# Maksood Ahmad & Ors v. Smt. Dropadi & Anr. 542 INDIAN LAW REPORTS ALLAHABAD SERIES - **Citation:** (2016) 4 ILRA 541 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-04-19 - **Bench:** Devendra Kumar Upadhyaya - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/maksood-ahmad-ors-v-smt-dropadi-anr-542-indian-law-reports-allahabad-series-43662 - **Pages:** 7 ## Headnote Shri Kaushal Tiwari, Shri Ram Kaushal Tiwari Held - Introduction: The petitioners (tenants) challenged the orders of the Prescribed Authority (2012) and the Appellate Court (2015), which allowed an eviction application filed by the respondents (landlords) on the grounds of bona fide requirement and comparative hardship. Petitioner's Argument: The primary grievance was the denial of an opportunity to cross-examine witnesses. The petitioners argued that the Prescribed Authority failed to provide plausible reasons for rejecting their application for crossexamination and that the Appellate Court ignored this procedural error. Respondent's Argument: The landlords contended that the Act of 1972 does not explicitly provide for cross-examination and that the concurrent findings of the lower courts were based on evidence and required no interference. Court's Analysis on Cross-Examination: The Court noted that while cross-examination is a principle of natural justice, it is not an absolute right in summary rent proceedings. Citing precedent, the Court held that a party must show necessary facts why cross-examination is required. In this case, the Prescribed Authority had provided adequate reasons for the refusal, noting that the facts regarding an adjoining shop were already supported by a written compromise on record. Court's Analysis on Merits: The Court declined to interfere with the concurrent findings of "bona fide need" and "comparative hardship," stating that under Article 227, it only corrects jurisdictional errors and does not overturn findings of fact unless they are "absolutely perverse." Conclusion: Thee petition was dismissed. However, on a sympathetic ground, the Court granted the petitioners 12 months (until April 30, 2017) to vacate the premises, provided they continue to pay rent. The landlords were also directed to pay the two-year rent compensation as previously ordered. Petition Dismissed. Case laws Cited:- 1.New India Assurance Company Ltd. Vs. Nusli Neville Wadia and another, (2008) 3 SCC 279. 2.Rachpal Singh and others vs. Gurmit Kaur and others, (2009) 15 SCC 88. 3.K.L. Tripathi vs. State Bank of India and others, (1984) 1 SCC 43. 4.Lakshman Exports Ltd. Vs. Collector of Central Excise, (2005) 10 SCC 634. 4 All. Maksood Ahmad & Ors. Vs Smt. Dropadi & Anr. 543 5.Khushi Ram Dedwal vs. Additional Judge Small Causes Court/Prescribed Authority, Meerut and others, (1998) (16) LCD 208 (Division Bench of Allahabad High Court). ## Text 4 All. Maksood Ahmad & Ors. Vs Smt. Dropadi & Anr. 541 additional evidence at the appellate stage also provides that Appellate Court may also require any document to be product or any witness to be examined to enable it to pronounce judgment, or for any other substantial 5 cause as is provided in sub- rule (b) of Rule 27 of Order XLI of Code of Civil Procedure." 16. Accordingly in order to deal the controversy involved in the instant matter, the crucial word to be taken in order to decide the controversy in the present case as provided under Order 41 Rule 27 (1) (b) on or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced." 17. Further, in the present matter, it is not in dispute between learned counsel for the parties that the order dated 12..6.2002 was passed by this Court in Writ Petition No.1834(MS) of 2002 ( Smt. Yasmin Nuzhat and others Vs. Additional Commissioner , Lucknow Division ,Lucknow in the same set of facts/ litigation in which a direction was issued to "decide the same after considering the judgments passed by this Court as well as by other competent courts." 18. Moreover, it is admitted between the parties that the order dated 29.12.1951 passed by Parganadhikari, Maharajganj, District Rae bareli in case no.127 of 1951 (Mst. Harza Bibi Vs. Chaudhari Muzaffariuddin) on the basis of compromise dated 5.12.1951 in the litigation which took place between predecessor in interest to the present litigant/ parties, so the order dated 9.4.2010 passed by opposite party no.1/Additional Commissioner ( Administration) Lucknow Division , Lucknow in Appeal No. 2 of 2008-09 (Chaudhary Haider Husain and others Vs. Abdul Mazid and others), rejecting the petitioners' appeal for taking additional evidence on record is contrary to the fact of the case as well as the law, liable to be set aside. 