Sanjay Misra, J. - (1.) HEARD Sri A.K. Gupta, learned Counsel for the petitioner and learned Counsel appearing on behalf of the respondents. Counter -affidavit and rejoinder affidavit have been exchanged between the parties.
(2.) WITH the consent of learned Counsel for the parties, this writ petition is being finally decided at this stage. By means of this writ petition, the petitioners seek to challenge the order dated 10.3.2006 passed in Case No. 2 of 2001 in proceedings under section 21(a)(1) of U.P. Act No. XIII of 1972. By impugned order, the application No. 66 -Ga filed by the petitioner has been rejected. Learned Counsel for the petitioners has confined his relief to the rejection of the said application alone. The application 66 -Ga was made by the petitioners who are tenants of the accommodation in dispute, for permission to cross -examine the landlord and two other persons who had filed their affidavits in the proceedings. The Court below was of the view that since the proceeding under U.P. Act No. 13 of 1972 are summary proceedings hence affidavit filed by the landlord and his witnesses could be rebutted by affidavit. On the aforesaid ground the Court has rejected the application.
(3.) LEARNED Counsel for the petitioners has placed reliance on the decision in Khushi Ram Dedwal v. Additional Judge, Small Causes Court and others : 1998 (32) ALR 60 and has contended that right for cross -examining is available in the proceedings under section 21(1)(a) only when there are reasons given in the application for cross -examination. Paragraph 6 of the judgment is quoted below: - - Section 34(1) of the Act permits the authorities under the Act to receive evidence on affidavits and clause (a) confers power on the authorities for summoning and enforcing the attendance of any person and examining him on oath. The cross -examination of a deponent of an affidavit is thus not excluded. The authorities have power to permit any party to cross -examine the deponent of the affidavit. The exercise of power to permit cross examination should be on the principle as laid down under Order XIX, Rule 1 of the Code of Civil Procedure, as amended by U.P. Act No. 57 of 1976 which came into force on 1.1.1977. The proviso to Rule 1 of Order XIX was substituted by U.P. Act No. 57 of 1976. Substituted proviso reads as follows: - - Provided that if it appears to the Court, whether at the instance of either party or otherwise and whether before or after the filing of such affidavit, that the production of such witness for cross -examination is necessary and his attendance can be procured, the Court shall order the attendance of such witness, whereupon the witness may be examined, cross examined and re -examined.;