Hon’ble Surya Prakash Kesarwani, J.—Heard Sri Saurabh Srivastava, learned counsel for the defendant-tenant/petitioners.

This writ petition under Article 226 of the Constitution of India has been filed praying for the following relief:

“Issue a writ, order or direction in the nature of certiorari, setting aside/quashing the impugned dated 1.2.2018 passed by prescribed authority/Judge Small Causes Court, Kanpur Nagar in Rent Case No. 5 of 2011 (Swami Dayal Kaityar v. Mahesh Kumar and another)”

2. By the impugned order dated 1.2.2018 the application for cross-examination of the deponent of the affidavit (paper No. 36 Ga), i.e., Sri S. S. Kushwaha, Engineer and Architect, has been rejected on two findings, firstly, that Rule 22 does not provide for cross-examination and there is no provision under the Act for cross-examination from witness and secondly, the application for cross-examination has been moved with intent to delay with the disposal of the case. Aggrieved with the aforesaid order dated 1.2.2018 the defendant-tenant/petitioners have filed the present writ petition.

Submissions

3. Learned counsel for the petitioners submits that Section 34(1)(a) of U.P. Act 13 of 1972 confers power upon the prescribed authority and certain other authorities under the Act to summon and enforce the attendance of any person and examining him on oath. Therefore, the observation of the prescribed authority in the impugned order that there is no such provision, is wholly incorrect. In support of his submission he relied upon a Division Bench Judgment of this Court in the case of State of U.P. and another v. Ist Additional District Judge, Allahabad and others, 1983 (1) ARC 752 (para 11 to 16), Mahesh Chand v. Additional Civil Judge (Senior Division) Bulandshahar/Prescribed Authority, 2005 (1) ARC 558 and Mohd. Rauf v. Prescribed Authority (Civil Judge, Senior Division), Unnao and others, 1997 (2) ARC 589.

Discussions and findings

4. From the record of this writ petition it appears that an application under Section 21(1)(b) of U.P. Act 13 of 1972 was filed by the plaintiff-respondent on 30.5.2011 for release of the tenanted accommodation being part of house No. 51/7P (new No. 51/43) Mohalla Ramganj, Kanpur Nagar. On the ground that the said house is more than 100 years old and it is in a dilapidated condition and the plaintiff requires it for demolition and new construction. Written statement was filed by the defendant-tenant/petitioners in December, 2012. In evidence inspection report dated 10.2.2011 of Shyam Associates (Engineers and Architects), Kanpur was filed by the plaintiff-respondent in which detail facts with regard to the condition of the house in question including its walls, roof, slab, floor and joinery etc. have been mentioned and an opinion has been expressed that the construction of the house is very old say about 100 years and the condition is poor. Estimated cost of demolition and disposal of Malwa, cost of new construction have also been given in the said report alongwith a map. An affidavit of Er. S. S. Kushwah of M/s Shyam Associates dated 19.11.2012 was also filed giving detail of the condition of construction of the disputed house. According to the defendant-tenant/petitioner he has also filed a report of Er. Mahesh Chand, approved Valuer and Engineer dated 19.9.2013.

5. An affidavit of the aforesaid Er. Mahesh Chand was also filed an evidence by the defendant-tenant/petitioners dated __January, 2014 in which the deponent of the affidavit has given details about himself in paragraphs 1, 2 and 3 and thereafter in paragraph 4 he stated that he has personally inspected the disputed property and has given his inspection report which has been sent by him and the contends of the report forms part of his affidavit and the said report is correct.

6. After about 7 years of institution of the rent case and after about 6 years of submission of the engineer’s report and his affidavit filed in evidence by the plaintiff-landlo