JUDGMENT
J.C. Gupta, J.
1. This is tenant’s writ petition.
2. Heard petitioner’s counsel Shri S. N. Verma and Shri M. A. Qadeer, counsel appearing for the contesting respondent.
3. 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. XIII of 1972 thereinafter 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 Unshed 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.
4. 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.
5. Learned counsel for the petitioner contended that the lower appellate court has misdirected itself in not taking into consideration the affidavits 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 his submission, reliance has been placed on the decision in the case of Kashi Nath Srivastava v. 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. 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 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 bearing 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.
6. 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 whereby 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 taw strictly enforced sometimes becomes the severest injustice.
7. For the reasons stated above, the impugned judgment of the appellate authority cannot be sustained.
8. The writ petition is allowed. The judgment of the appellate authority dated 7.8.89 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 dale a certified copy of this order is produced. In the circumstances of the case the parties shall bear their own costs.