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2014 DIGILAW 2231 (ALL)

Sunil Kumar Agrahari v. Sandeep Kumar

2014-07-28

ABHINAVA UPADHYA

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JUDGMENT Abhinava Upadhya,J. By means of this writ petition the petitioner has come up to this Court with the grievance that on his application under Order XXXIX Rule 1 and 2 CPC only notices have been issued. The petitioner has filed a suit against eviction being Suit No. 723 of 2014 before the Civil Judge (Senior Division), Varanasi. 2. The necessity for filing the aforesaid suit arose because the respondents are threatening to evict the petitioner from the shop in question without applying due process of law. It is claimed that the petitioner's father was a tenant in a shop situated in House No. K43/54-53, Viseshwarganj, Varanasi since the year 1976. The father of the petitioner unfortunately died long time back and the petitioner is in possession as tenant in the said shop. The erstwhile landlord, namely, Krishna Kumar Chaudhary filed an application under Section 21 of the U.P.Urban Buildings (Regulation of Letting, Rent and Eviction), Act, 1972, which was contested by the petitioner and other tenants and the same was finally rejected by the order of the Prescribed Authority on 12.12.2003. It appears that under Section 22 of the Act the erstwhile landlord filed a rent appeal being Appeal No. 8 of 2004, which also came to be dismissed on 2.1.2014. 3. It appears that in the meantime, the erstwhile landlord sold the said property in favour of defendant-respondent no.1. It is claimed that the respondent no.1 is using force to evict the petitioner from the premises in question. It is submitted that the petitioner then filed the aforesaid suit being Suit No. 723 of 2014 along with an application under Order XXXIX Rule 1 and 2 CPC on which application by order dated 4.7.2014 only notices have been issued. The ground for not granting ex parte injunction has been taken by the court below is that the petitioner's name is not mutated in the Nagar Palika record as tenant. From the order under Section 21 of the aforesaid Act the petitioner was one of the party against whom the erstwhile landlord has initiated proceedings for eviction that was rejected, which resulted in filing of the appeal and the appeal has also been rejected. As such, prima facie it does appear that the petitioner is a tenant and in possession of the shop in question. 4. As such, prima facie it does appear that the petitioner is a tenant and in possession of the shop in question. 4. In my view, no useful purpose would be served in keeping the writ petition pending further and it is being disposed of with the direction to the court below to decide the application of the petitioner under Order XXXIX Rule 1 and 2 CPC and till such time it is decided the petitioner shall not be evicted from the property in question except in accordance with law. 5. Learned counsel for the petitioner undertakes that the petitioner will not seek any adjournment with regard to disposal of the application under Order XXXIX Rule 1 and 2 CPC. 6. With the aforesaid direction, the writ petition is disposed of.