Hakim Rafat Hussain vs Prescribed Authority and Another

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 application by the Petitioner for recalling an earlier order dated 20th January, 1997.

I have heard the learned counsel for the tenant Petitioner.

The Petitioner was a tenant Respondent before the prescribed authority. In an application for release u/s 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 October, 1996 the prescribed authority ordered the case to proceed ex parte and fixed 14th November, 1996, for ex parte evidence on that date, the landlord filed three affidavits and some documents. Thereafter, the tenant applied for recalling the order for ex parte hearing and his request was allowed. The tenant Petitioner filed a written statement and the Petitioner was directed to file his evidence by the 20th of January, 1997. On that date, the landlord moved an application 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, be recalled. His contention was that the order for proceeding ex parte 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.

Learned counsel for the Petitioner Sri M. A. Qadeer contends that the ex parte order having been set aside, the evidence taken in pursuance of that order becomes inadmissible. He placed reliance on Mst. Lakshmi Devi Vs. Roongta and Co. and Others, , in which an ex parte decree was set aside and again an ex parte decree was passed relying on the evidence recorded in the earlier ex parte proceedings. It was held that the earlier ex pane decree having been set aside, the parties 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 Ahmed Khan Vs. I.A. Patel, in which similar observations were made.

Both these cases relate to ordinary civil proceedings in a civil court. In the present case, the proceedings are pending before the prescribed authority under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Section 34 thereof permits taking of evidence in the form of affidavits. In the case of oral evidence, witnesses have to be examined before the Court and in the presence of the contesting Respondent. The Court as well as the parties have a right to observe the demeanour of the witnesses. There is no such thing in the case of affidavits. They are prepared outside the Court in the absence of the opposite party and are then filed in the Court. The opposite party is only entitled to receive a copy thereof. No stage is prescribed in the aforesaid Act for filing the affidavits and the Petitioner may file the affidavits to be relied upon by him along with the petition itself. The only right that a Respondent has is to have the copies and a right to file affidavits in opposition. This right is not being denied to the Petitioner and, as stated in the impugned order, copies of the affidavits had been supplied to the Petitioner. Thus, I find no illegality in the impugned order passed by the prescribed authority.

The writ petition has no force and is hereby dismissed.