Smt. Java Kalia vs Smt. Manju Agarwal and Another

Shishir Kumar, J.—Heard Tulika Prakash, learned Counsel for the Petitioner and Sri P.N. Saxena, Senior Advocate assisted by Sri R.M. Saggi, learned Counsel for the Respondents.

This writ petition has been filed for quashing the orders dated 8.9.2009 and 23.10.2009 by which an application filed by the tenant for cross-examining the landlady has been rejected as well as the son of the landlady on the ground that the contentions raised in the affidavit are not correct, therefore, she may be permitted to cross-examine those persons. Leaned counsel for the Petitioner submits that as the provisions of CPC in view of Section 34 of the Act and Rule 22 of the U.P. Act No. XIII of 1972 are applicable, therefore, being such proceedings on an application made by the Petitioner, she is entitled to cross-examine the Respondents. She placed reliance upon a judgment of this Court in the case of Rang Lal v. Prescribed Authority and Anr. reported in 1982 ARC (1) 449. Taking support of the aforesaid judgment, learned Counsel for the Petitioner submits that this Court has held that in such circumstances, if the application has been filed, she may be permitted to cross-examine because under Order XIX of the CPC an affidavit may be permitted to be filed in support of an application. Section 34 of the Act permits the parties to file affidavit and produce witnesses in support of their case. In a case where an affidavit is filed the veracity or the credibility of a witness cannot be tested unless he is subjected to cross-examination and this Court has held that if the application has been rejected, it has to be allowed.

Further submission has been made by the learned Counsel for the Petitioner that the application of the Petitioner has been rejected only placing reliance upon a judgment of this Court reported in 2067 (67) ALR 907, Ram Chandra Sharma v. Additional District Judge, Moradabad and Ors. .

On the other hand, Sri P.N. Saxena, Senior Advocate has submitted that this writ petition is not maintainable as an interlocutory order has been challenged. Only an application for cross-examination has been rejected, therefore, if the Petitioner is aggrieved, if any final order is passed, it can be challenged in appeal or revision. As regards the applicability CPC in a proceeding u/s 21 of the Act, he placed reliance upon a Division Bench judgment of this Court rendered in the case of Khushi Ram Dedwal v. Additional Judge, Small Causes Court/ Prescribed Authority, Meerut and Ors. reported in 1998 (1) R.C.R. (Rent) 127 : A.R.C. 1997 (2) 674 and relied upon 13 of the said judgment which is quoted below:

13 .. The proviso to Order XIX, Rule 1 has used the words"cross- examination is necessary". The effect of this proviso was considered by a Division Bench of this Court in Assam Dass v. Prescribed Authority/ Civil Judge, Mohan Lal Ganj. Lucknow and Anr. 1996 (2) A.R. C. 92 and 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 affidavit. The Court observed:

In our view a conjoint reading of Rule 1 of Order XIX, CPC and Section 324 of the Act makes it quite manifest that if the Prescribed 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 purposes of cross-examination, the Prescribed Authority has jurisdiction and power to ask such person to appear before it for that purpose.

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 application u/s 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 u/s 21(1) of the Act shall, as for possible, be decided within two months from the date of its presentation. The legislature did not provide that oral evidence to be adduced in support of the case as contemplated under Order XVIII, Rule 4 CPC But the facts are to be proved on affidavits. If unnecessary cross-examination is permitted, that will only hamper the expeditious disposal of the cases. The Hon. Supreme Court emphasized this aspect in the case of State of Jammu and Kashmir (Supra). Considering 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 Oral and Ors. 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 evidence. In the case of Smt. Gulaicha Devi (Supra), the following observation 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 u/s 21(1) of the Act within a period of two months.

It may be that when the case is being decided a party file as application for cross-examination only to delay the proceedings. The Court has to examine in each case as to whether on the facts and circumstances of the case, cross-examination is necessary and the application filed for cross- examination is bonafide. If the matter relates as to the extent of the accommodation or the matter which could be verified on inspection, the cross- examination will be hardly relevant. If the question arises regarding title of the property which can be decided on the basis of the documentary evidence,the cross-examination will not be relevant as the fact can be proved by documentary evidence which can be annexed with the affidavit.

In view of the aforesaid fact, learned Counsel for the Respondents submits that in view of Section 38 of the Rent Control Act No. XIII of 1972, the limited provisions will be applicable and the provisions mentioned under Act No. XIII of 1972 is having an override effect upon any other procedural law.

I have considered the submissions made on behalf of the Petitioner and perused the record. In case the Petitioner was aggrieved that the contents of the affidavit filed on behalf of the landlady are not correct, it can be rebutted on the basis of the affidavit in rebuttal. There was no occasion to cross-examine and the provisions of CPC are not strictly applicable. Therefore, it is unnecessary to the Court to allow the application for cross-examination. If the Petitioner is of the opinion that the contents are incorrect and false, the Petitioner on the basis of the relevant document to be filed before the Prescribed Authority can prove regarding the false statement and incorrect facts stated in the affidavit. In my opinion, the court has rightly rejected the same. If the Petitioner ultimately is aggrieved by the said action of the Respondents, she can challenge it before the appellate court of before the revisional court as the case may be.

In view of the aforesaid fact, I see no justification to interfere in the matter.

The writ petition is devoid of merit and is hereby dismissed.

No order is passed as to costs.