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Allahabad High Court · body

2008 DIGILAW 1016 (ALL)

MOHD AKIL KHAN v. MUSHTAQ AHMAD

2008-05-07

DILIP GUPTA

body2008
DILIP GUPTA, J. ( 1 ) THIS petition has been filed by the heirs of the original tenant for setting aside the order of the Prescribed Authority by which the application filed by the landlord under section 21 (l) (a) of the U. P. Urban buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the act) for eviction of the tenant from the premises in dispute on the ground that the landlord bona fide required the premises, was allowed. The petitioners have also sought the quashing of the judgment and order by which the Appeal filed under section 22 of the Act was dismissed. ( 2 ) THE records indicate that the landlords had filed the application under section 21 (1) (a) of the Act on the ground that they required the residential premises in dispute for themselves and for their family members and they were likely to suffer greater hardship in the event the application was rejected. This application was allowed by the Prescribed Authority by order dated 18th march, 1994 but this order was set aside in the Appeal filed by the tenant under section 22 of the matter was remanded to the Prescribed Authority. ( 3 ) WHEN the matter was pending before the Prescribed Authority, the tenant Nanney Khan died and in his place the two sons residing with the tenant at the time of his death namely, Mohd. Akil Khan and Mohd. Amil Khan were substituted as opposite parties. The Prescribed Authority ultimately allowed the application by the order dated 25th July, 2006 and the Appeal filed by the tenant under section 22 of the Act for setting aside the aforesaid order was dismissed on 7th April, 2008. ( 4 ) SRI K. C. Sinha, learned Counsel for the petitioner submitted that on the death of Nanney Khan, all the four sons should have been substituted as opposite parties but in the present case only two sons were substituted. He further submitted that the landlord had execute a Hibanama in favour of the widow of Nanney Khan and Original Suit No. 1157 of 2004 had also been filed on this basis but even though the said suit was pending, the Prescribed authority proceeded with the application. He further submitted that the landlord had execute a Hibanama in favour of the widow of Nanney Khan and Original Suit No. 1157 of 2004 had also been filed on this basis but even though the said suit was pending, the Prescribed authority proceeded with the application. ( 5 ) SRI M. K. Gupta, learned Counsel for the respondents, however, submitted that only two sons normally residing with Nanney Khan at the time of his death were required to be substituted and that was done and in any event after the death of Nanney Khan, all the four sons jointly inherited the tenancy and even if two sons were substituted, the application could not have been rejected on this ground. He further submitted that the pendency of the suit filed in respect of Hibanama cannot be made a ground to stall the proceedings before the prescribed Authority. ( 6 ) I have carefully considered the submissions advanced by the learned counsel for the parties. ( 7 ) THE landlords had submitted the two sons who were normally residing at the time of death of Nanney Khan. A perusal of the judgment of the appellate Court indicates that the objection now raised by the petitioners that the remaining two sons of Nanney Khan should also have been substituted was not taken before the Appellate Court. ( 8 ) IN any view of the matter, the Supreme Court in Harish Tandon v. District Magistrate, Allahabad, U. P. and others, 1995 25 ALR (SC) 184, observed that after the death of the original tenant, his heirs become joint tenants. This Court in shamse Alam v. District Judge, Gorakhpur and others, 1996 28 ALR 7, observed that proceedings initiated by the landlord under section 21 (1) (a) of the Act shall not be vitiated because of non-impleadment of all the joint tenants. In this view of the matter, even assuming that all the four sons were normally residing with the original tenant Nanney Khan at the time of his death, then too the non-impleadment of the remaining two sons will not vitiate the proceedings. ( 9 ) THE next contention raised by the learned Counsel for the petitioners is that the Prescribed Authority should have waited for the decision in the original suit No. 1157 of 2004 cannot also be accepted. ( 9 ) THE next contention raised by the learned Counsel for the petitioners is that the Prescribed Authority should have waited for the decision in the original suit No. 1157 of 2004 cannot also be accepted. Nanney Khan as well as the petitioners had accepted that they were the tenants and, therefore, the suit filed at such a belated stage in the year 2004 cannot be made a ground to stall the proceedings taken tinder section 21 (1) (a) of the Act. ( 10 ) THERE is, therefore, no merit in the contentions advanced by the learned counsel for the petitioner. The writ petition is liable to be dismissed, ( 11 ) IN the end learned Counsel appearing for the petitioners submitted that three months may be given to the petitioners to handover peaceful possession of the premises to the landlord. ( 12 ) LEARNED Counsel appearing for the landlords submitted that the Court may grant the aforesaid time provided the petitioners give the usual undertaking within three weeks from today before the Court below. ( 13 ) THE writ petition is, accordingly, dismissed. The petitioners shall not be ejected from the premises in dispute for a period of three months from today provided the petitioner given the following undertaking before the Court below within three weeks from today : 1. That the petitioners shall pay damages at the rate of Rs. 50/- per month with effect from May, upto the date they handover the possession of the premises to the landlords. 2. That the petitioners shall not induct any other person in the premises. 3. That the petitioners shall hand over peaceful possession of the premises to the landlords on or before the expiry of three months. ( 14 ) IT is made clear that in the event the petitioners fail to give the undertaking within the aforesaid period or fail to comply with any of the terms of the undertaking, then in that case, it will be open to the landlords to get the decree examined. Petition Dismissed. .