JUDGMENT : S.R. Singh, J. Present petition under Article 226 of the Constitution of India is directed against the order dated 28-5-90 (annexure 17 to the writ petition) passed by the Prescribed Authority/II Addl. Civil Judge, Bareilly thereby releasing the premises in question in favour of Respondent No. 3 u/s 21 of U.P. Urban Building (Regulation of Rent and Eviction) Act, 1972, (hereinafter called as 'Rent Act') and the order dated 23-3-91 (Annexure 19 to the writ petition) passed by IVth Addl. District Judge, Bareilly thereby dismissed the appeal of the Petitioners preferred against the order of the Prescribed Authority dated 28-5-90. 2. The facts of the case in brief are that the premises in dispute is a shop situate at Bara Bazar Darzi Chauk, In the town of Bareilly. The shop is in the occupation of the Petitioners on a monthly rent of Rs. 135/- in addition to Rs. 13 50 per month as water tax. One Smt. Kokila Devi, widow of Sri Ram Gopal Gupta, resident of Khairilla street was admittedly the owner/landlady of the premises in dispute. The aforesaid Smt. Kokila Devi died on 27th April 1989. Smt. Uma Agarwal, Respondent No. 3 is the daughter of aforesaid Smt. Kokila Devi. The application u/s 21 of U.P. Act No. 13 of 1972 was filed by the Respondent No. 3 claiming herself to be the owner/landlady of the premises in dispute on the basis of the registered will dated 22-9-81 having been allegedly executed in her favour by Smt. Kokila Devi. It was alleged in the application for release of the premises that the premises in dispute was bonafide required by the landlady in order to establish her unemployed son Mahesh Agarwal who wanted to start the business of electronic goods in the shop in dispute, as also to house the chamber of her Advocate husband. 3. The application for release was opposed by the Petitioners inter-alia on the grounds that the applicant's husband was a practising lawyer well established at Allahabad and that he was not practising law at Bareilly and that the shop in question was not needed by the applicant for use by her husband and the son. It was further alleged in the written statement filed on behalf of the Petitioners that the applicant's family was well settled at Allahabad where her husband was established as a practising lawyer. It was further alleged in the written statement filed on behalf of the Petitioners that the applicant's family was well settled at Allahabad where her husband was established as a practising lawyer. It was further pleaded that the application for release being false, frivolous and fictitious was liable to be rejected The title of the applicant landlady was not specifically denied by the Petitioners. All that was said in respect of the Will was that the applicant be put to strict proof of Will relied upon by her. 4. In support of her case, the Respondent No. 3 filed the original Will dated 22-9-81 besides some other documents and the affidavits including the affidavit of Rajendra Kumar Gupta, an attesting witness of the Will, besides her own affidavit and affidavits of other witnesses of hers including those who derived benefits under the Will. 5. On behalf of the Petitioners, affidavit of Sri S. K Jain, Commercial Manager, was filed besides the affidavit of Sri Sudhir Agarwal, the Sales Representative of the Petitioners and also the affidavit of one Anuj Agarwal. 6. On appraisal of the Will and the affidavits filed on behalf of the parties and upon consideration of the facts and circumstances of the case, the Prescribed Authority held that the Respondent No 3 became the owner/landlady of the premises in dispute on the basis of the Will and that she required the premises bonafide for purposes of establishing her own son in business and also housing the chamber of her husband who is a practising lawyer. On the question of comparative hardship also, the Prescribed Authority held in favour of the applicant and allowed the release application vide order dated 28-5-90 She was, however, directed to pay compensation amounting to Rs. 3240/- calculated at the rate of 135/- per month in terms of the second proviso to Section 21(1) of the U.P. Act No. XIII of 1972. The appeal preferred against the said order of eviction and release, was dismissed by the learned IV Addl. District Judge, Bareilly vide his judgment and order dated 23-3-91. Feeling aggrieved by the aforesaid judgment and order, the Petitioner-tenant has approached this Court under Article 226 of the Constitution of India for a writ of certiorari quashing the same. 7. I have heard Sri S. S. Bhatnagar, Senior Counsel for the Petitioner and Sri S.P. Agarwal, appearing for the Respondent No. 3. Feeling aggrieved by the aforesaid judgment and order, the Petitioner-tenant has approached this Court under Article 226 of the Constitution of India for a writ of certiorari quashing the same. 7. I have heard Sri S. S. Bhatnagar, Senior Counsel for the Petitioner and Sri S.P. Agarwal, appearing for the Respondent No. 3. 