ASHOK KUMAR Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) THIS revisional application under Article 227 of the Constitution of India has taken out against the impugned judgment and order dated 4th 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.

(2.) 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 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.

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