Abdul Ahmad v. District Judge, Allahabad — 1982 DIGILAW 1111 (ALL)

JUDGMENT A.N. Verma, J. - This petition is directed against the order passed by the learned Distt. Judge, Allahabad dated 5.4.1982 setting aside an order passed by the prescribed Authority under section 21 of U.P. Act No. 13 of 1972 and directing the Prescribed Authority to dispose of an application filed by the petitioner under section 21 according to law. By the impugned order the appellate Court has also directed that Mohd. Hafeez alias Munny... respondent No. 4 herein be restored to possession of the disputed shop. At the least hearing of this petition I had remitted an issue to the Distt Judge for disposing of an application under section 15 of the limitation Act which was tiled by the said respondent for condonation of delay in filing the appeal upon which the impugned order has been passed. The said application had remained undisposed and hence the necessity to remit the issue to the learned Distt. Judge. The learned Distt. Judge has since returned a finding that there was sufficient cause for the delay in filing the appeal. Learned counsel for the petitioner has challenged the correctness of that finding also by means of a separate application. The finding is dated 1.9.1982. 2. Counsel has addressed me on the above finding also. I shall dispose of the objections filed by the petitioner against that finding first. 3. The relevant facts for the disposal of the controversy relating to the delay in filing the appeal are that an order purporting to be under section 21 was obtained by the petitioner against one Abdul Asad-respondent No. 5 herein on 21.10.1981. This order was passed on the basis of a compromise said to have been reached between the petitioner and the said Abdul Asad who is no other than the own son of the petitioner. In pursuance of the order, the respondent No. 4 Mohd. Hafeez Khan was forcibly evicted from the disputed shop with the help of the police on 15.11.1981 on 19.12.1981 the said respondent filed an application before the prescribed Authority for being put back in possession. The application was made on the allegation that the application filed by the petitioner under section 21 was a fraud upon the court and it was the result of collusion between father and son. Neither the petitioner was the landlord nor was Abdul Asad the tenant. It was Mohd. The application was made on the allegation that the application filed by the petitioner under section 21 was a fraud upon the court and it was the result of collusion between father and son. Neither the petitioner was the landlord nor was Abdul Asad the tenant. It was Mohd. Hafeez who was the real tenant in occupation of the disputed shop of which the landlord was some waqf. The eviction of the said respondent was, therefore, on the face of it patently illegal and improper and he was entitled to be restored to possession. This application was rejected by the prescribed Authority by an order dated 12th of January, 1982 on the ground that he had no jurisdiction to go into all the questions raised in the application. The next date i.e. on 13th January, 1982, the said respondent filed an application for a certified copy of the order dated 12th January, 1982- The 14th of January, 1982 happened to be a holiday on account of Makar Shankranti. The said respondent, therefore, made an application for the certified copy of the original order under section 21 on 15th of January, 1982 and the appeal in question was filed on the next date i.e. 16th of January, 1982. In the application for condonation of delay and in the affidavit which were filed therewith explaining the delay the case set up by Mohd. Hafeez Khan was that he had no knowledge of the application under section 21 or the proceedings commenced thereon nor even of the order passed on the 21st of October, 1981 until the Police forcibly evicted him on 15th of December, 1981. There after the said, respondent was prosecuting his remedy for being put back in possession before the prescribed Authority. As he was prosecuting his remedy bona fide before an authority of competent jurisdiction, the delay if any between 15th of December, 1981 and the 16th of January, 1982 deserved to be condoned. There was sufficient cause for the delay in filing the appeal. 4. Learned counsel for the petitioner submits that the period prescribed under section 22 for an appeal against an order under section 21 is 30 days from the date of the order. As the order was passed on 21st of October, 1981 limitation had to be computed from the date of that order.The contention is without any merit. 5. Mohd. 4. Learned counsel for the petitioner submits that the period prescribed under section 22 for an appeal against an order under section 21 is 30 days from the date of the order. As the order was passed on 21st of October, 1981 limitation had to be computed from the date of that order.The contention is without any merit. 5. Mohd. Hafeez Khan was not a party to the proceedings under section 21. He was not given any notice of the said proceedings nor did he have knowledge of the same in any other manner. Under the circumstances the date of order within the meaning of section 22 in his case would the date on which he derived the knowledge of the order dated 21st of Dec., 1981. In the case of Vinod Chandra Dubey v. IX Additional District and Sessions Judge, Allahabad 1979 All. Rent Cases 94. a learned Judge of this court had occasion to consider an identical controversy. It was held reling one two decisions of the Supreme Court reported 1961 Supreme Court 1500 and 1963 Supreme Court 1604, that where a statutory notice is not issued to the parties concerned, the date of the order would be the date on which the party derives actual of constructive knowledge of the order sought to be challenged. I am in respectful agreement with the statement of law contained in these decisions. Following these decision for hold that the date of order in the present for the purpose of computing limitation under section 22 would be 15th of December, 1981. The appellate Court has found that the respondent No. 4 Mohd. Hafeez Khan derived knowledge of the order only on 15th of December, 1981 when he was forcibly evicted from the disputed shop. That being so it is clear that the appeal filed by him on-16th of January, 1982 was within time in view of the fact that 14th January, 1982 was a public holiday, the certified copy was applied for on 15th of January, 1982 and the appeal was filed the next day. 6. Even otherwise the appellate Court has found that the delay in filing the appeal has been sufficiently explained. In this view also I see no ground for interfering with the finding returned by the learned District Judge on 1st of September, 1982. 