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2010 DIGILAW 3793 (ALL)

Bangali Baboo v. Bangali Mal Gupta

2010-12-22

SHASHI KANT GUPTA

body2010
JUDGMENT : Shashi Kant Gupta, J. – This writ petition has been filed, inter alia, for quashing the order dated 19.11.2010 passed by District Judge, Agra in Misc. Appeal No. 193 of 2010 and for further direction to restrain the respondent from evicting the petitioner from the shop in dispute in pursuance to the order dated 29.10.2010 passed by the Prescribed Authority in P.A. Case No. 28 of 2002. 2. Today supplementary affidavit has been filed by the petitioner to indicate that the matter is fixed on 24.1.2011 before the appellate Court which is taken on record. 3. The brief facts of the case are as follows: The respondent filed a release application under Section 21(1)(a) of U.P. Act No. 13 of 1972 in the Court of Prescribed Authority, Agra which was registered as P.A. Case No. 28 of 2002 (Bangali Mal Gupta Vs. Bangali Baboo). The Prescribed Authority allowed the aforesaid release application and by order dated 29.10.2009 directed the petitioner to vacate the shop in dispute in two months. 4. The petitioner preferred an Appeal No. 193 of 2010 under Section 22 of the U.P. Act No. 13 of 1972 and also moved a stay application along with affidavit for staying the operation of eviction order dated 29.10.2010. The appeal was admitted on 19.11.2010 and the notice was issued to the respondent-landlord fixing 29.11.2010. However, the court below refused to pass ex-parte stay order on the stay application although the land lord had filed his caveat. On 29.11.2010 the District Judge, Agra transferred the appeal to the court of Additional District Judge, Court No. 6, Agra. On 29.11.2010 although the counsel for the appellant was present none was present on behalf of the respondent, however, the matter was adjourned to 9.12.2010 and thereafter, it was fixed on 20.12.2010. On the said date since the presiding officer was on leave, therefore, the matter stood adjourned to 24.1.2011. 5. It is submitted by the learned counsel for the petitioner that the order of the appellate court dated 19.11.2010 refusing to grant stay order is absolutely illegal arbitrary and against the provisions of law. On the said date since the presiding officer was on leave, therefore, the matter stood adjourned to 24.1.2011. 5. It is submitted by the learned counsel for the petitioner that the order of the appellate court dated 19.11.2010 refusing to grant stay order is absolutely illegal arbitrary and against the provisions of law. The Prescribed Authority has already allowed the release application therefore, the petitioner can be evicted from the disputed premises in pursuance of the release order, but the lower appellate court without considering the aforesaid aspect has illegally refused to pass an order on the stay application although the landlord has already put in appearance in the appeal and avoiding to file any counter affidavit in the matter. It is further submitted that in case, if any, interim protection is not granted to the petitioner, there is every likelihood that the respondent will evict the petitioner from the shop in dispute and the appeal would be rendered infructuous. 6. Heard learned counsel for the petitioner and perused the record. 7. From the record it is clearly evident that although the appeal was admitted on 19.11.2010 however, no interim order was passed on the stay application of the petitioner. The respondent-landlord has already put in appearance before the appellate court and now the matter is fixed on 24.1.2011 before the appellate Court. The contention of the leaned counsel for the petitioner is that if the interim protection is not granted in his favour there is every likelihood that he will be evicted from the disputed premises and the appeal would be rendered infructuous. The argument has force and appeals to me. The approach of lower appellate court cannot be appreciated, impugned order passed by the prescribed authority certainly has civil consequences, it cannot be disputed that it may lead to his eviction from the disputed premises. Therefore, the appellate Court should have disposed of the stay application, particularly when the appeal was already admitted by it. 8. In view of the aforesaid circumstances, this petition is finally disposed of without issuance of notice to opposite party because in my opinion issuance of notice to opposite party will unnecessary delay the proceedings before the appellate court in an appeal. 9. 8. In view of the aforesaid circumstances, this petition is finally disposed of without issuance of notice to opposite party because in my opinion issuance of notice to opposite party will unnecessary delay the proceedings before the appellate court in an appeal. 9. Considering the facts and circumstances of the case, this petition is finally disposed of with a direction to the lower appellate court to pass an appropriate order on the stay application of the petitioner on 24.1.2011 positively. Till then the petitioner shall not be evicted from the disputed premises. It is made clear that this Court has not expressed any opinion on the merits of the case and it will be an independent exercise of the concerned authority to pass appropriate orders in accordance with law. Petition Disposed Off.