8 The first contention of the learned Counsel for the Petitioners is that the affidavits filed in the case before the Prescribed Authority are no evidence within the meaning of Section 3 of the Evidence Act, 1872 and accordingly, the impugned judgments are vitiated being based on evidence, inasmuch as but for the affidavits, no other valid evidence was adduced by the Respondent No. 3 in support of her claim for release of the premises in dispute in her favour u/s 21 of the Rent Act. His contention is that an affidavit may be taken to be evidence within the meaning of Section 3 of the Evidence Act, provided that it is received in the case pursuant to an order under Rule 1 or Rule 2 of the Order 19 of the CPC and since no such order was passed by the Prescribed Authority permitting the applicant Respondent no 3 to prove facts on which she was claiming release of the premises, the affidavits were nothing but waste paper and if the affidavits are ignored then neither the Will could be said to have been proved, nor the condition precedent for release of the premises u/s 21 of the Rent Act. In reply the learned Counsel for the Respondent contended that no such point was raised by the Petitioners before the Prescribed Authority or even before the Appellate Authority, nor any such specific plea or ground, has been taken in the writ petition and that the Petitioners shall be deemed to have acquiesced to the procedure followed by the Prescribed Authority in the case and cannot be permitted to raise such plea at the stage of argument in a petition under Article 226 of the Constitution of India. 9. A Conspectus of the Rent Act would indicate that the CPC as such is not applicable to the proceedings under the Act. 9. A Conspectus of the Rent Act would indicate that the CPC as such is not applicable to the proceedings under the Act. By virtue of Section 34 of the Act and Rule 22 of the rules made there under some of the powers of the Civil Courts, as specified in the section and the Rule aforesaid are vested in the Prescribed Authority or the Appellate or Revising Authority while deciding an application, appeal or revision as the case may be under the Act. As regards the applicability of the Evidence Act, it may be noticed that there is no express provision in the Rent Act excluding the provision of the Evidence Act to proceedings under the Rent Act. 10. Section 1 of the Evidence Act makes it Abundantly clear that it applies to all 'judicial proceedings' in or before any Court excepting Court Martial convened under the Army Act, the Naval Discipline Act etc. but no to affidavits presented to any court or officer, nor to proceedings before an Arbitrator. The term 'judicial proceedings' has not been defined in the Evidence Act However, according to Section 2(1) of the Code of Criminal Procedure 1973, the term 'judicial proceedings' includes any proceeding in the course of which evidence is or may be legally taken on oath. According to law lexicon Reprint Edition 1987 judicial proceeding" is a term used for proceedings in courts for the course authorised to be taken in various cases to secure the determination of controversy, to obtain the enforcement of a right or the redress or prevention of a wrong". By means of an application u/s 21 of the Act, the landlord or the landlady as the case may be, seeks the enforcement of his/her right to get a premises in occupation of a tenant released in his/her favour on proof of certain facts contemplated by the section. By means of an application u/s 21 of the Act, the landlord or the landlady as the case may be, seeks the enforcement of his/her right to get a premises in occupation of a tenant released in his/her favour on proof of certain facts contemplated by the section. The fact that the Prescribed Authority is to decide an application u/s 21 of the Rent Act according to the facts and law only after affording opportunity of hearing to the parties and not according to any policy, the fact that the Prescribed Authority is empowered to take evidence on oath (vide Section 34 of the Rent Act), and the fact that its order is appeal able, go a long way to indicate that the exercise of power u/s 21 of the Rent Act is in the nature of judicial power and proceedings under the section are 'judicial proceedings'. Section 34(2) of the Rent Act also leads me to conclude that proceedings u/s 21 are 'judicial proceeding. 11. The eviction of a tenant from the building u/s 21(1) of the Act may be ordered if the Precribed Authority" "is satisfied" that any of the following grounds exists, namely, (a) that the building is bonafide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust; (b) that the building is in a dilapidated condition and is required for purposes of demolition and new construction It was not disputed before me that "satisfaction" of the Prescribed Authority u/s 21(1) is an objective satisfaction and not a subjective one. This means that the facts constituting grounds of eviction u/s 21 of the Rent Act, have to be established and proved by relevant and accept-able "evidence" within the meaning of terms as defined in Section 3 of the Evidence Act 12. In State of U.P. v. Ist Addl. District Judge, Allahabad 1983 ARC 752, it was held by a Division Bench of this Court that proceedings