19. For the foregoing reason, the writ petition is allowed. The impugned order dated 9.4.2010 passed by opposite party no.1/ Additional Commissioner ( Administration) Lucknow Division , Lucknow in Appeal No. 2 of 2008-09 ( Chaudhary Haider Husain and others Vs. Abdul Mazid and others) under Section 13 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 is set aside and the appellate authority is directed to take the evidence on record which is sought to be brought on record by the petitioners/ appellants vide application dated 13.4.2009 under Order 41 Rule 27 (1) (b) CPC and decide the appeal expeditiously. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 19.04.2016 BEFORE THE HON'BLE DEVENDRA KUMAR UPADHYAYA, J. Rent Control No.- 31 Of 2015 Maksood Ahmad & Ors. ...Petitioners Versus Smt. Dropadi & Anr. ...Respondents 542 INDIAN LAW REPORTS ALLAHABAD SERIES Counsel for the Petitioners: Shri Sharad Pathak Counsel for the Respondents: Shri Kaushal Tiwari, Shri Ram Kaushal Tiwari Held - Introduction: The petitioners (tenants) challenged the orders of the Prescribed Authority (2012) and the Appellate Court (2015), which allowed an eviction application filed by the respondents (landlords) on the grounds of bona fide requirement and comparative hardship. Petitioner's Argument: The primary grievance was the denial of an opportunity to cross-examine witnesses. The petitioners argued that the Prescribed Authority failed to provide plausible reasons for rejecting their application for crossexamination and that the Appellate Court ignored this procedural error. Respondent's Argument: The landlords contended that the Act of 1972 does not explicitly provide for cross-examination and that the concurrent findings of the lower courts were based on evidence and required no interference. Court's Analysis on Cross-Examination: The Court noted that while cross-examination is a principle of natural justice, it is not an absolute right in summary rent proceedings. Citing precedent, the Court held that a party must show necessary facts why cross-examination is required. In this case, the Prescribed Authority had provided adequate reasons for the refusal, noting that the facts regarding an adjoining shop were already supported by a written compromise on record. Court's Analysis on Merits: The Court declined to interfere with the concurrent findings of "bona fide need" and "comparative hardship," stating that under Article 227, it only corrects jurisdictional errors and does not overturn findings of fact unless they are "absolutely perverse." Conclusion: Thee petition was dismissed. However, on a sympathetic ground, the Court granted the petitioners 12 months (until April 30, 2017) to vacate the premises, provided they continue to pay rent. The landlords were also directed to pay the two-year rent compensation as previously ordered. Petition Dismissed. Case laws Cited:- 1.New India Assurance Company Ltd. Vs. Nusli Neville Wadia and another, (2008) 3 SCC 279. 2.Rachpal Singh and others vs. Gurmit Kaur and others, (2009) 15 SCC 88. 3.K.L. Tripathi vs. State Bank of India and others, (1984) 1 SCC 43. 4.Lakshman Exports Ltd. Vs. Collector of Central Excise, (2005) 10 SCC 634. 4 All. Maksood Ahmad & Ors. Vs Smt. Dropadi & Anr. 543 5.Khushi Ram Dedwal vs. Additional Judge Small Causes Court/Prescribed Authority, Meerut and others, (1998) (16) LCD 208 (Division Bench of Allahabad High Court). (Delivered by Hon'ble Devendra Kumar Upadhyaya, J.) 1. Heard Sri Sharad Pathak, learned counsel for petitioners and Sri Ram Kaushal Tiwari, learned counsel for respondents. 2. This petition under Article 227 of the Constitution of India seeks to challenge the order dated 22.12.2012 passed by the Prescribed Authority whereby the application moved by the respondents under Section 21 (1) (a) of U.P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972 for eviction of the petitioners from the premises in question has been allowed on the ground that the respondents need the premises for bona fide requirement and that the occupation of the premises in question by the petitioners is likely to cause hardships to the respondents-landlords. The petitioners have also challenged the judgement and order dated 13.03.2015 passed by the appellate court in Rent Appeal preferred by the petitioners against the order dated 22.12.2012 passed by the Prescribed Authority. 