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2014 DIGILAW 3271 (ALL)

Satish Chand Bhola v. Rajeev Sharma

2014-11-03

RAN VIJAI SINGH

body2014
JUDGMENT Ran Vijai Singh,J. Heard Sri K.K.Arora, learned counsel for the petitioner and Sri Y.K.Sinha, learned counsel for the respondent. 2. By means of this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the orders dated 4.12.2010 passed by the Prescribed Authority/Civil Judge (Senior Division) Ghaziabad in P.A.Case No. 8 of 2007 (Rajeev Sharma Vs. Satish Chand Bhola) and judgment and order dated 16.9.2014 passed by the Additional District and Sessions Judge, Court No. 10, Ghaziabad in Rent Civil Appeal No. 5 of 2011 (Satish Chand Bhola Vs. Rajeev Sharma). 3. Vide order dated 4.12.2010, the release application filed by the respondent under section 21(1)(a) of the U.P. Act No. 13 of 1972 was allowed, whereas by the subsequent order dated 16.9.2014, the appeal filed by the petitioner against the order dated 4.12.2010 has been dismissed. 4. Sri Arora,learned counsel for the petitioner has submitted that the impugned appellate court's order suffers from non-consideration of two sale-deeds filed by the petitioner through an application filed under Order 41, Rule 27 of the Code of Civil Procedure (in short C.P.C.). 5. When the case was taken up on 13.10.2014, it was argued by Sri Sinha, learned counsel for the respondent that the petitioner has not pressed this point before the appellate court even after allowing the aforesaid application. Sri Arora at that point of time has sought time to file an amendment application. Pursuant thereto, he has filed the amendment application and the amendment application was allowed on 14.10.2014. In paragraph 8 of the affidavit filed in support of the amendment application it is stated by the petitioner that when the argument was made before the appellate court, the appellant-petitioner was present in the court and his counsel namely Sri Bhupendra Kumar Nimmi has emphasized that the landlord has two more alternative accommodations available to him in the vacant state and which accommodations were more suitable considering his need and nature of business proposed by him. It has also been stated that he had also made reference to his application dated 2.5.2011 filed order Order 41, Rule 27 of the C.P.C. and the order dated 14.7.2011 passed thereon and also to the sales deeds dated 19.4.1994 and 12.6.2006. 6. It has also been stated that he had also made reference to his application dated 2.5.2011 filed order Order 41, Rule 27 of the C.P.C. and the order dated 14.7.2011 passed thereon and also to the sales deeds dated 19.4.1994 and 12.6.2006. 6. Sri Sinha has shown a letter sent by Sri Sudhir Jahauri, learned counsel for the landlord before the appellate court in which it is stated that this point was neither argued nor even a single word about the documents filed in appeal along with the application under Order 41 Rule 27 of C.P.C. before the appellate court has been pressed. The question as to whether the aforesaid point was raised or not before the appellate court is a question of fact and that cannot be gone into here sitting under 226 of the Constitution of India and the proper course for the petitioner was to file review application, which could only be seen by the court concerned before whom this point was raised and argued. 7. Taking note of that, this writ petition is disposed of with the liberty to the petitioner to file a review application on the ground which has been pressed before this Court within a period of three weeks from today along with certified copy of the order of this Court. In case, such an application is filed that may be considered and decided by passing a reasoned order after hearing both the parties, without entertaining any objection to the maintainability of the application, on merit. In case, the review application is filed as directed by this Court, the order of release shall not be enforced till the decision on the petitioner's review application. In case, the appellate court finds that the point was raised and pressed and not considered in that eventuality he may pass fresh order looking into the effect of allowing the application filed under Order 41, Rule 27 of the Code of Civil Procedure. It is also observed that the court below shall make all endeavour to decide the same itself expeditiously but not later than three months from the date of filing of review application.In each circumstance, either allowing or rejecting the application, the reason has to be recorded.