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2012 DIGILAW 2939 (ALL)

Shanti Devi and Others v. Ramshree and Others

2012-12-18

SIBGHAT ULLAH KHAN

body2012
Sibghat Ullah Khan, J.— Heard Smt. Rama Goel Bansal learned counsel for the petitioners and Sri K.K.Tiwari learned counsel who has appeared for landlord-respondents at the admission stage. Supplementary affidavit has been filed by the learned counsel for the petitioners which is taken on record. Sri K.K.Tiwari learned counsel for the landlord-respondents categorically states that writ petition may be finally disposed of at this stage as he does not propose to file any counter affidavit. Petitioners are tenants in a shop in Sadar Bazar, Jhansi. Jhansi is one of the 14 Municipal Corporations of U.P. Landlord-respondent filed release application against the petitioners under Section 21 of U.P.Act No. 13 of 1972 in the form of P.A. Case No. 15 of 2006 before Prescribed Authority. Tenant-petitioners filed application for inspection through Advocate Commissioner of a shop, which was alleged by the tenants to be available to landlord in vacant state. The application was rejected by the Prescribed Authority. Thereafter, release application was allowed by Prescribed Authority/J.S.C.C., Jhansi through judgment and order dated 30.07.2010, a copy of the said judgment is annexed as Annexure 4 to this writ petition. On internal page 13 of the said annexure, the trial Court had mentioned that no spot inspection report was available on file. Thereafter, tenant-petitioners filed appeal in the form of R.C.A. No. 24 of 2010 against final order passed by the Prescribed Authority. Appeal is still pending. The tenant-petitioners filed application for inspection, before the lower Appellate Court which was rejected on 06.10.2012. Thereafter, recall application was filed which was also dismissed by Lower Appellate Court/ADJ/Special Judge E.C.Act on 03.11.2012, which order has been challenged through this writ petition. A copy of order dated 06.10.2012 has been filed through supplementary affidavit, today. The Appellate Court has mentioned that as similar prayer had been rejected by Prescribed Authority and as the said interim order had not atonce been challenged, hence fresh prayer for appointment of Commission could not be made in Appeal. In my opinion, the view of the Lower Appellate Court is wrong. When appeal is filed against final order, interim order which affects the final order can very well be challenged in the said appeal on the principle of Section 105(1) C.P.C.. Accordingly, the orders dated 06.10.2012 and 03.11.2012 are set aside. Application for inspection through Advocate Commissioner filed by the petitioner before lower Appellate Court is allowed. When appeal is filed against final order, interim order which affects the final order can very well be challenged in the said appeal on the principle of Section 105(1) C.P.C.. Accordingly, the orders dated 06.10.2012 and 03.11.2012 are set aside. Application for inspection through Advocate Commissioner filed by the petitioner before lower Appellate Court is allowed. Petitioner is directed to deposit the requisite amount of fees and expenses of Advocate Commissioner on the next date fixed in the appeal in the second week of January 2013. Thereafter, some learned Advocate shall be appointed who shall give report after inspection within one month. The appeal shall be decided by lower Appellate Court very expeditiously, thereafter and apart from objections on the Commissioner report, if any, no other adjournment shall be granted to any of the parties, except under very special circumstances and if any adjournment is granted to any of the parties, it shall be on heavy cost which shall not be less than Rs.500/- per adjournment payable before the next date. It is stated that lower Appellate Court has stayed the eviction of the petitioner pursuant to the order passed by the Prescribed Authority on payment of Rs.1000/- per month rent. That order is modified and it is directed that until decision of the Appeal, petitioner shall not be evicted from the property in dispute provided that with effect from December 2012 onwards petitioner pays rent to the landlord-respondents at the rate of Rs.1,500/- per month by depositing the same by 7th of each succeeding month before Lower Appellate Court for immediate payment to landlord-respondents. In case of two defaults stay order shall stand automatically vacated. It is reported that 20.12.1012 is the next date fixed in the appeal. The said date shall be adjourned to some date in the second week of January 2013. Parties can communicate this part of the order to the Lower Appellate Court through affidavit. Writ petition is disposed of, accordingly. _____________