Research › Browse › Judgment

Allahabad High Court · body

1988 DIGILAW 764 (ALL)

Kesari Prasad v. 5th Additional District Judge, Moradabad

1988-08-26

V.K.KHANNA

body1988
JUDGMENT V.K. Khanna, J. - Three writ petitions were filed in this Court i.e. Writ Petition No. 2278 of 1981, Smt. Kesari Prasad v. 5th Additional District Judge and others, Writ Petition No. 817 of 1981, Smt. Lachho alias Luxmi and others v. Additional District Judge and others, and Writ Petition No. 2423 of 1981. Shri Zamir Hasan v. Additional District Judge and others. The aforesaid three writ petitions were heard by me together and were disposed of by a common judgment dated 8.10.1985. The writ petitions filed by the tenants were allowed and the Judge Small Causes Court was directed to decide the suit afresh in the light of the observations made in the judgment and accordance with law. Respondent Bal Niketan Nursery School in Writ Petition No. 2278 of 1981 preferred an appeal before the Supreme Court which was registered as Civil Appeal No. 55-A of 1987. The aforesaid appeal was finally disposed of by the Supreme Court by its judgment dated July 15, 1987. The appeal was allowed and the matter was remitted to the High Court for disposal on merits after allowing the application filed under Order 1 Rule 10, C.P.C. by the appellant and ordering Smt. Chandramukhi Ram Saran Shiksha Samiti through its Secretary, Dr. Om Prakash to be also added as a plaintiff in the suits so as to make it clear that Dr. Om Prakash is representing not only the appellant's school but also the Registered Society and dispose of the writ petitions on merits after the formal amendments have been carried out in the pleadings. The petitioners in the three connected writ petitions after the decision given by the Supreme Court moved applications for disposing of the writ petitions in the light of the decision given by the Supreme Court. 2. After due service on parties in pursuance of the decision of the Supreme Court the application under Order 1 Rule 10, C.P.C. was allowed and Smt. Chandramukhi Ram Saran Shiksha Samiti though its Secretary, Dr. Om Prakash was added as a plaintiff in the suits as held by the Supreme Court. All the three writ petitions were thereafter, ordered to be listed for final hearing as held in the judgment given by the Supreme Court. 3. Om Prakash was added as a plaintiff in the suits as held by the Supreme Court. All the three writ petitions were thereafter, ordered to be listed for final hearing as held in the judgment given by the Supreme Court. 3. Before the hearing in the three connected writ petitions could start, Shri M.A. Qadeer, learned counsel appearing for all the petitioners in the three writ petitions raised a preliminary objection. It was urged that respondent Bal Niketan Nursery School had filed no appeal before the Supreme Court only against the decision of the this Court in the case of Kesari Prasad v. 5th Additional District Judge and others, (Writ Petition No. 2278 of 1981). It was argued that Bal Niketan Nursery School had filed no appeal before the Supreme Court against the decision of this Court in Writ Petition No. 817 of 1981 and Writ Petition No. 2423 of 1981. 4. Sarvashri R.R.K. Trivedi and D.C. Saxena, learned counsel appearing for the respondents in the writ petitions have not been able to controvert this statement that one appeal alone had been filed against the decision of this Court in Writ Petition No. 2278 of 1981. Normally the respondents would not be able to get benefit of the judgment delivered in the appeal which had been filed against the decision of this Court in Writ Petition No. 2278 of 1981. In so far as the other two writ petitions (Writ Petition Nos. 817 of 1981 and 2423 of 1981) are concerned, admittedly no appeal had been filed before the Supreme Court against the decision in the aforesaid two writ petitions. However, this Court is bound by what has been held by the Supreme Court in its decision dated July 15, 1987. The Supreme Court has held that Smt. Chandramukhi Ram Saran Shiksha Samiti should be impleaded as a plaintiff in all the suits and that the writ petitions be disposed of on merits after the formal amendments have been carried out in the pleadings. In view of the aforesaid findings recorded by the Supreme Court, the three writ petitions are being disposed of on merits. 5. As the facts and questions of law involved in all the three writ petitions are common, learned counsel for the petitioners has raised common arguments in these three writ petitions. In view of the aforesaid findings recorded by the Supreme Court, the three writ petitions are being disposed of on merits. 5. As the facts and questions of law involved in all the three writ petitions are common, learned counsel for the petitioners has raised common arguments in these three writ petitions. It has been firstly urged that the notice which has been annexed as Annexure 1 to Writ Petition No. 2278 of 1981 would clearly show that a notice had been given by the Bal Niketan Nursery School through its Secretary, Dr. Om Prakash. It has been urged that landlord of the petitioners was Smt. Chandramukhi Ram Saran Shiksha Samiti and the tenancy could not have been terminated by giving a notice on behalf of the Bal Niketan Nursery School. According to the learned counsel appearing for the petitioners the three suits were liable to be dismissed on this ground alone as the tenancy of the petitioners had not been terminated in accordance with the provisions of Section 106 of the Transfer of Property Act. 6. A bare perusal of the decision given by Supreme Court in Civil Appeal No. 55-A of 1987 shows that Dr. Om Prakash, by mentioning himself as the Manager of the School does not cease to be the Secretary of the Society and in connection with the filing of the suits the Supreme Court observed that it could not be said that the suits had been instituted by an incompetent person who is not empowered under the constitution of the Society to file suits on behalf of the Society. 7. It is settled law that notices have to be construed liberally. As observed by the Supreme Court, Dr. Om Prakash also happened to be the Secretary of the Registered Society. The notices having been given by Dr. Om Prakash, should be treated as the notices had been given on behalf of the Society through Dr. Om Prakash who was entitled to give the notices under the rules of the Society. The argument raised has thus no force. 8. It has then been urged by the High Court while deciding the writ petitions by its orders dated 8.10.1985 had not adjudicated on the question as to whether the Bal Niketan Nursery School was a recognised institution or not. The argument raised has thus no force. 8. It has then been urged by the High Court while deciding the writ petitions by its orders dated 8.10.1985 had not adjudicated on the question as to whether the Bal Niketan Nursery School was a recognised institution or not. It has been urged that the petitioners be allowed to raise this point again and this Court may decide on the aforesaid question as the same has not been decided on the earlier occasion. 9. I am unable to accept the contention raised by the learned counsel for the petitioners. A bare perusal of the judgment given by the Supreme Court in Civil Appeal No. 55-A of 1987 clearly shows that the Supreme Court has adjudicated on this question and has held that respondent Bal Niketan Nursery School is a recognised institution. The aforesaid finding given by the Supreme Court is binding on the parties and the aforesaid question cannot be raised again before me. 10. No other points has been pressed before me. 11. For the reasons stated above, the three writ petitions are dismissed. However, looking to the entire facts and circumstances of the case the parties shall bear their own costs. 12. In the end, learned counsel for the petitioners has prayed for some time for vacating the premises in dispute subject to the petitioners giving an undertaking that they shall hand over peaceful possession of the premises in dispute to the landlord. I have heard the learned counsel for the parties on this question also. Looking to the facts and circumstances of the case the petitioners are granted time till 31st December, 1988 for vacating the premises in dispute subject to the condition that the petitioners file their own affidavits before the Judge Small Causes Court within a period of three weeks from today containing an undertaking to deposit the entire rent within the time granted and to handover peaceful vacant possession of the premises in dispute to the landlord on or before 31st December, 1988 including the payment of compensation at the rate of rent awarded for remaining in use and occupation of the premises in dispute under the orders of this Court. 13. For the reasons stated above, the writ petitions are dismissed. However, looking to the facts and circumstances of the case the parties shall bear their own costs.