Siddhartha Varma, J. - (1.) Heard learned counsel for the parties and perused the records.
(2.) The writ petition has been filed against the order dated 26.12.2017 passed by the Sub-Divisional Officer, Farenda, Maharajganj and against the order dated 28.03.2018 passed in revision by the Additional District Judge, Court No.4, Maharajganj. When the Election Petition was being heard on 20.12.2017, the Sub-Divisional Officer passed an order that the defendant could cross-examine her witnesses on 23.12.2017 and it was also stated in the order that if on 23.12.2017, the Court was closed, then the matter would be posted for 26.12.2017. On 26.12.2017 opportunity to cross-examine the witnesses of the defendant was closed and the matter was posted for final hearing on 27.12.2017. Aggrieved thereof, the petitioner filed a recall application on 27.12.2017 saying that on 26.12.2017, witnesses could not be produced and that when they were present on 27.12.2017 the petitioner be allowed to proceed with the cross-examination. However, the Sub-Divisional Officer rejected the application by a laconic order on 21.02.2018 staying that when on 26.12.2017 date was fixed for 27.12.2017, there was no reason why the defendant should be allowed to cross-examine her witnesses. The petitioner, thereafter, filed a revision against the order dated 21.02.2018, which was also dismissed on 28.03.2018 with an observation that the petitioner had not challenged the order dated 26.12.2017 and the mere challenge of the order dated 21.02.2018 would be of no consequence.
(3.) Learned counsel for the petitioner has made the following submission:- (i) On 20.12.2017, the Sub-Divisional Officer committed a mistake by fixing the case for 23.12.2017 which date he had suspected could be a holiday. The further mistake he committed was that on 20.12.2017, he had stated in the order that if 23.12.2017 was a holiday the case would be taken up on 26.12.2017. He virtually fixed two dates in the case on 20.12.2017. In the result on both dates the witnesses could not be present.. (ii) Learned counsel has submitted that when on 26.12.2017, i.e. on the adjourned date, when the witnesses were not present and a date was being fixed for 27.12.2017 then cross-examination of the witnesses should have been allowed on 27.12.2017. (iii) Learned counsel for the petitioner has further, relying upon (Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Ors., 2013 AIR(SC) 58 ), submitted that right of cross-examination is an integral part of the principles of natural justice. For this purpose he relied upon paragraphs 25 & 30 and so they are being reproduced here asunder:- "25- In New India Assurance Company Ltd., v. Nusli Neville Wadia & Anr., 2008 AIR(SC) 876; this Court considered a case under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and held as follows :- If some facts are to be proved by the landlord, indisputably the occupant should get an opportunity to cross- examine. The witness who intends to prove the said fact has the right to cross-examine the witness. This may not be provided by under the statute, but it being a part of the principle of natural justice should be held to be indefeasible right. (Emphasis added) In view of the above, we are of the considered opinion that the right of cross-examination is an integral part of the principles of natural justice. 30- The aforesaid discussion makes it evident that, not only should the opportunity of cross-examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross-examination is an integral part and parcel of the principles of natural justice. " (iv) Learned counsel further submitted that in the Revisional Court when he had filed a revision against the order dated 21.02.2018 then it should have been presumed by the Revisional Court that when the order dated 21.02.2018 was being challenged the order dated 26.12.2017 was also challenged as it had merged in the order dated 21.02.2018.;