7. 6. Even otherwise the appellate Court has found that the delay in filing the appeal has been sufficiently explained. In this view also I see no ground for interfering with the finding returned by the learned District Judge on 1st of September, 1982. 7. The result of the aforesaid discussion therefore, is that the appeal of the respondent No. 4 would be deemed to have been filed within time. 8. On the merits of the appeal, learned counsel for the petitioner contended that it the appellate Court has wrongly held that Mohd. Hafeez Khan was the tenant of the disputed shop. Learned counsel has also challenged the finding of the appellate Court on the issue whether or not the proceedings commenced by the petitioner under section 21 was collusive and that the order passed upon that application was obtained by fraud. In the view that I am taking, it is not necessary to express any final opinion on these questions. In my opinion, while the order passed by the appellate court, setting aside the order passed by the prescribed Authority under section 21 deserved to be affirmed in the facts and circumstances of the present case, the appellate Court has certainly committed a patent error in disposing of certain controversies almost finally. If the appellate Court was inclined to remand the case to the Prescribed Authority for disposing of the application under Section 21 he should not have expressed final opinions the issues which should properly have been left for determination by the prescribed Authority. For the instance, at one place it observed in passing that the application filed by the petitioner was collusive. At another place the appellate Court has observed that there was sufficient evidence on the record to show that Mohd. Hafeez Khan is the tenant of the disputed shop. 9. In my opinion, while the conclusion of the appellate court that the matter should be sent back to its Prescribed Authority for a fresh decision because the respondents Nos. 4 and 5 had not been heard in opposition to the application filed by the petitioner is correct. The appellate Court has referred to the evidence on the record indicating that at the time of the inforcement of the order of eviction Mohd. Hafeez Khan was found in possession, and that he was reported to have been running a tea stall in the shop. The appellate Court has referred to the evidence on the record indicating that at the time of the inforcement of the order of eviction Mohd. Hafeez Khan was found in possession, and that he was reported to have been running a tea stall in the shop. The appellate Court has also pointed out material showing that Mohd. Hafeez Khan was recorded as tenant of the shop in Municipal registers. On the material on record, therefore, the appellate Court was justified in deciding to send back the case for a further enquiry. 10. The appellate court however, erred seriously in expressing final opinion on the issue involved in this case. The issues which directly arose out of pleadings of the parties were : 1. Whether Mohd. Hafeez Khan is the tenant of the disputed shop or Abdul Asad was the tenant ? 2. Whether the petitioner is the landlord or the Alal-Aulad set up by the respondent No. 4 is the landlord ? These issues should have been left to be decided by the prescribed Authority. To that extent the petitioner contention is right. The petitioner shall implead the respondents Nos. 4 and 5 in the application filed by him under section 21. The respondents Nos. 4 and 5 shall have the right to file a written statement in reply to the application under section 21. The petitioner shall have the right to make consequential amendments in his application under section 21. The parties shall be at liberty to adduce fresh and additional evidence before the Prescribed Authority. 11. In view of the fact that the matter is being remanded to the Prescribed Authority for disposing of the above issues and the other issues which might be arise on the pleadings of the parties any observations which have been made by the District Judge on the merits of these issues shall have no effect. The Prescribed Authority shall be at liberty to dispose the application under section 21 afresh. So far as the order passed by the appellate court directing restoration of possession of the respondent No. 4 is concerned, the same seems to be perfectly just and legal. The finding of the appellate court that the respondent No. 4 was in actual possession of the disputed shop at the time of being evicted therefrom on the 15th of December, 1981 seems correct and does not call for any interference. The finding of the appellate court that the respondent No. 4 was in actual possession of the disputed shop at the time of being evicted therefrom on the 15th of December, 1981 seems correct and does not call for any interference. On this finding the said respondent was clearly entitled to be restored to possession on the crder passed by the Prescribed Authority on 21.10.1981 being set aside. That part of the order passed by the appellate Court is affirmed. 12. The net result is that this petition succeeds and is allowed, but in part. Where as the order passed by the appellate Court setting aside the order passed by the Prescribed Authority on 21st of October, 1981 as also the order directing restoration of possession to the respondent No. 4 are affirmed the findings- recorded by the appellate Court on the aforesaid issues are set aside subject to the observations made above. The prescribed Authority will now dispose of the application filed by the petitioner under section 21 afresh according to law having regard to the observations made in this judgment. The parties shall bear their own costs of this petition. The Prescribed Authority shall take immediate steps to put back the respondent No. 4 in possession over the disputed shop.