3. Learned counsel for the petitioners has primarily emphasized that learned Prescribed Authority while rejecting the application moved by the petitioners for cross-examination of the witnesses produced by the plaintiffs has erred in law. He has also stated that while rejecting the application seeking permission to cross-examine the witnesses, the learned Prescribed Authority has not assigned any plausible reason therefor. His further submission is that a specific ground was taken by the petitioners by filing appeal before the appellate court against the order dated 22.12.2012 passed by the Prescribed Authority that learned Prescribed Authority has wrongly rejected the application seeking opportunity to cross-examine the witnesses but learned appellate court has also not considered the said prayer in its correct legal perspective. In this regard, he has submitted that application made by the petitioners before the appellate court was rejected on 22.11.2014 with the observation that the issue will be considered by the appellate court at the time of final hearing of the matter, however while rendering the final judgement, the appellate court has not considered the said prayer and has also not taken into account the ground raised by the petitioners related thereto by observing that the application made by the petitioners stood rejected earlier and as such there is no justification in considering the said application. 4. Apart from the aforesaid ground of denial of opportunity to cross-examine the witnesses, learned counsel for the petitioners has also stated that in fact the findings of fact recorded by the learned Prescribed Authority which has been affirmed by the appellate court in respect of bona fide need and comparative hardships is also against the evidence available on record. 5. On the other hand, learned counsel representing the respondents has submitted that in the facts and circumstances of the case, no interference by this Court is warranted in the judgement rendered by the Prescribed Authority which has been affirmed by the appellate court. He has also stated that in absence of any provisions under U.P. Act No.13 of 1972 permitting cross- 544 INDIAN LAW REPORTS ALLAHABAD SERIES examination of the witnesses, there is no illegality which can be said to have been committed by the Prescribed Authority in denying the said opportunity to the petitioners. 6. Taking up the first argument raised by the learned counsel for the petitioners, I may only refer to the contents of the application made by the petitioners before the Prescribed Authority. The said application is on record. According to the said application, it was submitted by the petitioners before the prescribed authority that under the changed circumstances, the respondents have put wrong facts in respect of shop which is adjoining the premises in question and was earlier in the occupation of another tenant Ram Raj Prajapati. It was further stated in the said application that earlier the learned prescribed authority had rejected the application for issuing commission and as such it would be in the interest of justice that in respect of the fact deposed by the witnesses produced by the respondents, the petitioners may be permitted to cross-examine them concerning the statement made in regard to the shop which was earlier in occupation of Ram Raj Parajapati. Nothing else has been stated in the application. 7. The said application was dealt with by the prescribed authority who by means of the order dated 22.11.2012 rejected the same. While rejecting the said application, learned prescribed authority has given adequate reasons. Reasons given by the prescribed authority are to the effect that he was satisfied from perusal of the record that it has been deposed that the shop which was earlier in possession of Ram Raj Prajapati has came in the possession of the respondents-plaintiffs on the basis of a compromise. Learned prescribed authority has also stated in the said order that the plaintiffs have only stated that in the said shop the wife of plaintiff Vinod Prakash and plaintiff-Smt Drapudi themselves are doing some business relating to certain articles relating to ladies which fact has been corroborated by the statements made by other witnesses Vinod Kumar and Kesh Kumari. The court while passing the said order also recorded that copy of the compromise was available on record in which the said facts have been narrated. 8. Thus, submission of learned counsel for the petitioners that the application made by the petitioners for cross-examination of the witnesses was rejected by the prescribed authority only on the ground that there is no provision in the statute for permitting cross-examination of the witnesses, does not appear to be correct. Thus, adequate reasons in the order dated 22.11.2012 have been indicated for rejecting the application made by the petitioners for cross-examining the witnesses. 