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2013 DIGILAW 396 (UTT)

KALAWATI BHAGAT v. MOHAMMAD YASIN

2013-06-27

B.S.VERMA

body2013
JUDGMENT Hon’ble B.S.Verma, J. (Oral) 1. Mr. Arvind Vashisth, Advocate for the petitioner. 2. Mr. Pradeep Hairiya, Advocate for respondent no.2. 3. Mr. Rajesh Sharma, Brief Holder for respondent nos.3 and 4. 4. No one appears for respondent no.1 inspite of service. 5. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 1.5.1991 and 23.10.1998 (Annexure No.5 and 6) passed by Prescribed Authority and District Judge, respectively. 6. Briefly stated, the facts of the case are, that Late Trilochan Bhagat was tenant of shop no.124 Sadar Bazar Ranikhet District Almora, who took it on rent from Tara Dutt Tiwari in the year 1965. Sri Trilochan Bhagat died on 22.1.1977 after the U.P. Act No.13 of 1972 came into force. It is pleaded in the petition that respondent no.1 purchased the shop in question from Durga Devi wife of Tara Dutt Tiwari on 20.12.1984 and started realising rent from respondent no.2. The landlord Mohd. Yasin instituted a Small Cause Suit being SCC suit No.2 of 1987 against respondent no.2 Sri Hansa Dutt Bhagat. In the written statement filed by the respondent no.2, the respondent no.2 took a specific plea that there are other joint tenants and they are necessary party to the suit but no order was passed to implead other joint tenants. Suit was decreed vide judgment and decree dated 1.3.1989. Against the said judgment, revision was preferred, which was allowed. Thereafter, the respondent no.1/landlord filed an application under Section 21(1)(a) of the U.P. Act No.13 of 1972 against respondent no.2 on the ground of bonafide need. The case was contested by the respondent no.2 by filing written statement. Vide judgment and order dated 1.5.1991, Prescribed Authority allowed the application of the landlord Mohd. Yasin. Feeling aggrieved, respondent no.2 preferred an appeal, which was also dismissed on 23.10.1998 by the appellate court. In these proceedings, respondent no.2 raised objections which were also raised in the SCC suit that there are other joint tenants i.e. legal heirs of Late Sri Trilochan and they are necessary party to the suit. Feeling aggrieved, respondent no.2 filed a writ petition before the Allahabad High Court, being Writ Petition No.35956 of 1998 (M/S). Writ petition was dismissed and on the request of respondent no.2, ten months’ time was granted to the respondent no.2 vacate the premises. Feeling aggrieved, respondent no.2 filed a writ petition before the Allahabad High Court, being Writ Petition No.35956 of 1998 (M/S). Writ petition was dismissed and on the request of respondent no.2, ten months’ time was granted to the respondent no.2 vacate the premises. Feeling aggrieved by the impugned judgment and orders dated 1.5.1991 passed by Prescribed Authority and order dated 23.10.1998 passed by the appellate court, the petitioner has filed the present writ petition before this Court. 7. Learned counsel for the petitioner files supplementary affidavit, which is taken on record. 8. According to the petitioner, she is joint tenant of the disputed shop and was not heard during the pendency of proceedings before the Prescribed Authority and appellate court. 9. During the course of arguments, learned counsel for the petitioner confines his prayer to the extent that the petitioner may be permitted to raise objection during execution and the petitioner may not be evicted without following due process of law. Averments to this effect has been made in the supplementary affidavit. 10. Considering the peculiar facts and circumstances of the case, liberty is given to the petitioner to raise objections before the Prescribed Authority when the application is moved by the landlord for execution. If such objections are filed by the petitioner in the execution application, the same shall be disposed of by the Prescribed Authority, in accordance with law, in exercise of power under Section 151 of C.P.C. 11. With the above liberty, the writ petition is disposed of.