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2013 DIGILAW 1958 (ALL)

Prem Nath Mehrotra v. Addl. District Judge, Court No. 1, Etawah and Others

2013-07-26

RAJES KUMAR

body2013
Rajes Kumar, J.— By means of the present petition, the petitioner is seeking a writ, order or direction in the nature of certiorari quashing the impugned orders dated 4th May, 2013 and 3rd September, 2011, passed by the Additional District Judge, Court No.1, Etawah and further a direction in the nature of mandamus allowing the amendment application dated 4th July, 2011 ( Paper No. 35-Ga/1), filed by the petitioner. The brief facts, giving rise to the present writ petition, are that the petitioner is admittedly a tenant of the Premises No. 308, Mohalla Sarain Shekh (Tiraha Bazar, Railway Station Road), District Etawah, consisting of certain rooms in which the petitioner is doing medical practise in the name and style of 'Anand Medical Hall', since 1953, regularly and at present the age of the petitioner is about 70 years. Earlier to it, the father of the petitioner, late Vishwambhar Nath Mehrotra, was doing the medical practise in the above premises. The respondent no.3, Smt. Abhilasha Devi, claiming herself to be the land-lady of the disputed premises, filed a release application, under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act No. 13 of 1972') for release of the property in question before the Civil Judge (Senior Division), Etawah/Prescribed Authority, which has been registered as Case No. P.A. 8 of 2001. The petitioner contested the release application and filed the written statement wherein, apart from other pleas, has also stated that the relations between the respondent no.3 and her husband, who is also a Doctor by profession, are not at all strained and their relations are very cordial. The respondent no.3 is not in a bonafide need of the premises in dispute. The court below by the judgment and order dated 10th November, 2008 has dismissed the release application. Against the judgment and order dated 10th November, 2008, the respondent no.3 preferred an Appeal under Section 22 of U.P. Act No. 13 of 1972 before the court of the District Judge, Etawah, which has been registered as P.A. Appeal No. 18 of 2008 and has been transferred and is now pending before the Additional District Judge, Court No.1, Etawah. Before the appellate court, the petitioner moved several applications, including Applications No. 33-Ga, 38-Ga and 40-Ga. Before the appellate court, the petitioner moved several applications, including Applications No. 33-Ga, 38-Ga and 40-Ga. Application No. 38-Ga was not pressed by the petitioner, which has been dismissed as not pressed. In the Application No. 33-Ga, the petitioner has stated that the respondent no.3 has claimed her ownership right over the premises in question on the basis of the will executed by Smt. Chameli Devi on the basis of which, the petitioner was paying rent to the respondent no.3, but she has not disclosed the date of execution of the will and other details etc. and after much efforts the petitioner came to know about the details of the will in the year 2011. By the Application No. 35-Ga/, the petitioner sought amendment in the written statement to the extent that the respondent no.3 filed the application claiming herself to be as the landlady of the property in dispute, which according to her devolved upon her, by virtue of a will executed by Smt. Chameli Devi, but concealed the fact that by which mode of transfer Smt. Chameli Devi got the premises in dispute, therefore, the will alleged to have been executed in favour of the appellant-respondent no.3 cannot be believed. This fact has deliberately been concealed by the respondent no.3 and it amounts to playing fraud on the court. This fact has come to the notice of the petitioner during the pendency of the appeal that Chaudhary Gurdayal Singh has executed a Tamliknama in favour of his wife Smt. Chameli Devi for a limited purpose only giving right of maintenance. Therefore, the written statement needs to be amended accordingly. By the Application No. 40-Ga, the petitioner has prayed that the will executed by Smt. Chameli Devi in favour of the respondent no.3 be permitted to be filed as an evidence. The Appellate court by the order dated 3rd of September, 2011 has rejected the Application no.38-Ga as not pressed and other applications, namely, 33-Ga, 35-Ga and 40-Ga have been rejected on merits after hearing both the parties. Thereafter, the petitioner filed a review application on 6.10.2012, seeking review of the order dated 3rd of September, 2011, after one year, rejecting Application 35-Ga, seeking amendment in the written statement. Said Review Application has been rejected vide order dated 4th May, 2013. Thereafter, the petitioner filed a review application on 6.10.2012, seeking review