u/s 21 of the Rent Act are judicial proceedings and the provisions of the Evidence Act are applicable to such proceedings. In State of U.P. v. Ist Addl. District Judge, Allahabad 1983 ARC 752, it was held by a Division Bench of this Court that proceedings u/s 21 of the Rent Act are judicial proceedings and the provisions of the Evidence Act are applicable to such proceedings. That being so, affidavit cannot be treated to be evidence within the meaning of Section 3 of the Evidence Act, but Section 34(1)(b) of the Rent Act read with provisions contained in Order 19 Rule 1 and 2 of the Code of Civil Procedure, empowers the Prescribed Authority to decide a proceeding u/s 21 of the Kent Act on the basis of affidavits. The contention of Mr. Bhatnagar, however, is that affidavit may become evidence only if it is received in evidence pursuant to an order under Order 19 Rule 1 or 2 of the CPC and not otherwise. In this connection, he has placed reliance upon a Single Judge Decision of this Court in Moti Lal Chhajo Lal v. Additional District Judge, Kanpur 1978 (1) ARC (Journal) 669, wherein a similar contention was raised on behalf of the Petitioner of the said writ petition. The learned Single Judge (Hon. U. C. Srivastava, J.) has made certain observations, which support the contention raised by Sri Bhatnagar in the present writ petition. This case was cited in M/s. Kunwar Ayurvedic Pharmacy (Pvt.) Ltd. v. 8th Addl. District Judge, Kanpur 1981 ARC 414, but the learned Judge (Hon. S.D. Agarwal, J.) observed that the question was not specifically raised in M/s. Moti Lal Chhajjo Lal's case and held that "Legislature by virtue of Clause (b) specifically contemplated that the evidence will be received in the shape of affidavit. Therefore, it was not necessary to specifically pass an order accepting such affidavit before it could be treated as evidence in the case." I am unable to agree with the view taken by brother Agarwal, J. in the aforesaid case. Section 34(1)(b) confers upon the authorities under the Rent Act, in the matter of reception of affidavits in evidence for disposal of application, appeal or revision, as the case may be, under the Act, the same powers as are vested in the Civil Courts under the Code of Civil Procedure. Conferment of the power, in my opinion, must carry with it the manner prescribed by Order 19 of the Code for exercise of the power therein. Conferment of the power, in my opinion, must carry with it the manner prescribed by Order 19 of the Code for exercise of the power therein. The power and the manner of its exercise are so inseparably interwoven with and so integrally engrafted to each other that the severance of one from the other is not possible except on pains of causing injury to the statute and rendering the affidavits as no better than pleadings not amounting to evidence within the meaning of Section 3 of the Evidence Act and invalidating the orders based on such affidavits. Being not in agreement with the view expressed on this question in the case of M/s. Kunwar Ayurvedic Pharmacy (Pvt.) Ltd. (supra). I would have referred the question for decision to a larger bench, but for the two Supreme Court's decisions to be referred to hereinafter. 13. In Sudha Devi v. M.P. Narain AIR 1988 SC 1341, a three Judge bench of Hon. Supreme Court held that affidavits 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 reasons, the court passes an order under Order 19 Rule 1 or 2 of the Code of Civil Procedure. 14. In 'Khandesh Spinning and Weaving Mills' v. R.G.K. Sangh, a five Judge bench of Hon. Supreme Court, while examining Section 118 of the Bombay Industrial Relation Act 1946, a provision similar to the one contained in Section 34 of the Rent Act, vis-a-vis the provisions of Order 19 Rule 1 or Rule 2 of the Code of Civil Procedure, has observed as follows: (1) For the purpose of holding an enquiry or a proceeding under the Bombay Industrial Relations Act, 1946, Section 118 of the said Act confers on the Industrial Court the same powers as are vested in Courts in respect of (a) proof of facts by affidavits (b) summoning and enforcing the attendance of any person and examining him on oath; (c) compelling the production of document; and (d) issuing commissions for the examinations of witnesses. In Courts facts have to be established either by oral evidence or by documentary evidence proved in the manner prescribed by law. But Order XIX of the CPC empowers the Court to have particular facts proved by affidavits. In Courts facts have to be established either by oral evidence or by documentary evidence proved in the manner prescribed by law. But Order XIX of the CPC empowers the Court to have particular facts proved by affidavits. Under Rule 1 thereof "any Court may at any time for sufficient reason order 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 condition as the court thinks reasonable". But it is subject to the proviso that where it appears to the Court, that either party bonafide desires the production of a witness for cross examination, and that such witness can be produced, an order shall not be made authorising the evidence