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2008 DIGILAW 646 (ALL)

PRADEEP KUMAR AWASTHI v. UMA KANT TRIPATHI

2008-03-19

DILIP GUPTA

body2008
DILIP GUPTA, J. ( 1 ) THIS writ petition under Article 226 of the Constitution has been filed with the prayer that the order dated 8th February, 2008 passed by the Judge Small Causes Courts, Kanpur Nagar in Misc. Case No. 168/74/2007 be quashed. A further prayer has been made for setting aside the order dated 7th March, 2008 passed by the learned District Judge Kanpur Nagar in S. C. C. Revision No. 36 of 2008 that had been filed for setting aside the said order. ( 2 ) THE facts as stated in the writ petition indicate that the father of the petitioner late Brij Mohan Awasthi was the tenant of the premises in dispute. The erstwhile landlord Sri Om Prakash Gupta had instituted SCC Suit No. 2071 of 1972 against the father of the petitioner, which was decreed by the judgment and order dated 14th November, 1975. The Civil Revision that was filed to challenge the aforesaid order was dismissed on 3rd September, 1976 and, thereafter, Execution Case No. 70 of 1981 was instituted by the landlord. The property in dispute was then subsequently sold by the landlord to Sri Uma kant Tripathi, who has been arrayed as the respondent in the present writ petition. ( 3 ) IN between, an application for release of the premises was also filed by the erstwhile landlord, but after he had sold the disputed accommodation, the said application was not pressed and the proceedings were dropped. The respondent moved an application under section 16 (4) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the act) on 19th July, 2001 for issuing Form c and d for giving possession of the premises in dispute. The Rent Control and Eviction Officer by the order dated 6th January, 2005 issued Form d even though the earlier landlord had not pressed the application. This order was challenged by the petitioner by filing the Writ Petition No. 23494 of 2006. This petition was allowed by this court by the judgment and order 6th January, 2005 and a direction was issued to the Rent, Control and Eviction Officer to drop the proceedings initiated on the application for taking possession on the basis of the release order. This petition was allowed by this court by the judgment and order 6th January, 2005 and a direction was issued to the Rent, Control and Eviction Officer to drop the proceedings initiated on the application for taking possession on the basis of the release order. It was, however, observed that, if the landlord applies for impleadment in the Execution case No. 70 of 1981 then the impleadment must be allowed, but the tenant shall be permitted to raise all permissible objections in the said execution application. In Special Appeal No. (112) of 2008 filed by the present petitioner, this Court observed that as the Execution Case had been finally decided and the tenant had filed the Revision to challenge the order passed in the execution Case, the parties will be free to raise all such legal objections as may be permissible in law in the pending revision. The revision was, however, dismissed by the judgment and order 7th March, 2008. ( 4 ) A perusal of the order dated 8th February, 2008 passed by the Judge small Causes Courts indicates that the objections filed by the petitioner under section 47 of the Code of Civil Procedure have been rejected as being barred by limitation. However, in the earlier part of the order, it has been observed that the subsequent purchaser could pursue the execution case. The revision filed by the petitioner for setting aside the aforesaid order dated 8th February, 2008 was also dismissed. ( 5 ) SRI S. N. Varma, learned Senior Counsel for the petitioner submitted that the view taken by the Judge Small Causes Courts on the objections filed by the petitioner under section 47 of the Code of Civil Procedure that they were barred by limitation, is not correct and in support of his contention he has reliance upon the decision of the Court in Nar Singh Datt v. Ram Pratap and others, AIR 1961 All 436 . ( 6 ) SRI H. N. Singh, learned Counsel appearing for the respondent landlord, did not dispute this proposition and all that he contends is that this court should not entertain this petition while exercising its discretionary jurisdiction under Article 226 of the Constitution. ( 6 ) SRI H. N. Singh, learned Counsel appearing for the respondent landlord, did not dispute this proposition and all that he contends is that this court should not entertain this petition while exercising its discretionary jurisdiction under Article 226 of the Constitution. ( 7 ) THIS Court in Nar Singh Datt (supra) clearly held that no limitation is provided under section 47 of the Code of Civil Procedure for filing objections and the relevant portion of the judgment is quoted below:- "it was also urged on behalf of the decree holder that the objection was barred by limitation. Reliance in support was placed upon Gangadhar martand v. Jagmohandas Varjivanda, AIR 1931 Bom 446, in which Article 181 of the Limitation Act was held applicable to an objection under section 47, C. P. C. With all respect it is difficult to hold that an objection under section 47, c. P. C. can fall within the purview of the Article 181 of the Limitation Act. It was observed in AIR 1935 All 1016 (supra) that no limitation is prescribed for an objection under section 47, C. P. C. The objection was therefore no barred by limitation. " ( 8 ) IN view of the aforesaid decision, the Judge Small Causes Courts was not justified in dismissing the objections filed by the petitioner under section 47 of the Code of Civil Procedure as being barred by limitation. ( 9 ) IT cannot be doubted that the powers of this Court under Article 226 of the Constitution are discretionary in nature but in the present case, the petitioner had filed objections under section 47 of the Code of Civil Procedure, which have been rejected as being barred by limitation. This Court had earlier given liberty to the tenant to raise all possible objection in the Execution Case no. 70 of 1981 initiated by the landlord and, therefore, the learned Counsel for the respondent is not justified in contending that this Court should restrain from exercising its discretionary jurisdiction even though these objections have been rejected on a ground which is not sustainable in law. ( 10 ) THE writ petition, therefore, succeeds and is allowed. The orders dated 8th February, 2008 passed by Judge Small Causes Courts and its order dated 7th march, 2008 passed by the District Judge are set aside. ( 10 ) THE writ petition, therefore, succeeds and is allowed. The orders dated 8th February, 2008 passed by Judge Small Causes Courts and its order dated 7th march, 2008 passed by the District Judge are set aside. The matter is remitted the Executing Court to examine the objections filed by the petitioner under section 47 of the Code of Civil Procedure on merits and pass an appropriate order in accordance with law as expeditiously as is possible, preferably within a period of two months from the date a certified copy of the order is produced by either of the parties before the Executing Court. Petition Allowed. .