S.K.MOOKERJI,J. - (1.) I have heard learned counsel for the petitioner.
(2.) THE petitioner is a tenant in the house in question and respondent No. 1, Purshottam Das Singhal is the landlord. An application under Section 21(1)(a) of the U.P. Act No. XIII of 1972 (hereinafter referred to as the Act), has been filed by the respondent No. 1. The landlord applicant has been described in the said application as under :- "Purshottam Das Singhal, unsound mind, son of Sri Hira Lal through next friend Smt. Ramwati Devi self resident of Gali Doongar Sain, Dilliwala Mohalla, Hathras, district Aligharh." It appears that the petitioner-tenant before filing any written statement moved an application supported by an affidavit, copies whereof have been filed as Annexures-2 and 3 respectively, to the writ petition. It is urged that the above application of the petitioner has been made under Order 32, Rule 15, CPC. This application has been marked as paper No. 10-C. The Munsif, Hathras/Prescribed Authority, by his order dated 22/23.3.1991 rejected the application, 10-C. By this petition the above order dated 22/23.3.1991 has been challenged. 3. Learned counsel for the petitioner has urged that the application, 10-C, mentioned above, should have been decided on merits as required under Order 32, Rule 15 CPC. The only question arises, in the present case, is whether the provisions of Order 32, Rule 15, CPC would be applicable in a proceeding under Section 21(1)(a) of the Act. It is clear that provisions of the entire Civil Procedure Code have not been made applicable to the proceedings under the above Act and only some provisions of Civil Procedure Code have been incorporated in this Act by reference. Section 34 of the above Act runs as under :- "34. Powers of various authorities and procedure to be followed by them - (1) The District Magistrate, the Prescribed authority or any (appellate or revising authority) shall for the purposes of holding any inquiry or hearing (any appeal or revision) under this Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 (Act No. V of 1908), when trying a suit, in respect of the following matters namely, (a) summoning and enforcing the attendance of any person and examining him on oath; (b) receiving evidence on affidavits; (c) inspecting a building or its locality, or issuing commission for the examination of witnesses of documents or local investigation; (d) requiring the discovery and production of documents; (e) awarding, subject to any rules made in that behalf, costs or special costs to any party or requiring security for costs from any party; (f) recording a lawful agreement, compromise or satisfaction and making an order in accordance therewith; (g) any other matter which may be prescribed; It is further pointed out that Rule 22 of the Rules framed under the Act runs as under : "22. Powers under the Code of Civil Procedure, 1908 (Section 34(1)(g) :- The District Magistrate, the prescribed authority or the appellate or revising authority shall, for the purposes of holding any inquiry or hearing any appeal or revision under the Act, shall have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters, namely :- (a) the power to dismiss an application, appeal or revision for default and to restore it for sufficient cause; (b) the power to exceed ex parte and to set aside, for sufficient cause, an order passed ex parte; (c) the power to award cost and special costs to any successful party against an unsuccessful party; (d) the power to allow amendment of an application, memorandum of appeal of revision. (e) the power to consolidate two or more cases of eviction by the same landlord against different tenants; (f) the power referred to in Sections 151 and 152 of the Code of Civil Procedure, 1908 to make any order for the ends of justice or to prevent the abuse of the process of the authority concerned." From reading of Section 34 and Rule 22 referred to above it becomes clear that the provisions of Order 32, Rules 15 C.P.C. had not been incorporated under the above Act by reference. It is noteworthy that the above provisions have clearly mentioned the provisions of Civil Procedure Code which are applicable to the proceedings under the above Act. Thus, non-mentioning of Order 32, Rule 15 CPC either in Section 34 of Rule 22 will lead to the conclusion that provisions of Order 32, Rule 15, CPC are not applicable to the proceedings under the above Act. In view of the above position of law I am inclined to hold that the application of the petitioner (10-C) purported to have been moved under Order 32, Rule 16 Criminal Procedure Code is wholly misconceived and is not maintainable. Learned counsel for the petitioner has relied upon a decision of Hon'ble single Judge of this Court reported in 1988(1) All Rent Case page 285, Prabhat Sharma and another v. Hari Shanker Srivastava and other. This decision had no application to the facts of the present case. In the above decision it appears that a suit was filed in the Court of IV Additional District Judge exercising powers of Judge Small Causes Court for recovery of arrears of rent and for eviction. This suit was filed in the civil Court and entire procedure of Civil Procedure Code was admittedly applicable to the proceeding of the suit. After decree was passed by the trial Court a revision was filed which was also dismissed and thereafter in the execution proceeding objection was raised under Order 32, Rule 15 CPC. However, on the fact of the case the objection was turned down. However, in the present writ petition, proceedings are before the Prescribed Authority under Section 21(1)(a) of the Act and it was certainly not a suit pending to the civil Court. For the reasons given above I am reiterating that provisions of Order 32, Rule 15, CPC are not applicable to the proceedings before the Prescribed Authority. 4. Written statement by the tenant has not yet been filed before the Prescribed Authority. The petitioner tenant may file his written statement before the Prescribed Authority and he will be entitled to raise all points in the written statement and the Prescribed Authority shall decide all relevant points while disposing of the application under Section 21(1)(g) of the Act on merits and in accordance with law. In the aforesaid application (10-C), the tenant-petitioner stated that the applicant under Section 21(1)(a) of the Act had stated that her husband was of unsound mind and, therefore, before proceeding further in the case, the wife of the landlord was obliged to establish this fact before the Prescribed Authority. It is further alleged that the application under Section 21(1)(a) of the Act by the landlord, Purshottam Das Singhal, being of unsound mind, filed through his next friend wife was, therefore, not maintainable. It was therefore, prayed that the application under Section 21(1)(a) should be dismissed. By the impugned order 22.3.1991, the application (10-C) was rejected by the Prescribed Authority. The Prescribed Authority held that the applicant under Section 21(1)(a) will have to prove the facts stated in her application and in case she fails to establish the facts, the application under Section 21 may fail on that ground only. 5. The learned counsel for the petitioner-tenant argued that the application under Order 32, Rule 15 CPC deserves to be decided first before proceeding further in the matter. In support of the above contention, the learned counsel cited several decisions. Those decisions are not applicable to the facts of the present case. All such decisions relate to civil suits where the entire Code of Civil Procedure is admittedly applicable. In view of the above findings that the provisions of Order 32, Rule 15 CPC are not applicable in a proceeding under Section 21(1)(a) of the Act, the argument of the learned counsel for the petitioner is repelled. The order of the Prescribed Authority does not suffer from any legal infirmity or jurisdictional error nor there is any error apparent on the face of the record and, therefore, deserves no interference by this Court. 6. With the above observations, this petition is dismissed. Petition dismissed.;