M.N. Shukla, J. - (1.) THE petitioner is the landlord (owner) of house No. 8/374, Hing-ki-Mandi, Agra and respondent No. 2 is a tenant thereof on a monthly rent of Rs.150.00. The tenant made an application under Section 7-E of U.P. Act No. 3 of 1947 U.P. Temporary Control of Rent and Eviction Act) on February 4, 1972 praying that the landlord be ordered to make the building wind proof and water proof. During the pendency of these proceedings the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act (hereinafter referred to as the Act) came into force in 1972 and the Munsif Agra transferred the case to the Prescribed Authority (opposite party No. 1) in terms of the provision of Section 43 (2) (f) of the 1972 Act. The tenant had already sent a notice dated November 5, 1971 to the landlord outlining the particulars of the repairs proposed to be carried out to render the building wind proof and water proof, which notice is alleged to have been refused by the landlord on November 12, 1971. In these circumstances opposite party No. 2 had moved the court of Munsif, Agra under Section 7-E of the 1947 Act. The particulars of the requisite repairs have been mentioned in paragraph 5 of the said application. These allegations were denied by the present petitioner who asserted that the tenant had himself substantially damaged the building and carried out some major alterations and additions with the result that the petitioner was obliged to file suit No. 54 of 1971 and obtain a permanent injunction for restraining the tenant from damaging or altering any portion of the building. It has been stated at the Bar that the suit was decreed by the trial court but the decree was set aside in appeal and second appeal was still pending in this Court.
(2.) THE Prescribed Authority by its order which has been impugned in this writ petition directed the landlord to carry out major repairs in the disputed building within the next three months which were estimated to cost Rs.3,300.00 learned counsel for the petitioner strenuously urged that the order was plainly arbitrary and was based solely on the report of an architect obtained by the tenant. It appears that one Sri P.K. Bareja, architect, submitted his report dated April 15, 1973 which was to the effect that the roofs doors plaster of the ceiling and walls of different portions of the building had become so dilapidated and damaged that the building had ceased to be wind proof and water proof. According to this report, an expenditure of Rs.3,300.00 would be incurred for rendering the building wind proof and water proof. Besides this report, there was only the affidavit of the tenant's brother Subhas Chandra. It was stated that the tenant Prem Nath was a heart patient and, therefore, he did not file his own affidavit, although in this Court the affidavit has been sworn by Prem Nath himself. In rebuttal a counter affidavit has been filed by the Landlord's son. He has relied on the judgment of the Additional Munsif, Agra in suit No. 54 of 1971 to support his contention that whatever damages existed in the building had been wilfully caused by the tenant himself. That matter is till subjudice. On behalf of the petitioner a grievance has been made of the fact that his case was greatly prejudiced in as much as the Prescribed Authority relied mainly on the architect's report even though the architect himself was not examined nor was any affidavit sworn by him filed. Instead Subhas Chandra the brother of the tenant had stated in paragraph 24 of his counter affidavit filed before the Prescribed Authority that the architect had signed Tin his presence. Learned counsel for the petitioner stated that the report had not been proved in accordance with law. I am not inclined to lay much store by any technical irregularities in the formal proof of the report because the proceedings under the Act before the Prescribed Authority are not strictly governed by the provisions of the Code of Civil Procedure, the Evidence Act or the Transfer of Property Act. In fact Section 38 of the Act clearly provides that the provisions of this Act shall override the provisions of the Transfer of Property Act and the Code of Civil Procedure. Nevertheless, it appears to me that the Prescribed Authority has failed in the instant case to apply his mind properly to the pofit that arose for determination. It is true that the proceedings before the Prescribed Authority under Section 28 are not judicial proceedings. Ail the same it is essential that the rules of natural justice must be meticulously observed in such proceedings also. It is a settled principle of the administration of justice that if any evidence or material is relied upon to the detriment of a party that party must have a fair opportunity of meeting that evidence or material and of rebutting the same. Where the stakes are high, as in the instant case, no departure whatsoever from the strict rule of fair opportunity of leading and rebutting evidence can be permitted. It would be perilous to let the Prescribed Authority rely implicitly on the mere report of an expert without even an affidavit from that person and deny to the party adversely affected by it an opportunity of cross examining him. It is neither safe nor feasible to lay down any general or absolute rule with regard to the quantum of evidence in order to establish a claim under Section 28. Each case will eventually have to be decided on its own facts, but before an order can be approved it must stand the sovereign test, viz., that the authority has applied an independent mind squarely to the controversy between the parties and not adopted a mechanical procedure or accepted material without proper sifting and scrutiny.
(3.) A perusal of the impugned order leaves an impression in my mind that the Prescribed Authority has with extraordinary facility accepted the case of the tenant and placed implicit reliance on the expert's report without crucially examining the same. The testimony of expert is never treated as general truth. It is relied upon only when it meets with the tacit approval of the judicial conscience. To order an expenditure of Rs. 3,3001- to be incurred towards repairs of a house on the report of an expert who did not have the courage to file an affidavit or appear before the Prescribed Authority to be tested by cross-examination is, to my mind, a procedure which favours of gross injustice, I am, therefore, inclined to set aside the impugned order passed by the Prescribed Authority. Section 34(1) (b) of the Act permits 'receiving evidence on affidavits'. The opening words of the Section also state that the District Magistrate, the Prescribed Authority or any appellate authority shall have the same powers as are vested in the civil court under the Code of Civil Procedure in respect of summoning and enforcing the attendance of any person and examining him on oath. Thus, a very salutary principle enshrined in Order 19, C.P.C. has been borrowed in Section 34 of the Act. But in order that this principle may effectuate justice and not be applied arbitrarily, it is desirable that another principle, very salutary and wholesome embodied in rule 2 of Order 19 C.P.C. should not be lost sight of. Order 19, Rule 2(1) provides that upon any application evidence may be given by affidavit, but the court may, at the instance of either party order the attendence for cross examination of the deponent. This basic principle of jurisprudence that the testimony must be subjected to the court's scrutiny before it is made the basic of an order is, in my opinion, to be scrupulously observed when applying the procedure of the Code of Civil Procedure 'which has been engrafted in Section 34 of the Act about the receiving of evidence on affidavits. It is true that most fantastic reports can be obtained from experts if they are immune from the necessity of either giving an affidavit or being tested by cross examination. Therefore, I am satisfied that the impugned order was vitiated and passed not on proper application of mind by the Prescribed Authority, particularly when the parties were already litigating in the civil court and the landlord's allegation was that the house had been substantially damaged by the tenant himself.;