9. Learned counsel for the petitioners in support of his argument has placed reliance on several judgements of Hon'ble Supreme Court as well as judgements of this Court. 10. The judgements relied upon by learned counsel for the petitioners are (i) New India Assurance Company Ltd. Vs. Nusli Neville Wadia and another, reported in (2008) 3 SCC 279, (ii) Rachpal Singh and others vs. Gurmit Kaur and others, reported in (2009) 15 SCC 88, (iii) K.L.Tripathi vs. State Bank of India and others, reported in (1984) 1 SCC 43, (iv) Lakshman Exports Ltd. Vs. Collector of Central Excise (2005) 10 SCC 634, and (v) Khushi Ram Dedwal vs. 4 All. Maksood Ahmad & Ors. Vs Smt. Dropadi & Anr. 545 Additional Judge Small Causes Court/Prescribed Authority, Meerut and others, reported in (1998) (16) LCD 208. 11. So far as the principle evolved by Hon'ble Apex Court and by this Court, as enunciated in the aforesaid judgements, is concerned, there cannot be any dispute or quarrel. The principle which has been evolved by the courts in respect of the issue related to cross-examination of the witnesses is very clear and the principle is that even in absence of any provision for crossexamination of the witnesses in a Statute, it is a part of principles of natural justice to permit opportunity to cross-examine the witnesses; in fact it is an indefeasible right of the parties seeking cross-examination of the witnesses produced by the other side. However, in relation to the opportunity of cross-examination of Witnesses in a proceeding drawn under U.P. Act No.13 of 1972, the judgement rendered by a Division Bench of this Court which has been cited by learned counsel for petitioners in the case of Khushi Ram Dedwal (supra) is relevant. 12. In paragraph 14 of the said judgement, it has clearly been held that the governing principle is that a party is to be permitted to cross-examine on the principles of natural justice. However, such a prayer cannot be accepted in every case. The Court further observed that oral examination in all cases is not contemplated and further that if a party wants to cross-examine, he has to give the necessary facts in the application as to why the cross-examination is necessary. The Court has further observed that the prescribed authority will give reasons either for allowing or refusing the prayer for cross-examination. The reasons disclosed in the order of the prescribed authority will establish as to whether the prescribed authority has acted appropriately or not. The Court has further held that considering every aspect of the matter the prescribed authority under the provisions of U.P. Act No.13 of 1972 can permit the cross-examination of a deponent of an affidavit only when it is necessary in the case. Paragraph 14 of the said judgement is quoted below:- 14. The principle that a party is to be permitted to cross-examine on the principle of natural justice cannot be accepted in every case. Oral examination in all cases is not contemplated. Even in disciplinary inquiries in exceptional cases oral evidence may not be insisted upon as held in Hira Nath Mishra v. Principal, Rajendra Medical College, AIR 1973 SC 1260 and State of Haryana v. Rattar Singh, AIR 1977 SC 1512. If a party wants to cross-examine, he has to give the necessary facts in the application as to why the cross-examination is necessary. The prescribed authority will give the reasons either for allowing or refusing the cross-examination. The reasons disclosed in the order of the prescribed authority will show whether he acted fairly or not. Considering every aspect of the matter, the authority under the provisions of U. P. Act No. 13 of 1972 can permit the cross-examination of a deponent of an affidavit only when it is necessary in the case. 13. Thus, this Court in the aforesaid judgement has clearly held that it is the discretion of the prescribed authority to permit cross-examination of a deponent of an affidavit. However, the said discretion has to be exercised depending on the necessary facts which may be given by the person seeking cross-examination in the application to be made for the said purpose. The necessary 546 INDIAN LAW REPORTS ALLAHABAD SERIES facts are to be examined by the prescribed authority and that the reasons are to be given by the prescribed authority to either allow or refuse the cross-examination. 