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1979 DIGILAW 1185 (ALL)

Raj Garg v. 3rd Addl. Dist. and Sessions Judge, Bulandshahr

1979-11-06

S.D.AGARWALA

body1979
ORDER S.D. Agarwala, J. -This is a petition under Article 226 of the Constitution of India challenging the order of the IIIrd Additional District and Sessions Judge, Bulandshahr, dated 16th July, 1977 by which the revision filed by the petitioner was dismissed as time-barred and not legally maintainable. 2. The petitioner Ls the landlady. Respondent No. 3 is the allottee. Briefly the facts are that an allotment order dated 1-11-1975 was passed by the Rent Control and Eviction Officer in favour of respondent No. 3. This allotment order is the subject matter of dispute in this proceeding. On 19th November, 1975 it is alleged by the petitioner that she came to know of the said allotment order and therefore, an application was made before the Rent Control and Eviction Officer for setting aside the said allotment order on that very day. Subsequently, as an abundant caution, the petitioner was advised to file a revision against the allotment order. The revision was filed on 1-12-1975 signed by the counsel of the petitioner. On 2-1-1976, a copy of the allotment order was filed in the Court as when the revision was filed a copy of the allotment order was not annexed with it. When the notice of the revision was served on the respondent No. 3, an objection was taken by the respondent No. 3 that the revision has not been signed by the petitioner and as such, it is not maintainable in law. In view of this objection, an application was made on 8-1-1977 to permit the petitioner to put her signature on the memorandum of revision. The petitioner also moved an application for condonation of delay before the revisional court on 8-1-1977 supported by an affidavit of her husband Manohar Swarup Garg as well as the affidavit of Mahabir Prasad Mittal, the counsel appearing on behalf of the petitioner. The revisional court dismissed the revision as not maintainable on three grounds. Firstly; that since there were no signatures on the memorandum of revision of the petitioner, the revision was not maintainable in law. The second ground was that since the copy of the allotment order stating the reasons for allotment had not been filed along with the revision, the revision was not competent. Thirdly, the revisional court refused to condone the delay and dismissed the revision as barred by time. 3. The second ground was that since the copy of the allotment order stating the reasons for allotment had not been filed along with the revision, the revision was not competent. Thirdly, the revisional court refused to condone the delay and dismissed the revision as barred by time. 3. Learned counsel for the petitioners challenged all the three grounds before me. I have heard Shri R.V. Gupta on behalf of the petitioner and Shri Jagdisb Swarup, Senior Advocate on behalf of the respondent. 4. Rule 7 sub-clauses (1) and (2) of the U. P. Urban Buildings Rules 1972 (hereinafter referred to as the Rules) which are relevant provide as follows:- (1) Every appeal or the revision under the Act shall be preferred in the form of memorandum signed by the appellant or applicant as the case may be, and his counsel, if any, and present either in person or through the counsel to the District Judge or to the Munsarim of his court. (2) Every such memorandum shall be accompanied by a copy of the order sought to be appealed or revised and shall set forth concisely and under distinct heads, the grounds of objection and such grounds shall be numbered consecutively." Shri Jagdish Swarup, learned counsel for the respondent has urged that the words used in sub-clause (i) of Rule 7 are that the applicant and his counsel must sign. He has emphasised on the word 'and and has compared this clause with Order 41 Rule 1 of the Civil Procedure Code where the words used are that every appeal shall be preferred in the form of memorandum signed by the appellant or his pleader and presented to the Court. The submission therefore, is that the legislature was aware of the fact that the filing of an appeal signed by an appellant or pleader shall be valid but in the instant case specific provisions have been made that it should be signed both by the applicant as well as the counsel if any engaged. 5. Its only object is that a proper revision be filed before an authority so that it is clear that an aggrieved party has come to court and not any fake person In order to achieve this object the rule provided for signing by the person aggrieved himself or by the counsel, if any engaged. This is the manifest intention as disclosed from the context. This is the manifest intention as disclosed from the context. In the circumstances the word 'and in the Rule should be read as 'or in order to give effect to the intention. This interpretation would give effect to the purpose of this rule. In the instant case, since the revision had been signed by the counsel, the revision was validly presented. The view to the contrary taken by the revisional court is manifestly erroneous. 6. In the alternative, even if the interpretation suggested by Shri Jagdish Swarup is accepted, then, too, in the instant case an application was made by the petitioner before the revisional court for permitting, her to sign the revision. The court has acted illegally and with material irregularity in the exercise of jurisdiction in refusing permission to the petitioner to sign the said revision. I am supported in this view by a case decided by Hon'ble Satish Chandra, J., as he then was, Smt. Vidyawati v. Chawali Devi, 1978 (UP) RCC 638. 7. In regard to the second submission, sub-clause (2) of Rule 7 of the Rules does provide that the copy of the order sought to be appealed against has to be filed along with the memorandum of revision. The petitioner has filed the order of allotment on 2-1-1976. The rule does not contemplate of filing a copy of the order stating the reasons thereof. Such an order is never communicated to a party and as such sub-clause (2) cannot be interpreted to mean that the applicant in revision should also file a copy of the order stating reasons by the Rent Control and Eviction Officer. It may be filed in order to state the applicants case but it cannot be held to be mandatory The Rule requires sending of a notice of allotment order to the landlord and in my opinion, filing of that order is sufficient compliance of sub-clause (2) of Rule 7 of the Rules framed under the Act. 8. In Shakti Padh Ray v. Smt. Annapurna Devi, 1977 (UP) RCC 121, Hon'ble K.N. Seth, J. held that the filing of a copy of an order communicating the allotment in favour of the tenant is sufficient compliance of Rule 7 (2). I fully agree with the said view. In these circumstances, the mere non-filing of the reasons of allotment cannot be held to be fatal to the revision. I fully agree with the said view. In these circumstances, the mere non-filing of the reasons of allotment cannot be held to be fatal to the revision. The revision would not be incompetent on that ground. The view to the contrary taken by the revisional court is manifestly erroneous. 9. In regard to the question of limitation, it is admitted on record that the revision was filed on 1st of December, 1975, on 8-1-1977 the petitioner moved an application for condonation of delay supported by an affidavit of her husband. It was clearly stated in the said affidavit that the petitioner had the knowledge of the order for the first time on 19th November, 1975. It was also stated that the counsel had advised that the period of limitation for filing of the revision is 30 days. The counsel who appeared on behalf of the petitioner has also filed an affidavit which is a part of this petition supporting this stand of the petitioner. No counter affidavit was filed on behalf of the respondent No. 3- The fact that the petitioner got knowledge of the order on 19-11-1975 was not denied. The revisional court has not adverted to this circumstance at all. In this connection it may further be noted that the copy of the allotment order was never served on the petitioner. This allegation of the petitioner has also gone un-controverted. In Assistant Transport Commissioner v. Nand Singh, (1979) 4 SCC 19 recently the Supreme Court has taken the view that time would start running against a party for filing a revision only when he has got the knowledge of the order. In the instant case, the knowledge of the order according to the petitioner which has gone un-controverted was acquired by her on 19th November, 1975. If this be taken as the date when the limitation began then the revision was filed within time. In this view of the matter the view taken by the revisional court Is not sustainable in law. 10. In view of the above, allow the petition and quash the order dated 16th July, 1977 and remand the revision to the court below for decision afresh in accordance with law. In the circumstances of the case, parties are directed to bear their own costs.