Allowed

Ashok Kumar and Others v. Mohit Kumar Garg and Others

Uttarakhand HC3 Jan 2013WPMS/2100/2012

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging a trial court's refusal to permit cross-examination of affidavit witnesses in an eviction suit. Ruling that the petitioner had caveatable interest, the court exercised its revisional discretion to allow cross-examination and expedited the evidence phase.

What did the court decide?

Impugned order set aside; petitioners allowed to cross-examine deponents within ten days; evidence concluded within one month.

Ashok Kumar and Others Vs Mohit Kumar Garg and Others — Landlord and Tenant | Uttarakhand HC (2013)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition No. 2100 of 2012 (M/S)

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Ashok Kumar and others ….. Petitioners Versus State of Uttarakhand and others ..… Respondents

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Mr. Nagesh Aggarwal, Advocate for the petitioner. Mr. Ajay Veer Pundir, Advocate for the respondents.

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Hon’ble Kalyan Jyoti Sengupta, J.

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This revisional application under Article 227 of the Constitution of India has taken out against the impugned judgment and order dated 4^th September, 2012 passed learned Civil Judge (Senior Division) Roorkee, District Haridwar by acting as a Prescribed Authority u/S 34 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter said Act) which has been adopted by this State. The respondents before me initiated proceedings for eviction under the said Act on the ground amongst others bonafide requirement for their own use and occupation. The above proceedings were contested by the applicants. The respondents have filed their affidavits in order to prove case of the respondents before the learned court below. The petitioners before me filed application u/S 34 of the said Act and Rule 22 read with Order 19 Rule 1 and 2 and Section 151 of the C.P.C.

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This applicant basically prayed before the learned Court below for cross examining the deponents of those affidavits affirmed to testify oral accounts of the facts as

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well as documents. The learned trial Judge has rejected the said application on the ground that where the evidence is required to be taken on affidavit, there is no scope for cross examination. The learned trial Judge has also viewed that this sort of application is filed only to delay and procrastinate the proceedings.

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Learned counsel for the petitioners submits that the learned Court below should have exercised discretion by allowing his clients to cross examine under Order 19 Rule 2 of the C.P.C. which has been adopted by Section 34 of the said Act of 1972. He says in this matter registered will is sought to be proved and adduced before the learned court below in order to prove ownership of property in question. According to him, will is required to be proved before it is accepted as a genuine document. Affidavit evidence is not sufficient to establish genuineness of the will. Whether the will is genuine or not, at least two persons, namely, one attesting witness and propounder or executor, if there be in the will, will have to be cross examined. The testamentary capacity, execution and attestation of the will are required to be proved and this can only be proved not only by evidence in chief but in cross examination as well. Oral cross examination is required in order to see veracity of the evidence sought to be proved by way of affidavit. Attesting witness is required in order to prove lawful and valid will. This apart, documents are also required to be examined as far as genuineness and veracity are concerned. Therefore, it is

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a fit case where discretion should have been exercised under the aforesaid provision.

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The learned counsel for the respondents submits that this application is nothing but a calculated attempt to delay hearing of eviction suit. While supporting the judgment, he says that right of cross examination emanates basically from the Indian Evidence Act, 1872, and this Act has no application so far this proceeding is concerned. When the Court below exercised the discretion on given facts and circumstances, the revisional Court should not substitute its own discretion. If this cross examination is allowed, there will be no end of the matter and the proceedings will never be concluded logically.

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I have heard respective contention of the learned counsel for the parties. I accept the contention raised by learned counsel for the respondent No.1 that provision of Indian Evidence Act in strict sense does not apply to the proceedings of this nature as Section 1 of Indian Evidence Act as amended has excluded its applicability to the proceedings of this nature. I, therefore, reproduce the provision of Section 1 of the Indian Evidence Act 1872.

