# Bulandshahr v. Dy. Registrar, Firms Societies and Chits, Meerut

- **Citation:** (1999) 1 ILRA 44
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-08-03
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bulandshahr-v-dy-registrar-firms-societies-and-chits-meerut-39111
- **Pages:** 5

## Text

44 THE INDIAN LAW REPORTS [1999
Bulandshahr Vs. Dy. Registrar, Firms Societies and Chits, Meerut
and others decided on 3.8.1998, wherein a similar view has been
taken by this Court.

12. In conclusion, there is no justification, whatsoever, to
interfere with the impugned order dated 18.8.1997, Annexure 7 to
the writ petition, passed by the Dy. Registrar, Firms, Societies and
Chits, Kanpur, respondent no. 1.

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By the Court

This is tenant's writ petition.
1998
------
August, 19
1 All.] ALLAHABAD SERIES 45

1. Heard petitioner's 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 claim 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 claim 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 landlord's 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 claim 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
claim 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.

1998
------
M/s Bata
India Ltd.
 Vs.
A.D.J. II,
Gorakhpur
& others
------
J.C.Gupta, J.
46 THE INDIAN LAW REPORTS [1999
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 AIJ 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. Hon'ble 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 the other hand argued that where something is
required to be done in certain manner it has to be done only in that
manner or not at all and all other modes get necessarily excluded. He
submitted that a specific procedure of swearing of affidavit has been
provided in section 34(6) of the Act and therefore the swearing of the
affidavits has to be done in that manner alone and not otherwise and
since section 34(6) does not speak of swearing of affidavits before
Notary, any affidavit sworn before such an officer cannot be read in
evidence in proceeding under the Act. It would appear from the
decision in Kashi Nath's case (Supra) that a similar argument was
also made before the Court, but the same was rejected by the learned
Judge holding that the aforesaid principle is applicable primarily in
relation to exercise of statutory powers by public authorities and is
more rigidly enforced in cases where power is of drastic nature but
even in regard to exercise of public powers, the rule is not of
universal application. No rule of public policy can be imagined for
exclusion of affidavits sworn before the Notary from proceedings
under the Act. The provision contained in section 34(6) of the Act
being procedural in nature has to be interpreted in such a way so as
to advance justice and facilitate to meet its end and court should not
1998
------
M/s Bata
India Ltd.
 Vs.
A.D.J. II,
Gorakhpur
& others
------
J.C.Gupta, J.
1 All.] ALLAHABAD SERIES 47
take a very strict, technical and narrow view. What was required to
be seen in such matters was whether there has been substantial
compliance of the provisions or not. In view of the aforesaid decision
and also having regard to the scheme of the Act, the affidavits sworn
before the Notary cannot be excluded from consideration by the
authorities acting under the provisions of the Act. The appellate
authority, therefore, in the present case committed a manifest error of
law in not considering the affidavits filed on behalf of the petitioner
simply on a technical ground. It could not be disputed from the
respondent's side that the affidavit filed on behalf of the petitioner
were very material having a hearing on the issues involved in the
case. It is well established law that non-consideration of material
evidence which goes to the root of the matter in controversy vitiates
even a finding of fact recorded by the court below and in such cases
this Court has the power to interfere.

5. The problem involved could be viewed from another angle.
If the appellate authority was of the opinion whether rightly or
wrongly, that the affidavits filed by the petitioner were defective
having not been sworn before the Oath Commissioner, it should have
either rejected them before the judgment or should have asked the
petitioner to remove those defects. However, the lower appellate
authority proceeded to reject the same only in the judgment where by
the petitioner's rights were greatly prejudiced. It is well known that
the rules of procedure are meant to subserve and not to govern the
cause of justice. Technicalities should not be allowed to come in the
way of dispensation of justice. The maxim "Jus Summun Saepa
Summa Est Malitia" suggests that law strictly enforced sometimes
becomes the severest injustice.

For the reasons stated above, the impugned judgment of the
appellate authority cannot be sustained.

6. The writ petition is allowed. The judgment of the appellate
authority dated 7.3.89 is quashed and the case is sent back to the
appellate authority to decide the appeal afresh in accordance with law
and in the light of the observations made above. Since the matter has
been pending since 1985, the appellate authority shall make every
endeavour to decide the appeal expeditiously preferably within two
months from the date a certified copy of this order is produced.

Petition Allowed.
1998
------
M/s Bata
India Ltd.
 Vs.
A.D.J. II,
Gorakhpur
& others
------
J.C.Gupta, J.
48 THE INDIAN LAW REPORTS [1999
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By the Court

1. One Smt. Paliwal was appointed as Incharge Head Mistress
of the School by the order dated 17th May, 75. The petitioner had
challenged the said appointment on the ground that she is legally
entitled to be appointed as Incharge Head Mistress as well as on
account of her qualification as regular Head Mistress. The claim
petition was allowed in part in the manner following :-

"In the circumstances, the claim petition is
partly allowed. The impugned order dated
17.5.1975, passed by the Basic Shiksha
Adhikari appointing Smt. Paliwal, opposite
party no.3 as Incharge Head Mistress, is
declared
in
effective
being
without
jurisdiction and is quashed. The petitioner is
also declared to be the Incharge Head
Mistress as of the Senior Basic Balika
Vidyalaya, Devai with effect from 30.6.1972
but the opposite party no.1 is directed to hold
1998
------
August, 20