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2010 DIGILAW 2847 (ALL)

Rajendra Kumar Khandelwal v. Alok Kumar Agrawal

2010-09-16

RAKESH TIWARI

body2010
JUDGMENT Rakesh Tiwari, J. - Heard counsel for the petitioner and perused the record. 2. Landlord respondent- Alok Kumar Agrawal filed an application under section 21(1)(a) of U.P. Act no. 13 of 1972 for release of the shop in question in tenancy of the petitioner which was registered as P.A. case no. 50 of 2007. 3. The petitioner has filed his written statement inter alia that a rent agreement was executed on 15.7.1972 by the father of landlord respondent in favour of father of petitioner-tenant in respect of the shop in question; that both original tenant and original executant of the rent deed expired and tenancy rights were inherited by the tenant petitioner alongwith his brothers and landlord respondent alongwith his brothers and mother; that one of the brother of landlord respondent namely Ashok Kumar Agrawal on 24.12.2007 executed another rent agreement with some enhancement in the rent in favour of the petitioner tenant specifically stating that conditions of the earlier rent agreement will continue. 4. Thereafter, the petitioner moved an application 39-C stating that release application is liable to be rejected under Order 7 Rule 11, C.P.C. as not maintainable as there is no cause of action to file suit because both the parties are bound by the agreement executed between the parties and there is no breach of any clause of agreement by the petitioner. 5. In objection to the aforesaid application, it was stated on behalf of the landlord respondent that his father had neither executed the alleged rent agreement dated 15.7.1972 nor signed it and the alleged rent agreement is a fabricated and Farzi document. 6. The court below by the impugned order dated 17.7.2010 has rejected the petitioner's application as not maintainable. 7. Contention of the counsel for petitioner is that court below has illegally rejected petitioner's application under Order 7 Rule 11, C.P.C. though there is no occasion to file release application by the respondent when agreement between the parties exists and as such doctrine of estoppal applies. 8. The order impugned is an interlocutory one. Parties are yet to lead evidence in support of their respective case before the court below. When veracity of the alleged rent agreement has already been challenged by the landlord respondent, doctrine of estoppal would not apply in the facts and circumstances of the case. No prejudice is caused to the petitioner tenant by the impugned order. 9. Parties are yet to lead evidence in support of their respective case before the court below. When veracity of the alleged rent agreement has already been challenged by the landlord respondent, doctrine of estoppal would not apply in the facts and circumstances of the case. No prejudice is caused to the petitioner tenant by the impugned order. 9. After hearing the submissions and going through the record, in the considered opinion of this Court, the order impugned does not suffer from any illegality or infirmity warranting interference by this Court in extra ordinary powers under Art. 226 of the Constitution. 10. The writ petition is accordingly dismissed. No order as to costs.