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“It extends to the whole of India [except the State of Jammu and Kashmir] and applies to all judicial proceedings in or before any Court, including Courts-martial, [other than Courts-martial convened under the Army Act] (44 & 45 Vict., c. 58) 3[the Naval Discipline Act (29 & 30 Vict., c. 109) or the Indian Navy (Discipline) Act, 1934 (34

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of 1934) [or the Air Force Act] (7 Geo. 5, c. 51) but not to affidavits presented to any Court or Officer, nor to proceedings before an arbitrator; and it shall come into force on the first day of September, 1872”

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Section 34 of the said Act provides for receiving evidence on affidavit. Therefore, this right of cross examination cannot be recognized and accepted applying provision of the Indian Evidence Act. Now, it has to be seen whether the petitioners are having right of cross examination under any provision of law other than Indian Evidence Act. It has been pointed out by the learned counsel for the petitioners that when the provision of C.P.C. has been adopted u/S 34 of the Act, as above, as far as summoning and enforcing the attendance of any person or receiving the evidence on affidavits, obviously, provision of Order 19 of the C.P.C. will be applicable automatically for receiving evidence on affidavit. Order 19 Rule 2 of the C.P.C. provides as follows:-

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“2. Power to order attendance of deponent

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for cross-examination. – (1) 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. (2) Such attendance shall be in Court, unless

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the deponent is exempted from personal appearance in Court, or the Court otherwise directs.”

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In my view, reading Clauses (a) and (b) of Section 34 of the Act, the aforesaid provision of Order 19 Rule 2 of the C.P.C. is also adopted by the said Act.

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The language of Order 19 Rule 2 of C.P.C. is very clear to hold that it is discretionary power and is not a matter of right, but when it is established before the Court that unless cross examination is allowed, there would be a travesty of justice, it becomes a matter of right. The Court must exercise discretion in that case to allow cross examination. There are so many instances which cannot be laid down exhaustively. The evidence taken by way of affidavit is nothing but oral testimony reduced in a form of document and affidavit itself cannot be said to be a document unless any document is annexed with it, and sought to be proved by affidavit separately. Here, with the affidavits, registered will is sought to be proved. According to me, by way of examination-in-chief lawful and valid execution and attestation of will is not proved, if it is contested. The Court cannot accept the genuineness of the document simply because it is registered. Registration of any document does not ensure genuineness either of the contents of the documents or execution of the same. Registration gives rise presumption that a document has been executed and registered. However, this presumption can be rebutted by adducing evidence.

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There are incidences also, namely, in case of forged document, forgery and undue influence etc. These are also required to be proved through cross examination. While observing as above, I hasten to add that all persons or every person cannot challenge the will unless he has right to contest the grant of probate of will

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wherever probate is required, meaning thereby person must have caveatable interest.

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In this case, on strength of a will, the ownership of property is sought to be established. Consequently, the plaintiffs, namely, the opposite parties herein are seeking eviction decree against the petitioners, and such decree can only be obtained on proof of ownership only. Therefore, if the petitioners before me are successful in establishing before the Court the will is not genuine, therefore, acquisition of the ownership of the plaintiff is not proved. Obviously, the proceedings will fail automatically.

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For the purpose of this eviction proceeding, I hold the petitioners are having caveatable interest. Therefore, I think the learned trial Judge has not considered this aspect of the matter and he has refused to exercise discretion under the aforesaid provision.

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I, therefore, set aside the impugned order. I allow the petitioners to cross examine the deponents who have filed affidavit in support of case of respondent No.1. The learned trial Judge has power to summon them u/S 34 (1) (a) of the said Act read with Order 19 Rule 2 of the C.P.C. Therefore, I expedite the hearing of the matter. The evidence of this proceeding must be concluded as far as practicable within a period of one month from the date of production of certified copy of this order. Unnecessary adjournment should not be allowed. I am told that the respondents have completed

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production of evidence and they will not bring any evidence. The petitioners before me shall conclude cross examination of witness within a period of ten days from the date of production of certified copy of this order. Failing to do so, it would be open for the learned Court below to close the cross examination. The petitioners before me will be entitled to produce affidavits / evidence and it would be open for the respondents to apply for cross examination under the provision of Section 34 of the Act read with Order 19 Rule 2 of the C.P.C. if so advised.

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The writ petition is allowed.

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There will be no order as to costs.

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English translation of application as well as impugned order have been supplied to the Court. Copy of translation has been supplied to the learned counsel for the respondents who has certified the same are correctly and faithfully translated. The same are kept on record.

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This order shall confine to the petitioners and should not be extended to other parties who are not contesting before me. The petitioners do not seek any relief as against respondent Nos. 2 and 3. Therefore, no order is passed as against them.

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Dated 3^rd January, 2013 Shiv

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(K.J. Sengupta, J.)

Ashok Kumar and Others v. Mohit Kumar Garg and Others

Case brief

What is this about?

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Ashok Kumar and Others v. Mohit Kumar Garg and Others

Case brief

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What did the court decide?

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