribed Authority will show whether he acted fairly or not. Considering every aspect of the matter the au thority under the provisions of U. P. Act No. 13 of 1972 can permit the cross-examination of a deponent of an affidavit only when it is necessary in the case. " 17. In the same judgment reliance has been placed in Radha Krishna v. Vth Additional District Judge, Jalaun at Orai and others, 1985 (1) ARC Page 427. The Bench has observed that primary objec tive of Act No. 13 of 1972 being expe ditious disposal of the case and the oral evidence shall delay the matter. The Bench has observed that if oral evidence was contemplated to be filed and if the deponent was cross- examined, then it would not be possible to decide the re lease application under Section 21 (1) of the Act within a period of two months. 18. In M/s. Associated Cement Com panies Limited, Kanpur v. The Pre scribed Authority/ixth Additional Munsif, Kanpur and another, 19s4 (1) ARC. 137, Hon'ble R. M. Sahai, J. (as he then was) held that the discretionary power has to be exercised sparingly by the Prescribed Authority while deciding the release application under Section 21 (1) (a) of the Act. 19. When cross examination is necessary, it has to be decided in the context of factual back drop of the case and in the context of nature of the proceedings under Act. The appli cation under Section 21 (1) of the Act is to be decided expeditiously. Rule 15 (3) of the Rules framed under the Act lays down that every application under Section 21 (1) of the Act shall, as far as possible, be decided within two months from the date of its pres entation. The legislature did not pro vide that oral evidence to be adduced in support of the case as contem plated under O. XVIII, Rule 4 C. P. C. But the facts are to be proved on af fidavits. If unnecessarily cross-exami nation is permitted, that will only hamper the expeditious disposal of the case. The Supreme Court emphasized this aspect in the case of State of Jammu and Kashmir (supra ). Consid ering this provision Hon'ble R. M. Sahai, J. as he then was, in the case of Radha Krishna v. Vth Additional District Judge, Jalaun at Orai and oth ers, 1985 (1) A. R. C. 427, observed that the primary objective of Act No. 13 of 1972 is expeditious disposal of the cases. It may be hindered if the parties are permitted to lead oral evi dence. In the case of Smt. Gulaicha Devi (supra), the following observa tions was made : "if oral evidence was contemplated to be filed and if the deponent of every affidavit was permitted to be cross-examined then it would not be possible to decide the release application under Section 21 (1) of the Act within a period of two months. " 20. After taking into consideration the aforesaid observation, the Division Bench was of the opinion that in every case, the cross-examination can not be accepted. 21. Counsel for the respondent Sri B. D. Kandpal has referred the judg ment of Kripal Singh Vs. Prescribed Authority Haldwani, District Nainital 1998 (1) ARC Page 334, where the Court has relied upon the Division Bench of the Allahabad High Court in Khushi Ram Dedwal Vs. Add/. Judge Small Causes Court/prescribed Au thority, Meerut and others 1997 (2) ARC Page 674 and has observed that the petitioner has not given any evi dence rebutting or controverting the allegation made in the affidavit of the application and there being no illegal ity, the application was rejected. 22. In view of the Division Bench, the petitioner has to satisfy the require ment of cross-examination in every case. 23. Liberty is given to the peti tioner to file a detailed application before the Prescribed Authority. In case petitioner files the detailed appli cation along with the affidavit giving out the particulars regarding the facts on which the cross-examination is ne cessitated, the Prescribed Authority shall decide the application in accord ance with the law as stated above in accordance with the observations as stated above. 24. Since the case relates to the year 2003, the statute provides for the disposal within a period of two months. The Prescribed Authority shall dispose of the petition under Section 21 (1) (a) of the Act No. 13 of 1972 within a period of two months from the date of presen tation of the certified copy of the order. 25. Writ petition is disposed of ac cordingly. No order as to costs. .;