of the order dated 3rd of September, 2011, after one year, rejecting Application 35-Ga, seeking amendment in the written statement. Said Review Application has been rejected vide order dated 4th May, 2013. Being aggrieved by the orders rejecting the application, seeking amendment in the written statement and the review application, the present writ petition has been filed. It may be mentioned here that the order of the Appellate court, passed on other applications, are not subject matter of challenge in the present writ petition. Heard Sri Ravi Kiran Jain, learned Senior Advocate, assisted by Sri Shamim Ahmad, appearing for the petitioner. Learned counsel for the petitioner submitted that the original landlord of the premises in dispute was late Chaudhary Gurdayal Singh, who had executed a registered Tamliknama dated 28th December, 1955 in favour of his wife Smt. Chameli Devi by which only limited right for maintenance was given to her and absolute right for transfer of the property was not given to her, therefore, Smt. Chameli Devi had no right to execute any will in respect of the property in dispute in favour of her daughter-in-law, Smt. Abhilasha, who filed the release application, claiming herself to be the land-lady of the premises in question and started taking rent after the death of her mother in law, Smt. Chameli Devi. The respondent no.3, in the release application, did not give any detail about the Tamliknama and concealed the material fact by playing fraud to the court as well as to the petitioner. Status of the respondent no.3 as the land-lady has been disputed. He submitted that concealment of fact and fraud to the court vitiates all the proceedings and, therefore, the Appellate court ought to have allowed the Amendment Application. Reliance is being placed on a decision of the Apex Court in the case of A.V. Papayya Sastry v. Govt. of A.P., reported in (2007) 4 SCC 221 . He further submitted that the filing of the Review Application on 6th October, 2012 and its rejection on 4.5.2013 explains the delay in challenging the order dated 3rd September, 2011. I have considered submissions of learned counsel for the petitioner and I do not find substance in the submissions. The Appellate court has rejected the application mainly on the ground that the petitioner was the tenant in the premises in question. I have considered submissions of learned counsel for the petitioner and I do not find substance in the submissions. The Appellate court has rejected the application mainly on the ground that the petitioner was the tenant in the premises in question. In the written statement, the petitioner has categorically accepted the respondent no.3 as the land-lady. Smt. Chameli Devi died in the year 1986 and since then petitioner is paying the rent regularly to the respondent no.3. In the rejoinder affidavit to the written statement, the respondent no.3 has disclosed abut execution of the Tamliknama dated 28th December, 1955 by Chaudhary Gurudayal Singh in favour of his wife Smt. Chameli Devi and also about execution of the will by Smt. Chameli Devi in her favour. Therefore, there was no concealment of fact by the respondent no.3. It is further observed that after the death late Chaudhary Gurudayal Singh, his wife, Smt. Chameli Devi became owner of the property in dispute and apart from the Tamliknama, she became owner of the property in question by inheritance also and, thus, had a right to execute the will in respect of the property in dispute. Now at the appellate stage, it is not open to the petitioner to raise such plea and seek amendment in the written statement. It has been held by the Appellate court that neither any fact has been concealed nor any fraud has been committed by the respondent no. 3. Since there was no error in the impugned order dated 3rd September, 2011, therefore, the Review Application has been rightly rejected. The main thrust of the argument of learned counsel for the petitioner is that the respondent no.3 has concealed the fact about the execution of the Tamliknama and, thus, committed fraud to the court and to the petitioner, which vitiates all the proceedings. The respondent no.3 has acquired the ownership of the property in dispute by virtue of will executed by Smt. Chameli Devi and also by virtue of inheritance being the legal heir of Smt. Chameli Deiv. Whether a limited right for maintenance was given by Chaudhary Gurudayal Singh by Tamliknama or absolute right was given by him to his wife, was a concern between late Chaudhary Gurudayal Singh and his wife, Smt. Chameli Devi. Whether a limited right for maintenance was given by Chaudhary Gurudayal Singh by Tamliknama or absolute right was given by him to his wife, was a concern between late Chaudhary Gurudayal Singh and his wife, Smt. Chameli Devi. However, in any case after the death of late