Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 3505 (ALL)

Saryu Prasad Varma v. Addll. Distt. Judge Court No. 1 Lakhimpur Kheri

2014-11-25

MAHENDRA DAYAL

body2014
JUDGMENT Mahendra Dayal,J. The petitioner by means of the instant writ petition under Article 226 of the Constitution of India has prayed for quashing of the orders dated 24.04.2013 passed by the Additional Civil Judge (Senior Division), Court No.2, Lakhimpur Kheri, whereby his application under Order VII Rule 11 C.P.C. was rejected and the judgment and the order dated 13.08.2014 passed by the Additional District Judge, Court No.1, Lakhimpur Kheri, whereby the revision filed against the order passed by the learned Lower Court was dismissed. 2. Since the counter and rejoinder affidavits have been exchanged between the parties, the writ petition is being disposed of finally with the consent of the learned counsel for the parties at the admission stage. 3. The brief facts relevant for disposal of this case are that the opposite parties no.3 to 6 being owner and landlord of the shops in question filed an application for release on 25.01.2008 before the Prescribed Authority/Civil Judge (Senior Division), Lakhimpur Kheri. A joint release application was filed by the opposite parties no.3 to 6 for release of three shops against the tenants, namely, Kishan Lal, Devendra Pal Singh and Dr. Vijai Prakash. 4. One of the tenants, namely, Dr. Vijai Prakash filed his written statement on 09.07.2008 stating therein that his uncle Dr. Saryu Prasad Varma (Petitioner) is the tenant of the shop in question and Dr. Vijai Prakash has never been tenant of the said shop. The opposite parties no.3 to 6 then applied for impleadment of the petitioner which was allowed and the petitioner was impleaded as one of the opposite parties in the release case. The petitioner submitted his written statement on 19.09.2009 admitting himself to be the tenant of one of the shops in question for the last about 30 years. The tenant of the other two shops, namely, Kishan Lal and Devendra Pal Singh entered into compromise with the opposite parties no.3 to 6 and vacated their shops. After the evidence of the parties and submission of written arguments by both the parties, the opposite parties no.3 to 6 again applied for amendment of their release application and by way of third amendment the name of Dr. Vijai Prakash was deleted. After the evidence of the parties and submission of written arguments by both the parties, the opposite parties no.3 to 6 again applied for amendment of their release application and by way of third amendment the name of Dr. Vijai Prakash was deleted. Feeling aggrieved by the order passed on the third amendment application, the petitioner preferred Writ Petition No.37 of 2014 before this Hon'ble Court which was disposed of by the judgment and order dated 12.03.2014. This Hon'ble Court while disposing of the writ petition provided that in case the Prescribed Authority decides the case against the petitioner and occasion arises to challenge the same, it would be upon for him to press all the grounds that have been taken in the writ petition assailing the order impugned. The petitioner, in the meantime, moved an application on 17.05.2012 under Order VII Rule 11 C.P.C. for rejection of the release application on the ground that the opposite parties no.3 to 6 tried to forcibly evict the petitioner and take forceful possession of the shop in question, therefore, the petitioner filed a Regular Suit No.407 of 2003 in the Court of Additional Civil Judge (Junior Division), Lakhimpur Kheri and the petitioner also started depositing the rent in the said court under Section 30 of U.P. Act No.13 of 1972 and as such the petitioner is not a defaulter. It was further alleged in the said application that knowing the entire facts the opposite parties no.3 to 6 did not implead the petitioner as party in the application for release initially, but when Dr. Vijai Prakash appeared and stated that he was not the tenant of any shop, the opposite party no.3 to 6 filed an application for impleadment and impleaded the petitioner as opposite party. The petitioner also took a ground in the application under Order VII Rule 11 C.P.C. that the opposite parties no.3 to 6 have not served the statutory notice upon him as required under Section 21 of U.P. Act No.13 of 1972 and as such the release application was not maintainable and was liable to be rejected on this score.The petitioner also took a ground that a single release application in respect of three different tenants was not maintainable. This application was rejected by the opposite party no.2 by means of the impugned order dated 24.04.2013. This application was rejected by the