of such, witness to be given by affidavit. Under rule 2, "upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross examination of the deponent." A combined effect of the relevant provisions is that ordinarily a fact has to be proved by oral evidence, but the Courts, subject to the conditions laid down in Order XIX, may ask a particular fact or facts to be proved by affidavits. Industrial Courts may conveniently follow the said procedure. The Supreme Court went on to hold further that: If they agree to a decision on affidavits, that course may be followed. But in the absence of an agreement, the procedure prescribed in Order XIX of the CPC may usefully be followed by the tribunals so that both the parties may have full opportunity to establish their respective cases. 15. On the basis of the aforesaid authority of the Supreme Court and looking at the scheme and object of the Rent Act as also the practice in vogue of receiving affidavits in proof of disputed issues in proceedings under the Rent Act without a formal order under Order 19 of the Code as of rule, I am inclined to take the view that affidavits may be treated as evidence within the meaning of Section 3 of the Evidence Act either on the basis of an express order under Order 19 of the Code or on the basis of an agreement between the parties which may be express or implied to get a decision on the basis of affidavits. The reason prompting the observation that such agreement between the parties may be express or implied and inferred from their conduct is that the passing of an order under Order 19 Rule 1 or 2 of the Code in cases under Rent Act is almost a formality, for so far as 'sufficient reasons' are concerned these are supplied by the object and scheme of the Act which, inter-alia, aims at expeditious disposal of the cases. Petitioners in the instant case not only did not object to the affidavits filed on behalf of the landlady to be taken in evidence, but they had voluntarily and effectively submitted to the procedure adopted by the Prescribed Authority and contested the claim of the landlady by filing affidavits with a view to rebut the affidavits filed on behalf of the landlady-Respondent No. 3. The Petitioners having failed to demur to the affidavits on behalf of the Respondent No. 3, being taken in evidence and having filed affidavit in support of their own claim, shall be deemed to have acquiesced to the procedure followed by the Prescribed Authority and shall be taken to have agreed to a decision of the case on the basis of affidavits even though the Prescribed Authority may not have passed an order under Order 19 of the Code calling upon the parties to file affidavits in proof of the disputed facts and issues in the case. In the appellate court also, the Petitioners did not raise this plea nor any specific plea or ground in this regard has been taken by them in the writ petition. The point has been advanced for the first time at the argument stage. In matters of procedure and practice, as in matters of discretion, I think, I would be justified in refusing to interfere with the decision of the authority under the Rent Act in absence of proof of any prejudice to the Petitioners for "a man who dose not speak where he ought, shall not be heard when he desires to speak." Accordingly, I am cot inclined to permit the Petitioners under Article 226 of the Constitution to raise this plea of affidavits being inadmissible in evidence for want of an order under Order 19 Rule 1 or Rule 2 CPC for the first time in this Court and that too at the argument stage. 16. 16. The acquiescence of a party who might take advantage of an error, obviates its effect (Consensus Tollit Errorem) is a well known maxim which may be pressed in to service in the case in hand, If the parties allowed the authorities under the Rent Act to decide the application appeal or revision as the case may be, on the basis of such affidavit, then they are precluded from challenging the orders on this ground that the affidavits were liable to be ignored in absence of an express order under the provisions of Order 19 of the Code for an objection at appropriate stage could have avoided the irregularity or illegality in question, and saved enormous time and energy of all concerned. This to my mind, provides sufficient justification for refusing to interfere under Article 226 of the Constitution with the orders impugned in the writ petition 17. The next contention urged by Sri Bhatnagar was that the Will being relied upon by the Respondent No. 3 was not proved in accordance with Section 68 of the Evidence Act and as such, it was inadmissible in evidence His contention is that the statement of the so-called attesting witness namely, Sri Rajendra Kumar Gupta in his affidavit filed before the Prescribed Authority, does not prove the Will within the meaning of Section 68 of the Evidence Act. This contention too is not acceptable. It is evident from Section 1 of the Evidence Act itself that the provisions contained in the Act are not applicable to affidavits, as such the mode of proof of a Will and its exclusion from evidence in the event of