Dismissed

Sumit Kumar and Another v. Anil Kumar

Allahabad HC2 Dec 2020WRIA/3997/2020

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an order rejecting an application for cross-examination in a rent control proceeding. Upholding the lower court's decision, the Court held that denying cross-examination was within the discretionary power of the authority as evidence can be proved via affidavit.

What did the court decide?

The writ petition assailing the rejection of the cross-examination application was dismissed holding no manifest error of law.

Sumit Kumar and Another Vs Anil Kumar — Civil Procedure and Limitation | Allahabad HC (2020)

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Court No. - 71

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Case :- WRIT - A No. - 3997 of 2020

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Petitioner :- Sumit Kumar And Another Respondent :- Anil Kumar Counsel for Petitioner :- Mohit Kumar

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Hon'ble Mahesh Chandra Tripathi,J.

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Heard learned counsel for the petitioner.

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The present writ petition has been preferred assailing the order impugned dated 18.2.2020 passed by Judge Small Cause Court, Bulandshahar in Rent Control Case No. 5 of 2017 whereby petitioners' application 20-C seeking cross-examination of plaintiff/respondent has been rejected.

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Brief facts of the case are that a proceeding under Section 21(1) (a) of U.P. Act No. 13 of 1972 was initiated by the plaintiffrespondent being R.C.C. No. 5 of 2017 in the Court of Judge Small Cause Court, Bulandshahar on the facts that the shop in question was purchased by father of plaintiff-respondent Banshi Lal by means of two sale-deeds of the year 1979 and 1994 respectively. It appears from the record that earlier the petitioners have approached to this Court by preferring Writ A No. 15904 of 2019 whereby they have requested to set aside the order dated 25.9.2019 whereby the application 18-C(2) dated 10.12.2018 filed by the tenants-petitioners for cross examination of the deponent of affidavits namely, Anil Kumar, Ashok Kumar and Ghanshyam Singh, was rejected. The same was dismissed by this Court vide order dated 14.10.2019. While dismissing the writ petition, the Court has considered the judgment of this Court in Mahesh Kumar and Anr. v. Swami Dayal Katiyar (Writ A No. 5387 of 2018) decided on 20.2.2018 wherein this Court relying upon the judgments in Radha Kishan v. IVth Additional District Judge, Jalaun at Orai & Ors. 1985 (1) ARC 427, Khushi Ram Dedwal v. Additional Judge, Small Cause Court/ Prescribed Authority, Meerut & Ors. 1997 (2) ARC 674 (D.B), Sanjay Kumar Katyal v. Smt. Kamlesh Gupta & Anr. 2007 (67) ALR 250, Mahesh Chand v. Additional Civil Judge (S.D.), Bulandshahar/ Prescribed Authority (2005)/ ARC 558 and Satnam Singh v. Rakesh Kumar 2011 (89) ALR 560 held as under:

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" 20. The legal principle for allowing the cross examination in proceedings under Section 21(1) of the Act are absolutely clear. The power under Section 34(1) of the Act is discretionary which should be exercised sparingly by the Prescribed Authority only when he finds that

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cross-examination is necessary for deciding the release application. The application for cross-examination has to be decided in the context of factual back drop of the case and in the context of nature of the proceedings under the Act. The legislature has not provided for oral evidence to be adduced in support of the case as contemplated under Order XVIII Rule 4 C.P.C. but the facts are to be proved on affidavit. If unnecessary cross examination is permitted, that will only hamper the expeditious disposal of the cases and shall defeat the primary object of the Act, i.e., the expeditious disposal of the cases. When an application for cross examination is filed, the Court has to examine, in each case, as to whether on the facts and circumstance of the case, cross examination is necessary and the application filed for cross examination is bona fide. Cross examination will not be relevant as to the fact which can be proved by documentary evidence and which can be annexed with the affidavit. Under the scheme of the Act, oral examination may be allowed only as an exception. If a party wants to cross examine, he has to disclose the necessary facts in his application as to why the cross examination is necessary. Unless it is established that the veracity of facts as stated in the affidavit is necessary to be tested by cross examination, the cross examination cannot be allowed in proceedings under Section 21 of the Act. The party moving the application must give reasons as to which particular part of the affidavit is incorrect and under what circumstances and for what reasons such cross examination is necessary in the context of the facts and circumstances of the case."

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In this backdrop, learned counsel for the petitioner vehemently contended that once the mandate of this Court permits the petitioner for cross-examination, in such situation, the order impugned cannot sustain and the same is liable to be quashed by this Court.

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The Court has occasion to peruse the order impugned and the application so moved by the petitioner. While dismissing the earlier writ petition vide the order dated 14.10.2019, the Court has clearly proceeded to observe so far as the order impugned dated 25.9.2019, it does not require any interference as there is no manifest error of law. The Court has clearly proceeded to observe the petitioner can adduce the evidence through an affidavit. Suffice to indicate,the law in this regard is settled. The power under Section 34(1) of the Act is discretionary which should be exercised sparingly by the Prescribed Authority only when he finds that cross-examination is necessary. This is only discretion of the court in case the court is inclined to proceed no interference is required in the matter.

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In view of the aforesaid discussion, the Court does not find any grave illegality in the order impugned. The writ petition is accordingly dismissed .

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Order Date :- 2.12.2020 A.K.Srivastava

Sumit Kumar and Another v. Anil Kumar

Case brief

What is this about?

What did the court decide?

Sumit Kumar and Another v. Anil Kumar

Case brief

What is this about?

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