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2001 DIGILAW 991 (ALL)

Mohammad Jameel v. Noor Ahmad

2001-10-31

A.K.YOG

body2001
JUDGMENT : - A.K. Yog, J. Heard Sri Rajesh Tandon, learned Senior Advocate, assisted by Ms. Rama Goel Advocate on behalf of the petitioners and Sri M. S. Haq, Advocate on behalf of contesting plaintiff-respondents Noor Ahmad who has appeared as Caveator-appellant. Learned Counsel for the parties agreed that there is no necessity to send notice to the defendant respondent Nos. 3, 4 and 5 as their interest is fully represented and protected by the petitioners and further writ petition may be finally decided at the admission stage itself. 2. IN view of the above, the writ petition is being finally heard and decided. Without going into the details of the case, it will suffice to mention that present petition arises out of the proceedings initiated by Noor Ahmad (plaintiff defendant/respondent No. 1) by filing J. S. C. C. Suit No. 59 of 1990 (Noor Ahmad v. Smt. Mahmooda Bibi and others). A photocopy of the first page of the plaint has been filed as Annexure-4 to the petition (p. 43 of writ paper book). This document clearly indicates that plaintiff himself, amended array of the parties with respect to defendants and under Court order dated 3-11-1998 bring on the record, for the first time, names of Mohd. Fareed and Mohd. Arif (minor sons of Mohd. Shareef). It will be noted that Mohd. Shareef having died, the above minor defendants, brought on record by way of amendment on the basis of Court order dated 3- 11-1998, were represented through their guardian (mother) Smt. Mahmooda Bibi, who happened to be defendant No. 1. Defendant Nos. 1 and 2 Mahmooda Bibi and Mohd. Hamid had filed joint written statements dated March 11,1995/annexure-5 to the petition. In paras 31 and 32 objection was taken that necessary parties, regarding suit not being maintainable, because of the plaint not being filed in accordance with law. It appears that plaintiff got alarmed and consequently amended the plaint by bringing on record the minor sons of Smt. Mahmooda Bibi in their correct names. 3. IN the instant case, there is no dispute between the parties regarding relationship of lessor and lessee. It appears that plaintiff got alarmed and consequently amended the plaint by bringing on record the minor sons of Smt. Mahmooda Bibi in their correct names. 3. IN the instant case, there is no dispute between the parties regarding relationship of lessor and lessee. There is also no dispute that certain amount was deposited on 19th August, 1999 on the basis of tender receipt dated 18th August, 1999, paper No. 83 Ga (p. 80 of the writ paper book)/annexure-8 to the petition for claiming benefit under Section 20 (4) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U. P. Act No. XIII of 1972 (for short called 'the Act') which contemplates exemption from eviction in the accommodation in case deposits stipulated therein are made. 4. IT has also come on record that Smt. Mahmooda Bibi had failed to make deposit under Section 20 (4) of the Act in spite of the Court order dated 3-1-1992 which permitted deposits to be made by Smt. Mahmooda Bibi/defendant No. 1 at her own risk. Point No. 6 (dealt by the trial Court in its judgment and order dated 13th August, 2001/annexure-11 to the petition) deals with defendants claim of exemption from eviction on the ground of deposits being made under Section 20 (4) of the Act. 5. HEARD learned Counsel for the parties and perused the record. 6. THE learned Counsel for the petitioner submitted that Mohd. Fareed and Mohd. Arif (minor sons of Smt. Mahmooda Bibi) impleaded as defendants having been brought on record vide court Order dated 3-11-1998, there is no question of their making deposit under Section 20 (4) of the Act prior to the said date and that the deposit having been made in August, 1999 was valid deposit having been made before the first date of hearing till date there is no application of mind by the Court to the merits of the case. In support of his contention reliance has been placed on the judgment in the case of Bhagwati Devialias Bhaggo Deviv. IIIrd A. D. J. , Agra and others, 2000 (38) ALR 385, 2000 (1) JCLR 616 (All) wherein this Court after considering various decisions observed videpara 30 : ". . . . . . . . . In support of his contention reliance has been placed on the judgment in the case of Bhagwati Devialias Bhaggo Deviv. IIIrd A. D. J. , Agra and