Research › Browse › Judgment

Allahabad High Court · body

1982 DIGILAW 891 (ALL)

Kapoor Chand v. Additional District Judge, Agra

1982-08-05

A.N.VARMA

body1982
JUDGMENT A.N. Varma, J. - By means of this petition the petitioner who is the landlord of the accommodation in dispute is challenging two orders both passed in two appeals filed by him, one against an order rejecting a review petition filed by the petitioner and another against an order directing restoration of possession to the tenant in consequence of setting aside of an ex parte order obtaining by the petitioner against the tenant under Section 21(1)(a) of U.P. Act No. 13 of 1972. 2. Learned counsel for the petitioner fairly conceded that so far as the order passed on the appeal of the petitioner which was directed against the order rejecting his review petition is concerned, he has nothing much to say. I have looked into that order and I am not satisfied that the order dismissing the petitioners appeal against that order suffers from an error much less on apparent on the face of the record. 3. Learned counsel for the petitioner, however, vehemently assailed the correctness of the order passed by the appellate Court in the other Miscellaneous Appeal No. 37 of 1979. That appeal, as observed above, was directed against an order dated 13.1.1979 passed by the Prescribed Authority, Fatehabad directing what may be termed an order of restitution consequent upon the setting aside of an ex parte order obtained by the landlord. 4. Learned counsel for the petitioner contended that the Prescribed Authority had no power to direct restoration of possession, inasmuch as Section 144 of the Code of Civil Procedure has not been made applicable to these proceedings. It was urged that the Prescribed Authority was a Tribunal invested with specific powers and that it cannot claim to exercise powers under the Code of Civil Procedure which have not been specifically conferred upon him. 5. Having heard learned counsel for the parties, I am of the opinion that the Court below has rightly repelled the contention of the petitioner that the order of restoration of possession was not without jurisdiction and that it was fully authorised by the relevant statutory provisions which shall be pointed out here in below. 6. Learned counsel invited my attention to Section 34 of U.P. Act No. 13 of 1972 and urged that under that provision certain specific provisions of the Code of Civil Procedure have been made applicable to the proceedings under this enactment. 6. Learned counsel invited my attention to Section 34 of U.P. Act No. 13 of 1972 and urged that under that provision certain specific provisions of the Code of Civil Procedure have been made applicable to the proceedings under this enactment. Section 144 of the Code of Civil Procedure is not among those powers. The Prescribed Authority do not enjoy the powers of the Civil Court under Section 144 of the Code of Civil Procedure . It is not necessary for me to dwell on this point at length as the matter stands already concluded by an authoritative pronouncement of this Court in the case of Sheo Kishan Das v. The Prescribed Authority, Pilibhit and others, 1980 All. Rent Cases 369 (DB). In this case a Division Bench of this Court considered the Power of the authority constituted under U.P. Act No. 13 of 1972 to direct restitution of possession at some length. It referred in particular to Section 34 and Rule 22 of the Rules framed under that Act and upon an analysis of the said provisions came to the conclusion that the authorities constituted under the Act do have power to order restoration of possession by way of restitution. In that case also an ex parte decree had been set aside and in pursuance thereof the landlord had not only taken possession but had proceeded to demolish the building under tenancy altogether. The tenant had approached the Prescribed Authority for relief by way of restitution which was declined by the Prescribed Authority on the ground that he did not enjoy any such powers under the Act. This court allowed the writ petition and quashed the order of the Prescribed Authority and held that the Prescribed Authority did have power to direct restoration of possession under the aforesaid provisions of the Act. 7. Learned counsel for the petitioner, however, placed strong reliance on a Full Bench decision of this Court in the case of Syed Ejaz Ali Khan and others v. Mohd. Rafiq and others, AIR 1974 Allahabad 178 (FB). I have examined the case and find it of little assistance. The said authority held that there was no power under U.P. (Temporary) Control of Rent and Eviction Act, 1974 to restore possession to a party dispossessed in pursuance of an order under that enactment. Rafiq and others, AIR 1974 Allahabad 178 (FB). I have examined the case and find it of little assistance. The said authority held that there was no power under U.P. (Temporary) Control of Rent and Eviction Act, 1974 to restore possession to a party dispossessed in pursuance of an order under that enactment. The Full Bench observed that in the absence of provisions like 144 and 151 of the Code of Civil Procedure, the authorities constituted under that Act cannot claim any such powers. This decision concerned as it was with the interpretation of U.P. (Temporary) Control of Rent and Eviction Act which has no corresponding provisions such as one finds under Section 34(1)(g) and Section 34(8) read with Rule 22(f) is clearly distinguishable. Under clause (f) of Rule 22 the authorities constituted under the present enactment have been specifically invested with the powers preferred to in Sections 151 and 152 of the Code of Civil Procedure to make any order in the ends of justice and to prevent the abuse of the process of authorities concerned. These provisions were significantly absent from the predecessor enactment namely U.P. Act No. 3 of 1947 referred to above. This distinguishes the Full Bench. 8. The Division Bench decision of this Court in the case of Sheo Kishan Das (supra) deals squarely with the controversy at hand and being on all fours, I follow the same. I am in respectful agreement with the statement of law contained therein. 9. In view of that has been stated above, the first contention raised by the learned counsel for the petitioner fails. 10. Learned counsel for the petitioner next contended that the application for restoration of possession was moved more than two years after the tenant had been evicted and hence it was not a fit case in which the Prescribed Authority ought to have exercised its discretion in favour of the tenant. I am unable to accept the contention. The petitioner became entitled to apply for restoration of possession only after his appeal had been allowed by the appellate Court by an order dated 7.12.1977. The application was moved by the tenant on 4.11.1978 i.e. about 11 months after the passing of the appellate order. As the question in the form in which the learned counsel for the petitioner raised before me does not appear to have been specifically agitated before the appellate Court. The application was moved by the tenant on 4.11.1978 i.e. about 11 months after the passing of the appellate order. As the question in the form in which the learned counsel for the petitioner raised before me does not appear to have been specifically agitated before the appellate Court. I do not know the circumstances on account of which the tenant did not approach the Prescribed Authority earlier. In any case the delay is not such as to justify interference with the impugned orders under Article 226 of the Constitution of India. It cannot be said that the discretion has been exercised arbitrarily or otherwise than in accordance with law. The second submission thus also fails. The Prescribed Authority shall, however, try and dispose of the application under Section 21 expeditiously. 11. In the result, the petition fails and is dismissed, but I make no orders as to costs.