ASHFAQ AHMAD Vs. PRESCRIBED AUTHORITY CIVIL JUDGE

JUDGEMENT

(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.

(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.