others, 2000 (38) ALR 385, 2000 (1) JCLR 616 (All) wherein this Court after considering various decisions observed videpara 30 : ". . . . . . . . . as already noted above, the Court must find out on the facts of each case as to what is the date on which the Court for the first time proposes to apply its mind to determine the points in controversy and this may even include framing of issues, if so mentioned in the summons. " 7. AS compared to the case of Bhagwati Devi (supra), in the present case, copy of the summons have not been filed. Moreover, trial Court failed to fix 'first date of hearing' in the facts of the instant case. The trial Court on the other hand, proceeded on the basis that Smt. Mahmooda Bibi/defendant No. 1, not having complied with the requirement of Section 20 (4) of the Act, no benefit under aforesaid provision could be claimed by her minor sons in lieu of the deposits purported to be under Section 20 (4) of the Act. There is no finding by the trial Court whether the deposit made on behalf of the minor sons under Section 20 (4) of the Act were in accordance with the provisions of Section 20 (4) of the Act. The crux of the issue lies in the fact as to whether the lapse on the part of Smt. Mahmooda Bibi as defendant No. 1 (in her independent capacity) be treated as lapse on the minor defendants, particularly, when her non-action as defendant No. 1 is not to ensure to the benefit of minor and that too when these minors were not even the parties on record. 8. I have no doubt that the lapse on the part of Smt. Mahmooda Bibi (as defendant No. 1) can legally not be fastened upon minor defendants. Smt. Mahmooda Bibi was acting in duel capacity. Her 'inaction' would not prejudice the minor sons who had distinct entity in law. The Court below has committed manifest error on the face of record in deciding contrary to that extent. Smt. Mahmooda Bibi was acting in duel capacity. Her 'inaction' would not prejudice the minor sons who had distinct entity in law. The Court below has committed manifest error on the face of record in deciding contrary to that extent. Learned Counsel for the respondents submitted that default committed by Smt. Mahmooda Bibi/defendant No. 1 should be treated as default committed by minor defendants sons of said Smt. Mahmooda Bibi and representing throughout as guardian of her minor sons and two could not be treated separately. 9. IN view of the discussions made above. I regret to accept the contention of the plaintiff/respondent No. 1 in the eye of law. 10. THE Rent Revision No. 47 of 2001 filed by the defendant under Section 25, Provincial Small Causes Court Act has been dismissed by the District Judge, Varanasi. The above question pertaining to the deposit under Section 20 (4) of the Act has been dealt in para 14 of the impugned judgment and order dated 1-10-2001/annexure-13 to the petition (p. 131 of the Writ Paper Book). Learned District Judge has also failed to consider the case from aforesaid perspective. As already dealt above, the Revisional Court should first record first date of hearing with reference to defendant Nos. 5 and 6, whether the deposit made by said minor sons Mohd. Fareed and Mohd. Arif (defendant Nos. 5 and 6) was in accordance with law satisfying the requisite conditions in Section 20 (4) of the Act and in case the said deposits by minor defendant Nos. 5 and 6 (impleaded after amendment of the plaint under Court order dated 3-11-1998). 11. THE judgments and order dated 13-8-2001 passed by Judge, Small Cause Court in JSCC Suit No. 57 of 1990 (Noor Ahmad v. Smt. Mahmooda Bibi and others)/annexure-11 to the petition and the impugned Revisional Court judgment and order dated 1-10-2001 (Mohd. Zamil and another v. Noor Ahmad and others)/annexure-13 to the petition are hereby set aside only to the extent of its finding on point No. 6 mentioned in the judgment of the Judge, Small Causes Court and to this extent case remanded back to the JSCC for deciding the case afresh in view of the observations made above. 12. NO other point has been urged, the finding on the other issues are being affirmed. The Court below may endeavour to decide the case as expeditiously as possible. 12. NO other point has been urged, the finding on the other issues are being affirmed. The Court below may endeavour to decide the case as expeditiously as possible. Petition stands partly allowed to the extent indicated above. There shall be no order as to costs. Petition partly allowed.