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2011 DIGILAW 531 (ALL)

BHANU PRATAP MISHRA v. RAKESH NIGAM

2011-03-03

RAKESH TIWARI

body2011
JUDGMENT RAKESH TIWARI, J.-Heard learned Counsel for the parties and perused the record. 2. This writ petition has been filed challenging the validity and correctness of the judgment and order dated 9.2.2011 passed by the Prescribed Authority/IInd Additional Judge (Small Causes Court), Kanpur Nagar in Release Case No. 11 of 2007, Rakesh Nigam amd others v. Smt. Ranno Devi and others by which Application under section 21 (1) (a) of V.P. Act No. 13 of 1972 of the landlord has been dismissed posting the case on 25.2.2011 for hearing. 3. The brief facts of the case are that the disputed shop was taken on rent by Late Sri Ram Narain Mishra. The petitioner/Bhanu Pratap Mishra, claims himself to have right over the said shop being son of the deceased-tenant. 4. The contention of learned Counsel for the petitioner is that the aforesaid case was proceeded ex parte against him as he had no knowledge about filing or pendency of the release application before the Prescribed Authority for the reason that neither notice was served upon him nor his brother who was also party in the case was informed about filing or pendency of the release application. 5. It appears from record that an application was filed on 15.2.2008 before the Prescribed Authority by respondent-landlord for order for publication of notices. It was allowed by the Court directing the respondents to take steps for publication in daily newspaper "Kanpur Ujala". As the petitioner did not appear even after publication of notices, the Prescribed Authority by order dated 20.8.2008 directed to proceed ex-parte against the petitioner. Thereafter, on 5.1.2011, the petitioner filed an application for recall of the order dated 20.8.2008 with the prayer to grant him an opportunity of hearing before deciding the release case No. 11 of 2007. 6. Relevant paragraph Nos. Thereafter, on 5.1.2011, the petitioner filed an application for recall of the order dated 20.8.2008 with the prayer to grant him an opportunity of hearing before deciding the release case No. 11 of 2007. 6. Relevant paragraph Nos. 3, 4, 5 and 6 of the said application are quoted as under: ** 3- ;g fd ‘kiFkdrkZ dks ekuuh; U;k;ky; }kjk izdkf’kr lekpkj&i= Hkh ugha feyk vkSj u gh mlds irs ij Hkstk x;kA 4- ;g fd ‘kiFkdrkZ dks oknh ,oa izfroknh la[;k 3 esa Hkh dksbZ lwpuk ekSf[kd :i ls ugha nh FkhA 5- ;g fd ‘kiFkdrkZ ekuuh; U;k;ky; gh fopkjk/khu ,l0lh0lh0 eqdnek uacj 349 lu~ 2006 jkds’k fuxe vkfn cuke Jherh jUuks vkfn esa iSjoh djus vkrk Fkk vkSj mDr eqdnek dh rkjh[k Hkwy tkus ds dkj.k fnukad 4-1-2011 dks U;k;ky; esa rkjh[k irk djus vk;k rks bl eqdnek dh tkudkjh gqbZ rc mlus vius vf/koDrk Jh vt; dqekj ,MoksdsV ls Nkuchu djkbZ rks ;g irk pyk fd mlds f[kykQ fnukad 20-8-2008 dks ,di{kh; lquokbZ dk vkns’k gks pqdk gS vkSj eqdnek cgl gsrq fu;r gSA 6- ;g fd ‘kiFkdrkZ us tkucw>dj gkftj vnkyr vkus esa =qfV ugha dh gS tks nsjh gqbZ gS og eqdnes dh tkudkjh u gksus ds dkj.k gqbZ tks ekQ fd;s tkus ;ksX; gSA** 7. The respondent also filed objection to the said application on 11.1.2011. Reply to the said objection was also filed by the petitioner on 17.1.2011. The Prescribed Authority vide order dated 9.2.2011 rejected the application for recall moved by the petitioner against which petitioner has come before this Court. 8. The respondent also filed objection to the said application on 11.1.2011. Reply to the said objection was also filed by the petitioner on 17.1.2011. The Prescribed Authority vide order dated 9.2.2011 rejected the application for recall moved by the petitioner against which petitioner has come before this Court. 8. The order reads thus: jkts’k fuxe vkfn izfr Jherh jUuks nsoh vkfn fnukad 9-2-11 i=koyh okLrs vkns’k izkFkZuk&i= la[;k 58 gsrq fu;r gS izkFkZuk&i= 58 varxZr fu;e 22 ¼ch½ ,oa ¼,Q½ js.V ,DV la[;k 13 lu~ 1972 lgifBr vkns’k 9 fu;e 7 ,oa /kkjk 161 lh0ih0lh0 dk vk’k; kd fn;k x;k gS fd mlds fo#) ikfjr ,di{kh; lquokbZ dk vkns’k fnukad 20-8-2009 dks fu;r djds izkFkhZ dks lquokbZ dk volj iznku fd;k tk;sA mDr i=koyh cgl esa fu;r dj nh x;h gSA izkFkZuk i= ‘kiFk&i= esa lefFkZr gS ftl oij fdlh us vkifRr dhA lquk rFkk i=koyh dk voyksdu fd;kA izLrqr okn esa fnukad 20-8-2006 dks esjs fo}ku iwokZf/kdkjh }kjk foi{kh la[;k 1 ,oa 2 ij rkehy i;kZIr ekus tkus ds ckn okn muds fo#) ,di{kh; :i ls vxzlfjr fd;k x;k rks rc ls vc rd nks o”kZ ls vf/kd dk le; chr pqdk gSA foi{kh 2 ;fn pkgrk rks bl chp U;k;ky; esa mifLFkr vkdj vius fo#) ikfjr ,di{kh; vkns’k dks fjdkWy djk ldrk Fkk ijarq mlds }kjk ,slk ugha fd;k