Affidavits sworn before a Notary are admissible in evidence in proceedings under the U. P. Act No. 13 of 1972, and their non-consideration by the appellate authority vitiates the finding of fact recorded by the authority.

( 1 ) HEARD petitioners counsel Shri S. N. Verma and Shri M. A. Qadeer, counsel appearing for the contesting respondent.

( 2 ) IT appears that an application for release was made by the contesting respondent landlord under section 21 (1) (a) of the U. P. Act No. 13 of 1972, hereinafter referred to as the Act. The petitioner is undisputedly tenant in the disputed accommodation for the last many years and has been using the accommodation in question as its godown. The landlord in the release application based his clalm on the ground that as he was in service and posted at Mokamah, his wife and children were residing in his ancestral house at Gorakhpur and because of family partition they required the disputed accommodation for their residential purpose. The clalm of the landlord was contested by the petitioner on a number of grounds, one of them being that the accommodation in question is not at all suited for residential purpose, being in the shape of a tinshed godown only. The Prescribed Authority rejected the landlords application for release accepting the plea of the petitioner. The landlord filed appeal under section 22 of the Act before the District Judge and during the pendency of the same, an application for amendment of release application was made on behalf of the landlord and the same was allowed, whereby certain additional facts were brought on record such as that the landlord has resigned and left the service and after that he has shifted to Calcutta temporarily and in the meantime his mother died and, therefore, in view of the changed circumstances he wanted to shift to Gorakhpur to settle there with his family and for that reason, the disputed accommodation was bona-fide required by him and his family. The landlord also filed evidence in support of the alleged developments. The tenant filed objections/written statement supported with an affidavit wherein the clalm made by the landlord was denied and it was specifically pleaded again that the accommodation in question was not suitable for residential purpose. It was further stated that the landlord has permanently settled at calcutta where he was also running a business and, therefore, his calm that he would come to Gorakhpur to settle there permanently was incorrect and not bona-fide.

( 3 ) THE lower appellate court allowed the appeal of the landlord by the impugned order dated 7. 8. 89 which has been challenged in this writ petition.

( 4 ) LEARNED counsel for the petitioner contended that the lower appellate court has misdirected itself in not taking into consideration the affidavit filed on behalf of the tenant petitioner in support of its defence solely on the ground that the said affidavits were inadmissible as they were sworn before Notary and not before the oath Commissioner. According to the submission made by Sri verma, counsel for the petitioner, the non-consideration of the said affidavits has resulted in great miscarriage of justice and the petitioner has been greatly prejudiced and for this reason alone the finding of fact recorded by the appellate authority is vitiated in law as the said finding has been arrived at on consideration of evidence of one side only. In support of submission reliance has been placed on the decision in the case of Kashi Nath Srivastava Vs. Mrs. G. S. Tewari and others 1982 ALJ 642. In this case the question raised was whether the affidavits sworn before the Notary are not admissible in evidence and could not be taken into consideration because of the language used in section 34 (6) of the Act. Honble K. N. Goyal, J. examined the matter thoroughly and answered the question saying that the provision of section 34 (6) was merely an enabling provision and it could not shut out an affidavit sworn before a Notary which in any case would have been admissible even without any express provision in that behalf. Section 34 (6) does not exclude consideration of affidavits sworn before the Notary. Learned counsel for the respondents on t