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2005 DIGILAW 2487 (ALL)

RIAJUL HASAN v. ADDL. DISTRICT JUDGE, MAU

2005-12-13

ANJANI KUMAR

body2005
JUDGMENT Honble Anjani Kumar, J.—The petitioner, who is the tenant of an accommodation aggrieved by the order dated 2.12.1998 passed by the prescribed authority under the provisions of U.P. Act No. 13 of 1972 which shall hereinafter be referred to as ‘the Act’ and the order passed by the revisional Court dated 27.2.2001, approached this Court by means of this writ petition under Article 226 of the Constitution of India for quashing of the aforesaid orders and a further direction that the prescribed authority be directed to decide the application under Section 21 (1) (a) of the Act filed by the landlord on merits after hearing the petitioner-tenant. 2. The facts which emerge out of the pleadings of the parties are that the respondent-landlord filed an application under Section 21 (1) (a) of the Act for the release of the accommodation in dispute for his personal bonafide requirement. The petitioner-tenant contested the aforesaid application by filing written statement, the prescribed authority before whom the aforesaid application was pending, by its ex parte order dated 2.12.1998 allowed the application filed by the landlord and directed for release of the accommodation in dispute in favour of the landlord. Aggrieved thereby the petitioner-tenant preferred an application dated 10.12.1998 before the prescribed authority purporting to be an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte order dated 2.12.1998 which was registered as Misc. Case No. 327 of 1998. The prescribed authority after exchange of the objections rejected the petitioner’s application filed under Order IX Rule 13 of the Code of Civil Procedure. Aggrieved by the order passed by the prescribed authority rejecting the petitioner’s application for setting aside the ex parte order dated 2.12.1998 preferred a revision purporting to be revision under Section 115 of the Code of Civil Procedure. The revisional Court dismissed the revision as not maintainable. Thus, this writ petition. 3. Learned counsel for the respondents raised an objection regarding maintainability of the revision under Section 115 before the revisional Court. Learned counsel for the respondent submitted that in view of the provisions of Section 38 of the Act no revision lies as the provisions of Code of Civil Procedure as such are not applicable to the proceedings under the Act. Learned counsel for the respondents raised an objection regarding maintainability of the revision under Section 115 before the revisional Court. Learned counsel for the respondent submitted that in view of the provisions of Section 38 of the Act no revision lies as the provisions of Code of Civil Procedure as such are not applicable to the proceedings under the Act. Learned counsel for the respondent relied upon the decisions reported in 2002 (1) AWC 131 , Sajida Begum and others v. 1st Additional District Judge; Farrukhabad and others, JT 2001 (Suppl. 1) SC 564; Chandeshwar Yadav v. Smt. Radha Devi and others, 1992 RD (Suppl.) 394, Salil Dutta v. T.M. and M.C. Pvt. Ltd. and 1981 ACJ 375; Rafiq and others v. Munshi Lal and others. It is further submitted by learned counsel for the respondent that in view of the provisions of Section 37 (1) of U.P. Act No. 13 of 1972 the order passed by the prescribed authority has become final. The provisions of Section 37 (1) of U.P. Act No. 13 of 1972 are reproduced below : “37. Finality and presumption.—(1) No order made in exercise of any power conferred by or under this Act shall be called in question in any Court." 4. The argument advanced on behalf of learned counsel for the respondent, in my opinion, deserves to be accepted and it is held that no revision lies under Section 115 of the Code of Civil Procedure against the order passed by the prescribed authority under the provisions of the Act which has attained finality under Section 37 (1) of the Act. The revision under Section 18 of the Act will lie only against the order passed under Section 16 of the Act or under Section 19 of the Act and that too on the grounds enumerated under Section 18 of the Act. Thus, the order passed by the revisional Court dismissing revision is justified but for reasons stated above. Learned Counsel for the petitioner then submitted that this writ petition may be treated as writ petition against the order passed by the prescribed authority and further that in view of the law laid down by the Apex Court and this Court reported in 2002 (1) AWC 131 ; Sajida Begum and others v. 1st Additional District Judge, Farrukhabad and others, JT 2001 (Suppl. 1) SC 564, Chandeshwar Yadav v. Smt. Radha Devi and others; 1992 RD (Suppl.) 394, Salil Dutta v. T.M. and M.C. Pvt. Ltd., the view taken by the prescribed authority in rejecting the application filed by the petitioner under Order IX Rule 13 of the Code of Civil Procedure deserves to be set aside. 5. Learned counsel for the respondent has submitted that in view of the finding recorded by the prescribed authority regarding cause showing being insufficient for the non-appearance on the date fixed when the ex parte order was passed against the petitioner, this Court should refrain from interfering with the order passed by the prescribed authority in view of the law laid down by the Apex Court in a case reported in 1978 ARC 496; Ramji Dass v. Mohan Singh where the apex Court ruled that the case should be decided on merits rather than on technicalities. Learned counsel for the petitioner further relied upon the decision of the Apex Court reported in 1981 ACJ 375, Rafiq and others v. Munshi Lal and others. 6. In view of the aforesaid law and in view of what has been stated above, I find that the order dated 2.12.1998 passed by the prescribed authority deserves to be quashed and is hereby quashed. The writ petition is allowed. The matter will now go back to the prescribed authority who shall first decide the application filed by the petitioner for setting aside the ex parte order dated 2.12.1998 passed under Order IX Rule 13 of the code of Civil Procedure in the light of the observations made in this judgment and in accordance with law and in case the prescribed authority set aside the ex parte order, it will permit the petitioner to contest the proceedings in accordance with law. Since the matter is fairly old, the prescribed authority is directed to decide the case within six months from the date of presentation of certified copy of this order before it. In view of what has been stated above, this writ petition succeeds and is allowed. The order dated 2.12.1998 is quashed. The matter will now go back to the prescribed authority to decide the petitioner’s application under Order IX Rule 13 of the Code of Civil Procedure afresh in the light of direction already issued. Petition Allowed. ———