14. Applying the aforesaid dictum to the facts of the present case, it is seen that the only fact given by the petitioners seeking cross-examination of the witnesses was in relation to the adjoining shop which was earlier in possession of Ram Raj Prajapati and was vacated on the basis of a compromise. The Court has given reasons for refusing the application for cross-examination and one of the crucial reasons recorded is that the compromise on the basis of which the shop was vacated was on record. 15. So far as the submission made by learned counsel for the petitioners that a specific ground was taken by the petitioners before the appellate court that the application moved by the petitioners for cross-examination of the witnesses was wrongly rejected and further that the said application was moved before the appellate court as well and while rejecting the application though the appellate court observed in its order dated 21.11.2014 that the issue shall be considered at the time of final hearing, however at the time of final hearing, no such ground was permitted to be raised by the petitioners, is concerned, I may only indicate that in view of the findings recorded in the preceding paragraphs of the judgement of this Court regarding the order dated 22.11.2012 passed by the prescribed authority rejecting the application moved by the petitioners for crossexamination of the witnesses, nothing needs to be elaborated on this count by this Court. 16. In respect of the submission made by learned counsel for the petitioners that the findings recorded by the prescribed authority which has been affirmed by the appellate court regarding bona fide need and comparative hardships, it is only observed that the concurrent finding of facts recorded by the courts below cannot ordinarily be interfered with by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India unless findings are absolutely perverse. The scope of the provisions of Article 227 of the Constitution of India is limited only to scrutiny of jurisdictional error as this Court is vested with the authority and jurisdiction of having superintendence over the function and proceedings of all courts and tribunals subordinate to it. 17. For the reasons disclosed above, I am not inclined to interfere in the orders passed by the courts below. 18. The petition is, thus, dismissed. 19. At this juncture, learned counsel for the petitioners has submitted that the petitioners are very poor and the premises which is in the shape of shop is the only source of livelihood, hence the petitioners may be granted sometime to vacate the same. 20. Looking to the over all facts and circumstances and the situation in which the petitioners are placed, it is provided that the petitioners shall vacate the premises in question within a period of twelve months from today and they shall handover the peaceful possession of the 4 All. The State Of U.P. (State Appeal) Vs Kunwar Jaiveer Singh 547 premises to the respondents on or before 30th April, 2017. The petitioners shall also pay usual rent to the respondents every month as and when the same falls due. 21. The respondents shall pay a sum equal to the rent for a period of two years as has been directed by the prescribed authority in its order dated 22.12.2012. 22. It is made clear that if the petitioners do not comply with the terms and the directions of this Court embodied in this judgements, they shall render themselves liable for being proceeded against under the relevant provision of the Contempt of Courts Act. 23. There shall be no order as to costs. --------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 12.04.2016 BEFORE THE HON'BLE AJAI LAMBA, J. THE HON'BLE ADITYA NATH MITTAL, J. Criminal Appeal No. - 69 of 1999 The State Of U.P. (State Appeal) ...Petitioner Versus Kunwar Jaiveer Singh ...Respondent Counsel for the Petitioner: Government Advocate Counsel for the Respondent: Y.K. Dhawan, Suresh Kumar Tiwari CRIMINAL LAW-Appeal against acquittal-Scope of interference-Reappreciation of evidence.High Court, while hearing appeal against acquittal, has full power to review and reappreciate evidence, but interference permissible only where findings are perverse, manifestly illegal or wholly unsustainable-If two reasonable views possible, view favouring accused to be adopted. CRIMINAL LAW-Presumption of innocence-Double presumption-Acquittal strengthens presumption of innocence-Appellate court must bear in mind double presumption in favour of accused-Interference not warranted in absence of compelling reasons. INDIAN PENAL CODE, 1860-S. 409-Criminal breach of trust by public servant-Entrustment-Proof of. Entrustment of property to accused in capacity of public servant is sine qua non-Prosecution must prove entrustment beyond reasonable doubt-Failure to establish entrustment fatal to prosecution case.