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2010 DIGILAW 1062 (ALL)

Girdhar Lal Didwania v. District Judge, Lucknow

2010-03-31

RAJIV SHARMA

body2010
JUDGMENT Hon'ble Rajiv Sharma, J. Heard Mr. R. K. Sharma, learned Counsel for the petitioners. 2. Brief facts of the present case are that on 3.2.2005, the petitioners filed a release application under Section 21 (1) (a) of U. P. Act No. 13 of 1972, to which the written statement was filed by the opposite party No.2 on 19.10.2005. Thereafter, by the order dated 1.5.2007, release application was allowed. Subsequently, an application under Section 23 of U. P. Act No. 13 of 1972 was moved for warrant of possession on 12.7.2007. On 30.10.2007, the opposite party No.2 appeared through Counsel and was allowed time to file objections. Thereafter, on 17.3.2008, the opposite party No.2 filed an application for setting aside the order dated 1.5.2007, to which the petitioners filed their objections. Subsequently, vide order dated 29.9.2008, the said application was rejected. Being aggrieved, he filed Rent Appeal under Section 22 of U. P. Act 13 of 1972. In the appeal, the petitioners filed written objections against maintainability of appeal. By the impugned order dated 2.1.2009, the Appellate Court/District Judge, while discarding the statutory provisions of U. P. Act No. 13 of 1972 and the judgments cited on behalf of the petitioners, admitted the appeal vide order dated 2.1.2009. 3. Learned counsel for the petitioners attacked the impugned order on the grounds that no appeal lies under Section 22 of U. P. Act No. 13 of 1972. Further, he submits that Section 22 of the aforesaid Act empowers the Appellate Authority to entertain the appeal against the final orders and not against the application for recall of the orders. Next, he stated that in such circumstances, the writ petition lies under Article 226 or 227 of the Constitution of India. 4. In support of his submissions, learned Counsel for the petitioners has relied upon the cases of State of Bihar v. Kalika Kauer @ Kalika Singh, Rajbir Singh Dalal (Dr.) v. Chaudhry Devi Lal University, Balak Ram v. District Gonda, Smt. Dhooran @ Ghooran v. District Judge, Ram Gopal v. District, Gonda, Harbans Singh v. District Judge, Ballia, Raja Ram v. Prescribed Authority, Manipur and Radhey Shyam v. Special Chief Judicial Magistrate, Kanpur. 5. 5. After hearing learned Counsel for the petitioners and perusing the record, I am of the considered opinion that the order admitting the appeal suffers from illegality because no appeal lies against the rejection order under Section 22 of U. P. Act No. 13 of 1972. In the case of Smt. Shoroan alias Ghooran (supra), this Court held that "an appeal is always creature of statute. Section 22 under which the petitioner filed the appeal provided for appeal against the order passed under Section 21. No appeal is provided under the Act against an order rejecting an application for setting aside of an ex parte order of release. Such an order passed under Section 21." 6. Here, in this case, the Prescribed Authority passed an order on the release application in favour of the petitioner. Being aggrieved, the opposite party No.2 filed an application for setting aisde the order, which was rejected. Against the rejection order, he filed an appeal under Section 22 of U. P. Act 13 of 1972, which is not at all permissible under the law. Even then, the District Judge admitted the appeal, therefore, it is liable to be set aside. 7. In view of above, the writ petition is allowed and the order admitting the appeal is set aside. Under the facts and circumstances of the case, there shall be no order as to costs.