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2014 DIGILAW 3489 (ALL)

Anand Ballabh v. Mohd. Iqbal

2014-11-24

RAN VIJAI SINGH

body2014
JUDGMENT Ran Vijai Singh,J. Heard Sri Rahul Sahai, learned counsel for the petitioner. 2. Through this writ petition the petitioner has prayed for issuing a writ of certiorari quashing the order dated 6.11.2014 passed by the Prescribed Authority/IV Civil Judge (Senior Division) Mathur in P.A. Case No. 45 of 2002 (Gul Mohammad vs. Krishna Kumar) as well as the orders dated 29.11.2012 and 17.7.2013 passed by the same authority in so far as the Prescribed Authority has not allowed the 103 Ga application. It has further been prayed for issuing a direction to allow the petitioner's 106 Ga application dated 1.4.2014. 3. The facts giving rise to the present writ petition are that the respondent landlord has filed an application under section under section 21(1)(a)(b) of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) in P.A. Case No. 45 of 2002 (Gul Mohammad vs. Krishna Kumar and others) for release of the accommodation in dispute. When the application was filed the original tenant late Shambhu Nath had died and his heirs were made party including one late Usha Devi, daughter of late Shambhu Nath. Late Usha Devi did not file any objection/ written statement to the release application but the other joint tenants had filed objection to the release application. Late Usha Devi had died on 17.7.2012. The landlord instead of filing an application for substituting the heirs of Late Usha Devi had made an application for mentioning 'since deceased' before the name of late Usha Devi. In due course, it appears an order was passed on 1.9.2012 by the learned Prescribed Authority to close the opportunity to lead the evidence and vide order dated 29.11.2012 he has allowed the application of the landlord to mention 'since deceased' before the name of late Usha Devi. 4. The petitioner, who claims himself to be the brother of late Usha Devi and was also opposite party in the release application, has filed an application seeking recall of the orders dated 1.9.2012 and 29.11.2012. So far as the order dated 1.9.2012 relating to closure to lead evidence is concerned that has been allowed by the learned Prescribed Authority vide order dated 17.7.2013 but no order has been passed with respect to the order dated 29.11.2012. 5. So far as the order dated 1.9.2012 relating to closure to lead evidence is concerned that has been allowed by the learned Prescribed Authority vide order dated 17.7.2013 but no order has been passed with respect to the order dated 29.11.2012. 5. This application has been rejected vide order dated 6.11.2014, filed as Annexure 1 to the writ petition, on the ground that earlier recall of the orders dated 1.9.2012 as well as 29.11.2012 was sought and that application was rejected, therefore, in case any order on the present application is being passed that will amount review of the order dated 17.7.2013. Sri Sahai has invited attention of the Court towards the order dated 17.7.2013 and submitted that the court below has neither taken note of the order dated 29.11.2012 nor passed any order to that effect, therefore, the view taken by the court below that passing of any order will amount review of the earlier order is misconceived. In his submission literarily the provisions contained under Order XXII Rule 4 of the Civil Procedure Code are not applicable but in view of sub section (4) of section 34 read with section 38 of the Act and Rule 25 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 it was incumbent upon the landlord to file a substitution application for bringing on record the heirs of late Usha Devi. 6. The Court below while passing the impugned order dated 6.11.2014 has observed that status of late Usha Devi was of a joint tenant and since other joint tenants have already filed written statement, therefore,non filing of substitution application would not be fatal. 7. Sri Sahai may be right in his submission that while passing the order dated 17.7.2013 the learned Prescribed Authority has not addressed himself on the validity of the order dated 29.11.2012 by which recall was sought but looking into the status of the petitioner as of joint tenant I am not inclined to interfere with the impugned order. 8. The writ petition is dismissed. However, in case any thing turns on this and the release application is allowed it will open for the petitioner to raise this point in appeal.