G.P.MATHUR,J. - (1.) PARTIES have exchanged affidavits therefore this writ petition is being disposed of finally at the admission stage.
(2.) SMT . Anand Kumari (respondent No. 2) filed a release application on 10.3.1988 against Kripal Singh (petitioner) and Vakil Singh (respondent No. 3) under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act') praying that the first floor which is over house No. 421 be released in her favour and possession thereof may be delivered to her. Kripal Singh (petitioner) moved an application before the Prescribed Authority on 2.1.1992 praying that either the application of the landlady filed under Section 21(1)(a) of the Act be rejected in absence of any specific order having been passed under Order 19 Rule 1 CPC or she may be directed to produce herself and her witnesses in Court for the purpose of cross-examination. This application was opposed on behalf of the landlady Smt. Anand Kumari. The Prescribed Authority by his order dated 14.1.1992 rejected the application. Aggrieved Kripal Singh has filed the present writ petition. Shri Pankaj Mittal, learned counsel for the petitioner has submitted that affidavits are no evidence as defined under Section 3 of the Evidence Act and in absence of an order by the Court as provided by Order 19 Rule 1 CPC, they are not admissible and cannot be read in evidence. In support of his submission, learned counsel has placed reliance upon M/s Usha International Ltd., Agra v. IV Addl. District Judge, 1992(1) RCR 319(All) : 1991(2) ARC 215 wherein a learned single Judge has held that the proceedings under Section 21 of the Act are judicial proceedings and in absence of a specific order passed by the Prescribed Authority permitting evidence to be adduced by means of affidavits, such affidavits are not admissible in evidence and cannot be looked into. It has been further submitted that as the affidavit was not admissible, it was necessary for the landlady and her witnesses to appear in Court for the purpose of recording their statement and giving opportunity to the petitioner-tenant to cross-examine them. Shri Mittal has also urged that even if affidavits were admissible, on the facts and circumstances of the present case and in order to elicit truth, it was necessary that the landlady and her witnesses appeared in Court for the purpose of their cross- examinations.
(3.) RULE 1 of Order 19 no doubt provides that evidence may be given by affidavit if the Court makes an order to that effect. In absence of a specific order by the Court, evidence cannot be given by means of an affidavit. However Rule 2 of Order 19 provides that upon any application evidence may be given by affidavit. Section 21 of the Act, which is a proceeding for release, lays down that Prescribed Authority may, on 'application' of the landlord, order eviction of a tenant. The legislature has used the word 'application' while drafting Section 21 of the Act. Section 34 lays down that Prescribed Authority shall for the purpose of holding any enquiry have the same powers as are vested in the Civil Court under Code of Civil Procedure, when trying a suit in respect of the matter enumerated in sub-clause (a) to sub-clause (g). Prescribed Authority does not have all the powers of the Civil Court. It shows that Prescribed Authority while deciding an application for release under Section 21 of the Act is not deciding a suit. Rule 15 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules provided that every application under Section 21(1) shall as far as possible be decided within two months. The intention of legislature is that proceedings for release should be decided in summary manner and expeditiously. Therefore it cannot be held that the proceedings for release under Section 21 of the Act are in the nature of a suit to which Rule 1 Order 19 may be strictly applicable. In Mahendra Swroop Verma v. Addl District Judge, 1994(1) ARC 138 a learned single Judge, after noticing the decision in M/s Usha International (supra), has held that Prescribed Authority does not act as a Civil Court and taking of evidence through affidavit is a settled practice which is being consistently followed in the State for a long time. However, I am not expressing any concluded opinion on this point as the question raised will have serious consequences affecting large number of such cases throughout the State. This question may be decided in an appropriate case where it is absolutely necessary to do so.;