Doongar Mal Singodia Vs. Anoop Kumar Agarwal and ors.

Doongar Mal Singodia vs Anoop Kumar Agarwal and ors.

Disposition Petition allowed Court Allahabad Decided Dec 11, 2007

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https://sooperkanoon.com/case/494254

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Citation: sooperkanoon.com/494254
Court: Allahabad High Court
Judge: Sunil Ambwani, J.
Decided On: Dec 11, 2007
Subject: Tenancy
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

- INDIAN PENAL CODE, 1860 [C.A. No. 45/1860]. Section 302; [M.C. Jain, R.C. Deepak & K.K. Misra, JJ] Murder Plea as to accused being minor School register and transfer certificate not proved before Court according to law Held, It has to be ignored and question of age is to be determined on other evidence and cir...

Key legal issue: Tenancy
Outcome / disposition: Petition allowed

Parties & Advocates

Appellant / Petitioner

Doongar Mal Singodia

Advocate Shri. K.K. Arora

Respondent

Anoop Kumar Agarwal and ors.

Legal References

Reported In: 2008(1)AWC823

Excerpt

- indian penal code, 1860 [c.a. no. 45/1860]. section 302; [m.c. jain, r.c. deepak & k.k. misra, jj] murder plea as to accused being minor school register and transfer certificate not proved before court according to law held, it has to be ignored and question of age is to be determined on other evidence and circumstances surfacing on record. age determined on the basis of x-ray plates and report prepared by c.m.o., is the correct age of accused. accused was declared to be child on the date of commission of offence of murder. however, considering fact that now accused was around 41 years, he cannot be sent to approved school. accused was directed to pay fine of rs.25,000/- under section 302 i.p.c., amount of fine was directed to be paid as compensation to wife of deceased. mohammad.....where she had filed the affidavit. the opportunity to cross-examine the witness is not to be allowed at the stage of appellate court.5. learned counsel for the petitioner contends that in the written statement the petitioner-tenant had averred that km. jyotsna agarwal is not capable of doing business in the shop and this fact could be established only by calling her to appear in the witness box for cross-examination.6. a person alleging a fact has to prove it by admissible and cogent evidence unless such fact is not in his knowledge. it was open to the petitioner to establish the fact by leading evidence. in case such an application was filed in the trial court and km. jyotsna did not have appeared in the witness box and adverse inference could be drawn against her.a witness may be recalled under section 138 of the evidence act to be cross-examined. the trial court may permit a witness to be examined by a party again and again, if it is necessary to ascertain the truth. such a discretion however will not be exercised after the party has finished with his evidence and may have dismissed some of his witnesses, and the fact in such case may have been contradicted by the witness which have been dismissed. the court would not suffer him to avail of such disingenuous conduct (sarkar on evidence, fifteenth edition, 1999; vol. 2 page 2195), and certainly not in appeal when such opportunity could be availed in the trial court.7. further, i find that asking a lady to appear in the witness box to allow the opposition to prove their allegation against her mental health is a direct affront to her right of privacy. she has a right not to appear for such cross-examination. the court would not insist a lady to be cross-examined in such a case. it was open to the petitioner-tenant to prove these facts by leading such evidence as was permissible and admissible in law.8. the writ petition is dismissed.

Full Judgment

ORDER

Sunil Ambwani, J.

1. Heard Shri K.K. Arora, learned Counsel for the petitioner-tenant.

2. By this writ petition, the petitioner-tenant is challenging an order dated 14.11.2007 made in Rent Control Appeal No. 27 of 2006 by which his application (48C), for cross-examining Ms. Jyotsna Agarwal, grand daughter of the late landlord, in appeal, on her affidavit filed before the prescribed authority to establish that she is mentally challenged and is not capable of doing business, which is alleged to be inherited by her by partition and carried out by her after the death of her grandfather, was rejected.

3. The release application was filed setting up the need of Shri Vaibhav Agarwal, grandson of the late landlord. It was alleged that after his death, there was a family partition in which the business carrying out by the landlord had fallen to the share of Km. Jyotsna Agarwal, the unmarried granddaughter leaving the need of Shri Vaibhav Agarwal to be still bona fide and pressing for release under Section 21(1)(a) of U.P. Act No. XIII of 1972.

4. The appellate court has rejected the application on the ground that such an application was not moved in the trial court where she had filed the affidavit. The opportunity to cross-examine the witness is not to be allowed at the stage of appellate court.

5. Learned Counsel for the petitioner contends that in the written statement the petitioner-tenant had averred that Km. Jyotsna Agarwal Is not capable of doing business in the shop and this fact could be established only by calling her to appear in the witness box for cross-examination.

6. A person alleging a fact has to prove it by admissible and cogent evidence unless such fact is not in his knowledge. It was open to the petitioner to establish the fact by leading evidence. In case such an application was filed in the trial court and Km. Jyotsna did not have appeared in the witness box and adverse inference could be drawn against her.

A witness may be recalled under Section 138 of the Evidence Act to be cross-examined. The trial court may permit a witness to be examined by a party again and again, if it is necessary to ascertain the truth. Such a discretion however will not be exercised after the party has finished with his evidence and may have dismissed some of his witnesses, and the fact in such case may have been contradicted by the witness which have been dismissed. The Court would not suffer him to avail of such disingenuous conduct (Sarkar on Evidence, Fifteenth Edition, 1999; Vol. 2 page 2195), and certainly not in appeal when such opportunity could be availed in the trial court.

7. Further, I find that asking a lady to appear in the witness box to allow the opposition to prove their allegation against her mental health is a direct affront to her right of privacy. She has a right not to appear for such cross-examination. The Court would not insist a lady to be cross-examined in such a case. It was open to the petitioner-tenant to prove these facts by leading such evidence as was permissible and admissible in law.

8. The writ petition is dismissed.

Same Court & Year Allahabad · 2007 Same Parties Doongar Mal Singodia vs Anoop Kumar Agarwal and ors. Same Subject Tenancy Same Judge Sunil Ambwani, J.

Tenancy