Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 802 (ALL)

Ahmad Abbas v. City Magistrate

2010-03-10

DEVENDRA PRATAP SINGH

body2010
JUDGMENT Hon'ble Devendra Pratap Singh,J. The respondent owner filed an application dated 22.3.1999 for declaration of vacancy of the disputed premises alleging that the petitioner was an unauthorized occupant who had forcibly occupied the premises when it was vacated by the erstwhile tenant. She also claimed release in her favour. The petitioner claimed that he was a tenant at Rs.50/- per month. After hearing the parties, the Rent Controller declared vacancy vide order dated 4.11.1999 which is under challenge by the petitioner and he is continuing in possession on the basis of an interim order of this Court dated 18.11.1999. 2. The counter affidavit in this case was filed by the owner in October, 2000 but the rejoinder affidavit was filed in September, 2006. This matter was heard on 23.7.2008 and the following order was passed. "This is tenant's writ petition, Eviction has been stayed through interim order. Supreme Court in Carona Ltd. Vs. M/s. Parvathy Swaminathan and sons, AIR 2008 SC 187 (Para 45) and R.K. Shukla Vs. Sudhrist Narain Anand, 2008 (2) A.R.C. 613 (Para 17) has held that equitable relief under Article 136 of gthe Constitution of India cannot be granted to a tenant appellant, who has not paid rent/mesne profit particularly during the penency of appeal. Same principle will apply to writ jurisdiction, which is also equitable relief. If the petitioner behaves in an unjust manner (by not paying the rent), then he is not entitled to equitable relief under Article 226/227 of the Constitution of India even though impugned judgments may be erroneous in law. Accordingly, list peremptorily on 11.9.2008 On the next date, an affidavit must be filed by or on behalf of petitioner to show the position of payment/deposit of rent upto date along with documentary evidence, i.e. rent receipt, money order coupon or tender failing which writ petition would be dismissed on the ground of non-payment of rent alone." 3. However, no affidavit was filed showing payment of rent/damages. One more opportunity was given by the following order on 27.8.2008. "List peremptorily again in the next cause list. If by the next date affidavit receiving payment of rent is not filed, writ petition would be treated to have been automatically dismissed. On the next date the case must be listed along with the file of the writ petition no.18068 of 2004 decided on 8.2.2007" 4. "List peremptorily again in the next cause list. If by the next date affidavit receiving payment of rent is not filed, writ petition would be treated to have been automatically dismissed. On the next date the case must be listed along with the file of the writ petition no.18068 of 2004 decided on 8.2.2007" 4. However, even till date nothing has been brought on record to show that the rent was deposited and even the case was listed premptorily the counsel for the petitioner sent repeated illness slips on 21.1.2009, 29.1.2009 and 17.2.2009. Under the High Court Rules, if a case is ordered to be listed peremptorily, it cannot be adjourned on a mere illness slip but a proper application has to be filed for adjournment. But no such application is on record. 5. Today also none appears for the petitioner to press this petition even in the revised list. 6. In fact, after declaration of vacancy, the premises were released in favour of the respondent-landlord vide order dated 14.12.1999 under section 16 of U.P. Act No. XIII of 1972. The petitioner-tenant preferred a revision against the said order which was also dismissed vide order dated 4.2.2004 against which he filed connected writ petition no.18068 of 2004. This petition has been dismissed after hearing the parties on 8.2.2007. 7. Considering all the aforesaid facts and keeping in mind the ratio laid-down by Hon'ble Supreme Court in the case of Carona Ltd. and R.K. Shukla (Supra) and also the spirit of the order dated 27.8.2008, this writ petition is dismissed with cost and the petitioner is directed to forthwith vacate the premises. 8. The petitioner himself had claimed that he was a tenant at Rs.50/- per month but yet he has not deposited the rent/damages since 1999 and therefore the cost is assessed at Rs.10,000/- which should be paid to the respondent-landlord through demand draft within a month from today. In case of failure, the same shall be recovered as arrears of land revenue from the petitioner and his properties by the Collector, Etawah within a further period of one month and the same be paid to respondent no.2.