the same being not proved in accordance with law as contemplated by Section 68 of the Evidence Act cannot be applied to the proof of Will through an affidavit admitted in evidence u/s 34(1)(b) on the Rent Act. The statement of Rajendra Kumar Gupta as contained in his affidavit, copy of which has been annexed as Annexure 3 to the writ petition, clearly constitutes proof of the Will inasmuch as the said witness has clearly stated in his affidavit that Smt. Kokila Devi executed the Will dated 22-9-81 in his presence Paragraphs 3, 4 and 6 of the affidavit of Sri Rajendra Kumar Gupta, clearly prove that Smt. Kokila Devi signed the Will in his presence after fully understanding the contents of the documents. The witness has further stated that he himself and the other attesting witness affixed their signatures on the Will in the presence of Smt. Kokila Devi after she had put her own signatures The Prescribed Authority as also the Appellate Authority have concurrently relied upon the affidavit of Sri Rajendra Kumar Gupta, which finds support from the affidavits filed by Respondent No. 3 as also some of the legatees, who derived the benefits under the same very Will dated 22-9-81. As such it is not possible for me to tike a contrary view and hold, as contended by the learned Counsel for the Petitioners, that the execution of the Will was not proved in accordance with law. 18. Sri S. S. Bhatnagar, learned Counsel for the Petitioners, then contended that the Will though required by law to be attested by at least two witnesses, was really not attested in accordance with law. This contention of Sri Bhatnagar is based on the fact that two attesting witnesses have affixed their signatures on the Will not at the bottom of the Will but on the margin thereof. According to Mr. Bhatnagar, an attesting witness must affix his signatures or thumb impression, as the case may be, in token of attestation of the Will at the bottom of the document and if such witness has affixed their signatures or thumb impression on the margin, then such a witness can at best be called as Marginal Witness and not an attesting witness. I find no merits in this contention of Sri Bhatnagar. The law does not provide any particular procedure for attestation of a document. In the case of a Will, all that is required is that it must be attested by at least two witnesses. I find no merits in this contention of Sri Bhatnagar. The law does not provide any particular procedure for attestation of a document. In the case of a Will, all that is required is that it must be attested by at least two witnesses. The word 'attested' in relation to an instrument as defined in Section 3 of the Property Act means "shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant, a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time and no particular from the attestation shall be necessary " The object of attestation is to ensure that there is no fraud or other vitiating circumstances in the execution of the document. From the above definition it is clear that in order to constitute a valid attestation, the essential conditions are : (1) there must be two attesting witnesses : (2) each of them must have seen the executant sign or affix his mark to the instrument; and (3) each of the two attesting witnesses must have signed the instrument in the presence of the executant. It is not at all necessary, in order to constitute a valid attestation that the attesting witnesses must sign, as contended by the learned Counsel for Petitioner at the bottom of the Will. In fact the attestation consists in witnessing the fact of execution of a document and if the witnesses present there, have seen the executant executing the document and in token thereof they have also signed the document, then that is a valid attestation. It is noteworthy that the Petitioners have in a sense admitted the 3rd Respondent as landlady by calling her as such in various paras of the writ petition. Resultantly, the third contention of the learned Counsel for the Petitioners is also devoid of merits. 19. No other points have been pressed into service by the learned Counsel for the Petitioners. It is noteworthy that the Petitioners have in a sense admitted the 3rd Respondent as landlady by calling her as such in various paras of the writ petition. Resultantly, the third contention of the learned Counsel for the Petitioners is also devoid of merits. 19. No other points have been pressed into service by the learned Counsel for the Petitioners. The finding recorded by the Prescribed Authority, as affirmed by the Appellate Authority on the question of bonafide need and comparative hardship, was not assailed before me on any ground other than the ground that the findings on these questions were based on affidavits which were inadmissible in evidence, but in view of what 1 have dwelt upon supra, this contention cannot be sustained. 20. In the result, the writ petition fails and is dismissed in limine. Since the Respondent No. 3 appeared by caveat and no notices were issued, I refrain from making any orders as to the costs. Stay order dated 11-4-1991 stands discharged.