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2010 DIGILAW 1913 (ALL)

RAJ MOHAN SINGHAL v. PRAMOD KUMAR

2010-07-02

DEVENDRA PRATAP SINGH

body2010
JUDGMENT DEVENDRA PRATAP SINGH, J.--Heard learned Counsel for the parties and with their consent this petition is being finally disposed off. 2. The respondent-landlords filed a release application under section 21 (1) (a) of U.P. Act No. 13 of 1972 against the petitioner-tenant seeking the release of the disputed shop which was in his tenancy on the ground of personal need of Pramod Kumar. After contest the prescribed authority allowed the application vide order dated 6.9.1997 but the consequential appeal was allowed only on the ground that the landlords had not given six months' notice before filing their release application. This order was subjected to challenge by the landlords in Writ Petition No. 16639 of 1998 and a learned Single Judge after hearing the parties allowed the writ petition vide judgment dated 19th March, 2009 holding that after expiry of three years form the date of purchase of a tenanted building, notice is not required. During pendency of the writ petition, certain subsequent events had occurred and it was sought to be brought on record but the learned Single Judge while remanding the matter to the appellate authority for decision afresh, made no comments thereon and directed that the matter may be decided afresh in accordance to law within four months. The petitioner tenant challenged the said order before the Apex Court by the specialleave to appeal was dismissed on 6th of July, 2009 with a direction to the Appellate Court to decide the appeal positively within four months. 3. During hearing of the appeal, the petitioner-tenant moved two applications for obtaining a Commissioner's report and for filing additional evidence which have been rejected by the impugned order dated 6th of November, 2009 which is subject-matter of this writ petition. 4. Learned Counsel for the petitioner has confined his argument only with regard to rejection of his application for filing of additional evidence to show that possession of another adjacent shop has been obtained after release where Pramod Kumar was doing his business. So far as the application for obtaining Commissioner's report is concerned, has been made. 5. A perusal of the application shows that it is alleged that during pendency of the writ petition the adjoining shop No. 140 was vacated by the erstwhile tenant Murlidhar in August, 2002 and its physical possession has been taken over by Pramod Kumar. So far as the application for obtaining Commissioner's report is concerned, has been made. 5. A perusal of the application shows that it is alleged that during pendency of the writ petition the adjoining shop No. 140 was vacated by the erstwhile tenant Murlidhar in August, 2002 and its physical possession has been taken over by Pramod Kumar. This aspect was sought to be introduced through two affidavits as additional evidence which has been rejected. The Appellate Court rejected the application on two grounds; firstly that the dispute related to shop No. 141 and therefore vacation of shop No. 140 would have no bearing; and secondly that since the High Court while remanding the matter had not considered the subsequent events, it would be beyond the remand order to consider it. In the opinion of the Court both the grounds are misconceived. If in fact shop No. 140 is being occupied by Pramod Kumar for whose benefit the release application was moved, it would have a direct bearing on the decision of the release application. The objection of the respondent-landlord that the shop was got vacated for Dinesh Kumar can be examined by the Appellate Court once the affidavits are taken on record. This Court in the remand order has not precluded the Appellate Court from exercising its power of admitting additional evidence. 6. Consequently this writ petition succeeds and is allowed and the impugned order dated 6th November, 2009 is set aside. The Appellate Court shall now take the two affidavits as additional evidence on record and allow the landlord to file rebuttal and decide the appeal itself within a month from the date of submission of a certified copy of this order. The Counsel for the petitioner undertakes that he will not seek any adjournment whatsoever. 7. In the circumstances of the case, no order as to costs. Petition Allowed.