The main legal point established in the judgment is that the power of cross-examination and examination-in-chief through affidavits is discretionary, and detailed applications and affidavits are necessary to justify cross-examination.

Heard Sri C. D. Bahuguna, Advocate for the petitioner, Standing Counsel for the respondent no. 1 and Sri B. D. Kandpal, Advocate for the respondent no. 2.

2. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 12th June, 2006 passed by the respondent no. 1 and further for a writ of mandamus commanding the respondent no. 1 to permit the petitioner for cross-examination on the statements made by him in his affidavit filed before the Pre scribed Authority.

3. Briefly stated, respondent ho. 2/ landlord filed a release application un der Section 21 (1 ) (a) of the U. P Ur ban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 in the Court of Prescribed Authority Nainital on 21 -1 1 -2003. The case was registered as Rent Control Case No. 11 of 2003.

4. During the pendency of the aforesaid release application, both the parties have filed the affidavits in sup port of their cases.

5. Petitioner has filed an application (Annexure No. 13 to the writ petition), where, he has prayed for cross-examina tion. The prescribed authority has re jected the application on the ground that affidavits which have been filed, have been duly controverted by the land lord and as such there is no occasion for cross-examination. The prescribed au thority has observed to the following effect :

Hindi 6. Counsel for the petitioner Sri C. D. Bahuguna has argued that before accepting the affidavits in the case, the cross examination is necessary, on the same part, the evidence of the parties. Order 19 Rule 1 of the C. RC. provides the power to prove the affidavit. It reads as under :

"1. Power to order any point to be proved by affidavit.- Any Court may at any time for sufficient reason or der 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 condi tions as the Court thinks reasonable:

Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit. "

7, Counsel for the petitioner has re ferred Mohammad Hasnain Vs. 1st Add/. Civil Judge, Jaunpur and another ARC 1995 (1) 512. Relevant observations are quoted below :

"ordinarily cross-examination should be permitted under Section 21 and it is only rare and exceptional cases where cross-examination should be refused. Section 21 proceedings are more similar to a Civil Suit where there is a right to cross-examination. Although Section 21 proceedings are not strictly speaking a suit but yet they have many of the features of a Civil Suit.

It would be appropriate in Section 21 proceedings if examination-in-chief is permitted on affidavit but the deponent should be subjected to cross-examination otherwise the ve racity of the statement on affidavit cannot be properly attested. Mere filing of a counter-affidavit is no sub stitute for cross- examination and it does not properly test the veracity of the witnesses. "

8. In Smt. Sudha Devi Vs. M. P. Narayanan and others AIR 1988 SC 1381, the Division Bench has observed as under :

"besides, affidavit are not included in the definition of evidence in Section 3 of the Evidence Act and can be used as evidence only if for sufficient reason court passes an order under Order 19, Rule 1 or 2 of the Code of Civil Procedure. "

9. In Mohammad Ismail Khan Vs. Prescribed Authority, Barielly and oth ers 2003 (1) ARC Page 670, it has been observed as under :

"5. A perusal of the above order will show that the learned Prescribed Authority did not consider the mat ter on merits but rejected the appli cation with casual observation. He is expected to apply his mind to the facts and circumstances of the case as well as to the respective conten tions of the parties before passing an order. The order, extracted above, appears to have been passe