HASNAIN Vs. IST ADDL. CIVIL JUDGE

JUDGEMENT

(1.) THIS writ petition has been filed against the impugned order dated 9 -3 -1995, a true copy of which is Annexure 4 to the writ petition by which petitioner's application to cross -examine the landlord and other witnesses has been rejected. The petitioner is the tenant of the premises in dispute and the respondent No. 2 is the landlady. The respondent No. 2 filed an application under Section 21(1)(a) of U.P. Act No. 13 of 1971 which is pending. During the course of these proceedings the tenant filed an application dated 18 -2 -1992 for cross -examining the witnesses of the landlady. A true copy of this application is Annexure -1 to the writ petition. The landlady filed an affidavit to this application and by the impugned order dated 9 -3 -1995, the application has been rejected. Hence this petition. I have heard Sri B.K. Srivastava, learned Counsel for the petitioner and Sri S.C. Kharbanda, learned Counsel for the respondent No. 2. In certain decisions of this Court it was held that ordinarily cross -examination should not be allowed in proceedings under Section 21 but I have differed with this view and referred the matter to a Larger Bench in Writ Petition No. 4097 of 1995, Khushi Ram Dedwal v. Additional Judge, Small Causes Court, Meerut and others, 1995(1) ARC 308. There are certain conflicting opinions of learned Single Judges on this point whether ordinarily cross -examination should be permitted in Section 21 proceedings or not. For example in Rano Lal v. Prescribed Authority, 1982(1) ARC 449, the learned Single Judge has held "In a case wherein affidavit is filed the veracity of the credibility of the witnesses cannot be tested unless he is subjected to cross -examination". In my opinion Section 21 proceedings are not like a writ petition where ordinarily evidence is only on affidavits. Section 21 proceedings are more similar to a Civil Suit where there is a right to cross -examination. Although Section 21 proceedings are not strictly speaking a suit but yet they have many of the features of a Civil Suit. In my opinion, ordinarily cross -examination should be permitted under Section 21 and it is only rare and exceptional cases where cross -examination should be refused. In my opinion, it would be appropriate in Section 21 proceedings if examination -in -chief is permitted on affidavit but the deponent should be subjected to cross -examination otherwise the veracity of the statement on affidavit cannot be properly attested. Mere filing of a counter -affidavit is no substitute for cross -examination and it does not properly test the veracity of the witnesses. Section 21 proceedings are of a serious nature which can result in the eviction, of a person from house where he may have been living for decades. Under Section 34(1)(a) of U.P. Act 13 of 1972, the Prescribed Authority has power to summon and enforce attendance of any person and examine him on oath. In my opinion, this power to examine a person on oath includes the power of permitting cross -examination. Thus, it is in the discretion of the Prescribed Authority to permit cross -examination or not. It is settled law that whenever discretion is conferred on a quasi -judicial authority it is a judicial discretion and not arbitrary discretion. Whether the discretion should be exercised in favour of permitting or not permitting cross -examination will depend on the nature of proceedings, the result which may ensue thereto from, and other factors.

(2.) I have already observed above that Section 21 proceedings are of a serious nature which may seriously affect one of the parties to the dispute. Hence they should not be disposed of without permitting cross -examination by both the parties, though the examination -in -chief may be on affidavit.

(3.) IN my opinion, this paragraph of the said judgment does not seem to be of no help to the respondents because it does not seem to lay down any hard and fast rule. It does not say whether ordinarily any cross -examination should be permitted, but it only seems to say that if the Prescribed Authority is satisfied that it is necessary in the ends of justice and to elicit the truth then the deponent of the affidavit should be called upon for cross -examination. In my opinion, this does not detract from the observation which I have made above. Whenever an application under Section 21(1)(a) is filed by the landlord in such proceedings, the members of the landlords and tenants family, the number of rooms available with the landlord and with the tenant, etc., are usually mentioned in the application. The tenant usually denies these facts alleged by the landlord. Hence, when the tenant denies the allegations of the landlord in his application under Section 21(1)(a) it is ordinarily necessary to permit cross -examination to elicit the truth. According to the Division Bench decision, as interpreted by me, cross -examination should be permitted if the tenant denies tin factual allegations of the landlord in his application under Section 21(1)(a). In my opinion, the Division Bench ruling referred to above supports the view which I have taken. However, I am not expressing any final opinion on this point because the entire judgment of the Division Bench has not been placed before me. Since I have already referred the matter to a Larger Bench, in my opinion, this case should also refer to a Larger Bench. If Hon'ble the Chief Justice so deems fit he may refer the matter to a Full Bench.