x;k vkSj vc tcfd i=koyh cgl esa fu;e dks pqdh gS rc izfroknh la[;k 2 }kjk vkns’k fnukafdr 20-8-2008 fujLr dks djus gsrq izkFkZuk&i= fn;k x;k gS foi{kh ds d`R; ls ,slk izrhr gksrk gS fd og tkucw>dj oknh dh dk;Zokgh dks foyafcr djuk pkgrk gSA tcfd js.V ekeys dk fuLrkj.k ‘kh?kz fd;s tkus dk izko/kku gSA vr% esjh jk; esa izfroknh la[;k 2 }kjk izLrqr izkFkZuk&i= Lohdkj fd;s tkus ;ksX; ugha gSA vkns’k izfroknh la[;k 2 }kjk izLrr izkFkZuk&i= 58 fujLr fd;k tkrk gSA i=koyh okLrs cgl fnukad 25-2-2011 dks U;k;ky; ds le{k is’k gksA ,l0Mh0 viBuh; f}rh; vij y?kqokn U;k;k/kh’k** 9. The only contention of learned Counsel for the petitioner before this Court is that the case No. 11 of 2007 is fixed before the Court below on 4.3.2011 for arguments in which he may also be allowed to adopt the pleadings and written statement etc. filed by his brother who is also a tenant of the disputed shop and argue the case as regards his own rights. 10. filed by his brother who is also a tenant of the disputed shop and argue the case as regards his own rights. 10. Sri P.K. Srivastava, who has filed caveat application in this case has submitted that the Court has rightly observed that the petitioner has not appeared before the Court for more than two years after passing of the orders to proceed ex parte as he wanted to delay the proceeding; that the Court has rightly directed to proceed ex parte after publication of notice and finding that the service was deemed to be sufficient as such there is no procedural illegality in ttt-at order. He has also submitted that from perusal of paragraphs 3 to 6 of recall application relied upon by the petitioner for setting aside the ex parte order, it is apparent that the petitioner has not been able to show any basis as to who has informed him about the pendency of case No. 11 of 2007 and in what manner he has come to know about the pendency of case on 4.1.2011, as such, cause shown by the petitioner for setting aside the ex parte order is baseless and not sufficient. 11. After hearing learned Counsel for the parties, it appears that the petitioner as well as his brother are party in release case No. 11 of 2007. Though the brother of the petitioner appeared and contested the case by filing written statement etc., the petitioner did not appeared before the Court despite service of notice being found sufficient; that he has also not shown sufficient cause for non appearance for more than two years after passing of the ex parte order and that notice upon one of the co-tenant is sufficient upon all of the tenants. 12. It is settled law that where the matter of joint tenancy is involved, notice upon one is deemed to have been served upon all. Further more, the Court has proceeded in accordance with law after publication of notice in so far as petitioner is concerned who appeared in the Court only after 4.1.2011. 13. During the course of arguments, learned. Counsel for the petitioner has confined himself to residual prayer in the writ petition to allow him to argue his case on 4.3.2011 through a Counsel by adopting the pleadings in the written statement and evidence etc. 13. During the course of arguments, learned. Counsel for the petitioner has confined himself to residual prayer in the writ petition to allow him to argue his case on 4.3.2011 through a Counsel by adopting the pleadings in the written statement and evidence etc. of his brother in release case No. 11 of 2007. Learned Counsel for the respondent has objection to de-novo proceeding but no objection to the said prayer for allowing the petitioner 0 argue his case on 4.3.2011 or when it is heard finally. 14. In the circumstances, this writ petition is dismissed in so far as prayer No.1 for quashing of order dated 9.2.2011 is concerned, so far as prayer No.2 is concerned, learned Counsel for the petitioner has given a statement before the Court that he will only adopt pleadings and written statement etc. of his brother/Chandra Kant Mishra filed in case No. 11 of 2007 and hence either the petitioner may himself or through his Counsel may argue the case on 4.3.2011 or on any of other date when the case is argued. 15. Accordingly, petitioner is permitted to argue the case only adopting pleadings in written statement etc. of his brother in case No. 11 of 2007 on 4.3.2011. It is made clear that this order would not amount to grant of adjournment to the petitioner on 4.3.2011. The Court is at liberty to hear and decide the case tomorrow. 16. Let a certified copy of this order be issued to the learned Counsel for the parties on payment of requisite charges by today. Ordered Accordingly.