- (1.) M. C. Agarwal, J. By this petition under Article 226 of the Constitution of India, the petitioner challenges an order dated 10th March, 1997, passed by the prescribed authority rejecting an applica tion by the petitioner for recalling an earlier order dated 20th January, 1997.
(2.) I have heard the learned counsel for the tenant petitioner. The petitioner was a tenant respon dent before the prescribed authority. In an application for release under Section 21 (1) (a) of the U. P. Urban Buildings (Regulation of letting, Rent and Eviction) Act, 1972, the tenant respondent did not appear before the prescribed authority and on 17th Oc tober, 19%, the prescribed authority or dered the case to proceed ex pane and fixed 14th November, 1996, for ex pane evidence on that date, the landlord filed three af fidavits and some documents. Thereafter, the tenant applied for recalling the order for ex pane hearing and his request was allowed. The tenant petitioner filed a written state ment and the petitioner was directed to file his evidence by the 20th of January, 1997. On that date, the landlord moved an ap plication for grant of one month's time to file his evidence, including fresh affidavits of the persons whose affidavits had been filed earlier. The Court below directed that the affidavits already filed will be read in evidence and allowed the landlord to file other affidavits. Then, the tenant petitioner moved an application that the aforesaid order dated 20th January, 1997, he recalled. His contention was that the order for proceeding ex pane having been set aside, the affidavits filed in pursuance of that order are not admissible in evidence. This contention was rejected by the impugned order dated 10th March, 1997, which states that copies of those affidavits have been supplied to the tenant petitioner.
(3.) LEARNED counsel for the petitioner Sri M. A. Qadeer contends that the ex pane order having been set aside, the evidence taken in pursuance of that order becomes inadmissible. He placed reliance on Mst. Lakshmi Devi v. Roongta and Company and others (AIR 1962 Allahabad 381) in which an exparte decree was set aside and again an ex pane decree was passed relying on the evidence recorded in the earlier ex pane proceedings. It was held that the earlier ex pane decree having been set aside, the par ties become entitled to be relegated back to the stage at which they were absent and could insist that everything which had been done in their absence should be done again in their presence. Reliance is also placed on Aziz Ahmad Khan v. I A. Patel (AIR 1974 AP 1 (FB)) in which similar observations were made.;