R. R. K. Trivedi, J. - (1.) IN this patltion, counter and rejoinder affidavits have been exchanged and both the learned counsel for parties are agreed that the petition may be finally decided at this stage.
(2.) FACTS giving rise to this petition are that an application was filed by respondent no. 3 for determination of the rent under section 9 of the U. P. Act No 13 of 1972 (hereinafter referred to as the Act. This application was subsequently allowed to be converted into one under Section 21 (8) of the Act. The Prescribed Authority by order dated 11-7-1991 fixed the rent at Rs. 8530/-. Aggrieved by this order petitioner filed appeal which has been dismissed by the appellate authority by order dated 16-7-1992. Aggrieved by the aforesaid two orders this petition has been filed. Learned counsel for petitioner Shri K. B. Mathur has submitted that respondent no. 3 had filed only a report of the valuer dated 10-1-1991. However, this report was not supported by any affidavit. Arguments in this case were heard by the Rent Control and Eviction Officer on 4-7-1991 and 11-7-1991 was fixed for judgment. On 6-7-1991 an affidavit of the valuer was filed before respondent no. 2 which was accepted without giving any opportunity of rebuttal to the petitioner. The judgment was pronounced on 11-7-1991. Submission is that without affidavit of the valuer the report could not be read in evidence as it was not a public document and there was no other evidence on record for proving the same. It has been submitted that the course adopted by the prescribed authority for admitting some evidence after arguments and pronouncing judgment on the basis of the same was violative of the principles of natural justice. The appellate Authority taking incorrect view has ignored this serious infirmity in the procedure adopted by the Rent Control and Eviction Officer. Learned counsel for respondent however, submitted that the report of the valuer was already filed on 10-1-1991 and as clear from the order of the Rent Control and Eviction Officer opportunity was given to the petitioner to file an objection against the same but no objection was filed. In the circumstances the filing of affidavit on 6-7-1991 was only a formal exercise to remove the technical defect and no prejudice has been caused to the petitioner and the view taken by the authorities below is justified Learned counsel for the respondent has further submitted that in case the writ petition is allowed and the case is remanded, the authorities may be directed to assess the market value of the buildings in accordance with law laid down by Honourable The Supreme Court in the case State of U. P. v. 7th Additional District Judge, (1992) 4 SCC 429 The learned counsel has further submitted that the respondent no. 2 may be directed to allow the respondent no 3 to adduce evidence regarding the present market value. In this connection the learned counsel has placed before me provisions of Section 21 (8) of the Act that similar application for further enhancement may be moved by the respondent no. 3 after expiry of the period of five years from the date of the last order. The submission is that since the order by the respondent no 2 will now be passed after 1992, this right of the petitioner for moving similar application after five years shall be affected
(3.) I have heard learned counsel for parties and in my opinion, the respondent no 2 as well as the appellate authority have committed a manifest error in deciding the case. The respondent no. 2 was not justified in taking the affidavit on record after close of the arguments. If the affidavit was taken as evidence he must have given opportunity to the petitioner to file affidavit in rebuttal oof the same It cannot be denied that a bare report of the valuer could not be read in evidence being a private document and it ought to have been supported by an affidavit The appellate authority as well as the respondent no 2 have taken the view that the report was filed on 10-5-1991 and in spite of the opportunity given, no objection was filed by the petitioner and in this way no prejudice has been caused merely by taking affidavit on record in proof of the same. In my opinio a, the view taken by the respondents nos 1 and 2 is wholly misconceived and erroneous in law As the report was no evidence without affidavit the petitioner may very well ignore the same and may not file an abjection. It could be treated as evidence and worth relying only after affidavit was filed This way the petitioner ought to have been permitted an opportunity to rebut the same,. Since this has not been dose, the orders passed by the two authorities below cannot be sustained. So far as the submission of the learned counsel for the respondent for applying the law as pronounced by Honourable Supreme Court is concerned, I need not make any comment The rent Control and Eviction Officer is bound to follow the law. Since the application of the respondent no. 3 was filed on 20-2-1992 and sufficient time has already elapsed, it deserves to be decided expeditiously.;