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2009 DIGILAW 404 (ALL)

RADHA KISHAN AGARWAL v. PARSADI DHOBHI

2009-02-04

BHARATI SAPRU

body2009
BHARATI SAPRU, J. Heard learned Counsel for the petitioner and learned Counsel for the respondent No. 1 Shri Arvind Srivastava. 2. Although vakalatnama has been filed by the respondents No. 2 and 3, no Counsel has appeared for them. They had been granted time by this Court earlier to file a counter-affidavit but they have chosen not to do so. 3. I am proceeding to hear the matter without the benefit of the presence of respondents No. 2 and 3. The facts as stated by the petitioner in this writ pe tition, therefore, are completely unrebutted. 4. The admitted facts are that the petitioner is the landlord of the ac commodation in dispute and has filed P. A. Case No. 2 of 1989 seeking release under the provisions of 21 (1) (a) of the U. P. Act No. 13 of 1972 against respon dent No. 1-Parsadi Dhobhi. 5. The disputed premises is a shop bearing No. 27/61 Thela Char Pathwari, Belanganj, Agra. The respondent No. 1 was the tenant of the shop in dispute at Rs. 3/- per month. The respondent No. 1 contested the case. The pre scribed authority by its judgment dated 19. 7. 2003 allowed the release applica tion of the landlord holding that the need of the petitioner landlord was bona fide and his comparative need was greater. 6. Aggrieved by the order of the Prescribed Authority dated 19. 7. 2003, the tenant Prasadi Dhobhi filed Rent Control Appeal No. 457 of 2003. At this stage, the respondent Nos. 2 and 3 also entered into the frame and claimed themselves to be aggrieved parties and filed Appeal No. 501 of 2003. One Suresh Chandra had applied for impleadment and his application for impleadment was rejected by the Prescribed Authority and, thereafter, he filed Writ Petition No. 42870 of 1993 which was also rejected by this Court by judg ment dated 21. 4. 1999. 7. The appeals filed by Parsadi Dhobi and respondent Nos. 2 and 3 were both dismissed by order dated 9. 8. 2004. It is admitted, to the respondent No. 1 Prasadi Dhobhi that he left the premises in dispute during the pendency of the appeal, whereas by the appellate order the Appellate Court came to the con clusion that the respondents No. 2 and 3 were unathorised occupants and did not have the status of a tenant. 8. 2004. It is admitted, to the respondent No. 1 Prasadi Dhobhi that he left the premises in dispute during the pendency of the appeal, whereas by the appellate order the Appellate Court came to the con clusion that the respondents No. 2 and 3 were unathorised occupants and did not have the status of a tenant. It is also a matter of record and admitted to both the sides that no petition was filed against the appellate order dated 9. 8. 2004 and it has become final between the parties. 8. The petitioner landlord, thereafter, moved an application for execution under section 23 of the Act and it is this application, which has been re jected by the Court below. The reason for rejecting the application is that the respondents No. 2 and 3 were claiming that they were in possession of the dis puted premises and also gave a finding that they were having a status inde pendent from that of respondent No. 1. 9. Having heard learned Counsel for the petitioner and learned Counsel for the respondent No. 1, it is abundantly clear that the respondent No. 1, who was the actual tenant has vacated the premises. In so far as respondents No. 2 and 3 are concerned, it is nowhere established from the record that they were at any point tenants of the landlord. 10. The judgment dated 9. 8. 2004 became final and against which the re spondents No. 2 and 3 did not file any writ of appeal. Learned Counsel has ar gued that it is not open for the Executing Court to go into all these questions once the order dated 9. 8. 2004 became final. Moreover, the fact that respondents No. 2 and 3 have not cared to file an affidavit or even to appear at this stage of fi nal hearing, although they have represented through Counsels, also estab lishes the fact that they are not pressing the claim any further. 11. Having heard learned Counsel for both the sides and having perused the materials on record. I am of the opinion that the order passed by the Executing Court dated 30. 10. 2004 is liable to be set aside. It is, accordingly, set aside. 12. The matter before the Executing Court is restored to its original position by this Court. The Executing Court will now proceed in accordance with law. I am of the opinion that the order passed by the Executing Court dated 30. 10. 2004 is liable to be set aside. It is, accordingly, set aside. 12. The matter before the Executing Court is restored to its original position by this Court. The Executing Court will now proceed in accordance with law. 13. The writ petition is allowed. No order as to costs. Petition Allowed. .