Chaudhary Gurudayal Singh, his wfie, Smt. Chameli Devi, have inherited the property being the legal heir. Likewise, the respondent no.3, acquired the ownership right over the property in dispute by way of will executed by late Smt. Chameli Devi and after her death by inheritance also. Therefore, the question of playing fraud by her does not arise. In my opinion, there was no concealment of fact. In the rejoinder affidavit, the petitioner has categorically stated about execution of the registered Tamliknama by late Chaudhary Gurudayal Singh in favour of his wife, Smt. Chameli Devi and execution of the will by Smt. Chameli Devi in favour of her daughter-in-law, respondent no.3. This fact was very well brought to the knowledge of the court as well as to the petitioner. It was open to the petitioner to take necessary steps to challenge the same at that stage itself, if so advised. Therefore, now taking the plea of concealment of fact and fraud has no leg to stand. The decision cited by the learned counsel for the petitioner in the case of A.V. Papayya Sastry v. Govt. of A.P. (supra ) does not apply to the present case. There is no quarrel about the principles laid down by the Apex Court that the fraud to the court vitiates all the proceedings, whether there is any concealment of fact or any fraud has been committed to the court would depend upon the facts and circumstances of each case. In the said case, in the ceiling proceeding, under the Urban Land (Ceiling and Regulation) Act, 1976, the land-lord pleaded that the Port Trust, for whom the land was being acquired, has taken the advance possession and there was no surplus land. On these facts the competent authority, under the Ceiling Act, has not declared any land as surplus land. Subsequently, in an enquiry made, it was found that the Port Trust has, in fact, has not taken any advance possession and the land was in the possession of the tenants and a dispute between the land-lord and the tenant was going on. Subsequently, in an enquiry made, it was found that the Port Trust has, in fact, has not taken any advance possession and the land was in the possession of the tenants and a dispute between the land-lord and the tenant was going on. On such facts, the court allowed the recalling application of the State and has held that the actual fact has been concealed and a fraud has been committed by alleging that the Port Trust has taken advance possession, which led the Ceiling authority to take a view that there was no surplus land. When the case under the Ceiling Act has been re-opened and the same has been challenged, the court has set aside the order and reopened the proceeding on the ground that the Port Trust has denied to have taken the advance possession of the land in dispute and the very premises of passing of the order by the Ceiling authority did not exist. The High Court of Andhra Pradesh, in these circumstances, has recalled its earlier order and directed the Ceiling authority to decide the ceiling matter afresh and while recalling the order has observed that the land-lord has concealed the fact and committed fraud to the court. This view of the High Court has been affirmed by the Apex Court in the case cited by the learned counsel for the petitioner. However, in the present case, no such fact exists. The petitioner, after the death of Smt. Chameli Devi, treated the respondent no.3 as the owner and land-lady and regularly paid the rent and even in the written statement, the petitioner admitted the respondent no.3 as the land-lady to whom he paid the rent regularly. Thus, as stated above, there is neither any concealment of fact nor any fraud has been committed by the respondent no.3. Therefore, the decision cited by the learned counsel for the petitioner is not applicable to the facts and circumstances of the present case. The petitioner by seeking the amendment in the written statement now wants to resile from his earlier admission, admitting the respondent no.3 as the land-lady and intend to dispute her status as land-lady, which cannot be permitted, and has rightly been rejected. In my view the review application was barred by laches also. The petitioner by seeking the amendment in the written statement now wants to resile from his earlier admission, admitting the respondent no.3 as the land-lady and intend to dispute her status as land-lady, which cannot be permitted, and has rightly been rejected. In my view the review application was barred by laches also. The order on the Amendment Application has been passed on 3rd September, 2011 whereas the review application has been filed on 6th October, 2012. There was no explanation for such delay. In view of the foregoing discussions, I do not find any merit in the writ petition. In the result, the writ petition, being devoid of merits, fails and is dismissed. _____________