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2010 DIGILAW 3258 (ALL)

Zakir Hussain v. Rishabh Kumar

2010-10-21

RAKESH TIWARI

body2010
Rakesh Tiwari, J.:- Heard learned counsel for the parties and perused the record. 2. Brief facts of the case are that respondent landlord filed an application under Section 21 of U.P. Act No. 13 of 1972 for release of the shop in dispute situate in Mohalla Raiganj, Gorakhpur on the ground of his personal need. It was registered by the Prescribed Authority as P.A. Case No. 29 of 2007, Rishabh Kumar versus Zakir Hussain. 3. After service of summons, the petitioner appeared before the court below but no counter was filed by him to the aforesaid release application. The tenant did not appear thereafter in the court below on the dates fixed, hence the court proceeded exparte in the matter vide order dated 17.1.2008. 4. After hearing the respondent landlord and after perusal of record, the Prescribed Authority vide order dated 1.5.2008 allowed the release application exparte directing the petitioner tenant to vacate and handover peaceful possession of the shop in dispute to the landlord within a period of one month. 5. Thereafter, the petitioner filed an application for recall of the exparte order dated 1.5.2008 to which the respondent landlord filed objection. The petitioner filed rejoinder affidavit to the aforesaid objection of the respondent. The Prescribed Authority vide his order dated 7.9.2010 rejected the application for recall of the exparte order dated 1.5.2008, hence this writ petition has been filed by the petitioner for quashing these orders. 6. The contention of learned counsel for the petitioner is that the petitioner has given sufficient and cogent reasons in his application for recall of the exparte order dated 1.5.2008 which have not been considered by the Prescribed Authority and he has illegally rejected the application on irrelevant consideration by ignoring the facts and circumstances stated in the said application. 7. He also submits that there were contradictory Handwriting Expert reports, hence the petitioner was entitled to be afforded an opportunity of hearing on merit but he has been denied this opportunity and that no notice as provided under Section 21 of the Act was served upon him before filing the release application, hence the impugned order dated 7.9.2010 passed by the court below is liable to be quashed. 8. 8. In support of his aforesaid submissions, learned counsel for the petitioner has relied upon the decisions rendered in Ramji Dass and others versus Mohan Singh, ARC, 1978 page-496 and Shivji Rao versus Prescribed Authority and others, (2010 (1) ARC-853. 9. From perusal of the impugned order dated 7.9.2010 it appears that petitioner had moved an application 4-Ga under Sections 34(1)(g) and 22(1)(b) of U.P. Act No. 13 of 1972 read with rules framed thereunder for recall of the exparte order dated 1.5.2008 on the ground that neither the petitioner had knowledge about P.A. Case No. 29 of 2007, nor any notice was served upon him nor he met Sri Jitendra Bahadur Singh, Advocate on whose vakalatnama his signatures are alleged to have been obtained fraudulently and that the respondent landlord has obtained exparte order in connivance with Sri Jitendra Bahadur Singh Advocate by making Farji signatures of the petitioner on the vakalatnama as well as on the alleged release application on the basis of registered gift deed dated 20.9.2007. 10. It also appears that case of the petitioner was that petitioner had moved the release application before expiry of 3 years from the date of purchase, hence the exparte order is not sustainable in the eye of law. 11. It further appears from the impugned order that the court below has found that the signatures made on the vakalatnama of Sri Jitendra Bahadur Singh, Advocate by the petitioner and signatures which have been made on the documents in the court blow, are of the same person. The handwriting expert has also opined that the signatures made on the vakalatnama of the said Advocate and on the document in the court below, are of the same person. The court below has disbelieved the version of the petitioner that neither any vakalatnama has been signed by him in favour of Sri Jitendra Bahadur Singh Advocate nor any application has been moved nor he has knowledge about the aforesaid P.A. Case No. 29 of 2007. While rejecting the application 4-C for recall of the exparte order dated 1.5.2008, it has held that inspite of putting appearance and having knowledge about the said case, the petitioner has not attended his case hence it is established that he wanted to linger on the case on one ground or the other. 12. While rejecting the application 4-C for recall of the exparte order dated 1.5.2008, it has held that inspite of putting appearance and having knowledge about the said case, the petitioner has not attended his case hence it is established that he wanted to linger on the case on one ground or the other. 12. The case laws cited by the learned counsel for the petitioner are not applicable to the facts and circumstances of the present case as in those cases no handwriting expert has been examined to tally the signatures of the petitioner whereas in the instant case, the handwriting expert has been produced and examined who has opined that the signatures made on the vakalatnama filed by Sri Jitendra Bahadur Singh, Advocate and the signatures made on the documents in the court below, are of the same person i.e. the petitioner. There is no illegality or infirmity in the reasoning given in the impugned order, hence no interference is required by this Court under Article 226 of the Constitution. 13. For the reasons stated above, the writ petition is dismissed. No order as to costs.