N.L. Ganguly, J. - (1.) THIS writ petition arise out of an order dated 15-5-93 passed by the XII Addl. District Judge, Kanpur Nagar in Rent Appeal No. 22 of 1992 rejecting the application moved by the tenant before the appellate court for rejecting all the evidence adduced by the landlord in proceedings under Section 21 (1) (a) of U. P. Act no. 13 of 1972. The ground for requesting to reject all evidence adduced by the landlord on affidavit, was that the evidence by affidavit is not covered by the definition of the word "evidence" as defined in the Evidence Act.
(2.) AN application under Section 21 (1) (a) of U. P. Act No. 13 of 1972, hereinafter- referred as the Act, was filed by the landlord Laxmi Narain Gupta seeking a relief of release of a commercial accommodation namely premises no. 43/234 Meston Road, Kanpur Nagar. A copy of the application for release has been annexed with the writ petition as ANnexure 2 which shows that the landlord opposite party had prayed for release of the shop room for engaging the landlord Narain Prasad Gupta himself and settling his sons namely Nand Kishore and Brij Kishore so that they may jointly do some business in the shop room in question. The landlord had pleaded in his application that he himself is not employed at present. The applicant stated that he is Bania by cast and the family have sufficient experience of the business and are capable of doing business. There is no other alternative or there is no other job except to enter into business aud carrying on business. The landlord opposite party had pleaded that he has a big family and the income of the family is very meagre and the two sons were not employed. They wanted to start the business of hotel and restaurant in the shop room in question. The need of the landlord for settling himself and his son in business was genuine, bonafide and hard pressing. The landlord had given in the petition reference to a big house with the tenant-petitioner which was residential and commercial as whole. The petitioner was said to have filed application under Section 21 of the Act in respect of another accommodation at 108/8 P. Road,1 Kanpur and the shop occupied by Hind Trading has been sought to be released by the petitioner in the court below and the proceedings are pending. The petitioner-tenant filed the written statement and contested the application of the landlord, filed affidavit and other documents controverting the case of the landlord. The application under section 21 of the Act was dismissed by an order dated 9-1-92 by the Prescribed Authority, under the Act, Kanpur Nagar. Being aggrieved by the said judgment, the landlord opposite party filed an appeal before the appellate court, Kanpur Nagar under Section 22 of the Ad. The application for rejecting the evidence of the landlord tendered on affidavit was prayed to be rejected on the ground that the evidence of an affidavit is no evidence according to the definition of evidence in the Evidence Act, being not relevant admissible in evidence on record. The said application was moved after about 14 months from the date of filling j of the appeal. The said application for rejecting the evidence on affidavit by the landlord was rejected after hearing the petitioner and the opposite party landlord by the order impugned dated 15-5-1993.
(3.) THE learned counsel for the petitioner before this court submitted that the evidence on affidavit is no evidence as per the definition of Section 3 of the Evidence Act. It was submitted that the averments on affidavit may be treated as evidence after the court have sufficient reason passes on order under Order 19 rules 1 or 2 of the Code of Civil Procedure. THE learned counsel cited Smt Sudha Devi v. Narayanan, AIR 1988 SC 1381 in support of his submission that the averments on affidavit without an order under O. 9 R. 1 or 2 of CPC is no evidence within the meaning of the definition, Such affidavits could-not be admitted in evidence and are liable to be ignored by the appellate court. THE learned counsel for the petitioner plaoed the provisions of Section 34 of the Act which is quoted 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 purpose 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 or 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 there with. (g) any other matter which may be prescribed. The learned counsel for the petitioner submitted that perusal of Section 34 of the Act adopts the provisions of the Code of Civil Procedure. Thus the compliance of provisions of Order 19 Rules 1 and 2 of CPC also becomes mandatory. He submitted that any affidavit taken on record and relied by the Court, in absence of order under Order 19 rule 1 CPC is wholly illegal and unwarranted. He submitted that the prescribed authority under the Act dealing with the application under Section 21 of the Act, has all the powers of civil court and in fact acts as a civil court, which makes it necessary for strict compliance and adherence to provisions or Order 19 rule 1 CPC.;