K.P.Singh - (1.) THIS writ petition has been directed against the order of the Prescribed Authority dated 29-8-1986 whereby the petitioners' prayer for summoning the deponents of the affidavits filed in support of the application of contesting opposite party no. 2, namely, Merajui Nisa Begum has been refused.
(2.) THE opposite party no. 2 had filed a case against the petitioner for release of the premises in question. THE petitioner had contested her claim on the ground that the opposite party no. 2 in the present writ petition share other two buildings named in the objection. To meet the claim of the petitioner, the opposite party no. 2 has taken stand that the aforesaid houses were orally gifted to some one else and the opposite party no. 2 had no interest in those two houses. In view of the aforesaid circumstances the petitioner applied to the Prescribed Authority for summoning the deponents of the affidavits filed in support of the claim of the contesting opposite party no. 2. THE stand of the petitioner before the Prescribed Authority was to cross examine the deponents of the affidavit to elicit the truth of the allegations. By the impugned order the petitioners' prayer has been refused and aggrieved by that order the petitioner has approached this Court under Article 226 of the Constitution. The learned counsel for the contesting opposite party has tried to refute the contention raised on behalf of the petitioner and he has tried to support the impugned order of the Prescribed Authority He has also suggested that the petitioner is interested in delaying the hearing of the application for release filed by the opposite party no 2 in the present writ petition and that the petitioner can get requisite relief from the appellate court in case the case is decided against the petitioner. I have considered the contentions raised on behalf of the parties. it is true that the petitioner has come against an interlocutory order in writ jurisdiction. Therefore, I do not consider it a fit case for interference with the impugned order at this stage.
(3.) HOWEVER, after perusal of the impugned order I have a feeling that the Prescribed Authority has failed to exercise jurisdiction vested in it in the facts and circumstances of the present case. When the opposite party has set up a case of oral gift regarding the two houses pointed out by the petitioner the stand of the petitioner that the deponents of the affidavit filed on behalf of the contesting opposite party should be summoned and the petitioner should get an opportunity to cross-examine the deponents of the affidavits appear most reasonable in the circumstances of the present case. The impugned order indicates that the Prescribed Authority has not appreciated the controversy between the parties and has unreasonably refused the prayer in the circumstances of the present case. Section 34 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 provides that the Prescribed Authority or any appellate or revising authority can receive evidence on affidavits in accordance with the provisions of the Code of Civil Procedure. There is no doubt that the dispute of the parties can be decided on the basis of affidavit but that does not mean that either party wants to cross examine the deponents of the affidavits filed by the opposite party that prayer should be refused without due regard to the provisions of Code of Civil Procedure. In this connection it is proper to refer to the provisions of Order 19 Rule 1 of the Code of Civil Procedure which reads as below : " Any Court may at any time for sufficient reasons order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable : " Proviso as introduced by the State of U. P. reads as below : " Provided that if it appears to the Court, whether at the instance of either party or otherwise and whether before or after the filing of such affidavit, that the production of such witness for cross examination is necessary and his attendance can be procured, the Court shall order the attendance of such witness, whereupon the witness may be examined, cross examined and reexamined. " Order 19 Rule 2 of Code of Civil Procedure also reads below : " Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross examination of the deponent. Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs. " ;