opposite party no.2 by means of the impugned order dated 24.04.2013. The main ground for rejection of application was that under Section 34 of the Act only some of the provisions of the Court of Civil Procedure have been made applicable to the proceedings under the Rent Control Act. The provision of Order VII Rule 11 C.P.C. has not been made applicable to any of the proceedings under the Rent Control Act. Feeling aggrieved by this order, the petitioner preferred a revision before the District Judge Lakhimpur Kheri which was heard and dismissed by the Additional District Judge, Court No.1, by the judgment and order dated 13.08.2014 on the ground that a revision against the aforesaid order was not maintainable. 5. I have heard learned counsel for the parties and have gone through the pleadings of the parties. 6. Learned counsel for the petitioner has submitted that the opposite parties no.3 to 6 fully knowing that the petitioner was the tenant in one of the shops, did not implead him at the time of filing of the release application, but impleaded Dr. Vijai Prakash as one of the opposite parties. Since the petitioner had filed the injunction suit and had also preferred an application for depositing of rent under Section 30 of the Act, the opposite parties no.3 to 6 were fully aware of the fact that the petitioner was the tenant, but with some ulterior motive the petitioner was not impleaded. When Dr. Vijai Prakash appeared and filed his written statement denying has status as tenant clearly stating therein that the petitioner was the tenant, the opposite parties no.3 to 6 applied for impleadment of the petitioner and the same was allowed. 7. Learned counsel also submits that under Section 34 and Rule 22 framed under the Act, certain provisions of the C.P.C. specified therein have been made applicable to the proceedings under the Rent Control Act and the provision of impleadment has not been made applicable to any of the proceedings under the Rent Control Act. Learned Prescribed Authority ignoring the provisions of Section 34 and Rule 22, allowed the impleadment application which is against the law. 8. Learned Prescribed Authority ignoring the provisions of Section 34 and Rule 22, allowed the impleadment application which is against the law. 8. Learned counsel further submits that the provisions of Section 151 and 152 have been made applicable to the proceedings under the Rent Control Act which provide that to meet the ends of justice and to prevent the abuse of the process of law, the Court can pass any order which it deems fit and necessary. If the Court has inherent power to implead a person as opposite party without there being any provision for impleadment, the Court also has an inherent power to ascertain as to whether the release application is legally maintainable or not. The provisions of Order VII Rule 11 specifically provide that in case the plaint does not disclose a cause of action or is barred by any provision of law, the plaint shall be rejected. Since the application for release under Section 21 of the Act is in the nature of plaint, the Prescribed Authority is under an obligation to ascertain that the release application is maintainable under law. Section 21 of the Act provides that in case the building is under occupation of a tenant since before its purchase, the landlord can not apply for release unless a period of three years has elapsed from the date of purchase and six months notice is given to the tenant. In this case although the release application was moved after three years from the date of purchase, but no notice as legally required was ever served upon the petitioner. For this reason, the release application was not maintainable and the learned Prescribed Authority ought to have rejected the same applying the provisions of Order VII Rule 11 C.P.C.. Even if, the provisions of Order VII Rule 11 C.P.C. have not been specifically made applicable to the proceedings of Rent Control Act, the Court has an inherent power to pass any order to prevent the abuse of the process of law. The release application has been filed against the petitioner without complying with the provisions of serving a statutory notice, the release application itself is, therefore, not maintainable, but the learned Prescribed Authority rejected the application simply on the ground that the provision of Order VII Rule 11 C.P.C. is not applicable to the proceedings under the Rent Control Act. 9. The release application has been filed against the petitioner without complying with the provisions of serving a statutory notice, the release application itself is, therefore, not maintainable, but the learned Prescribed Authority rejected the application simply on the ground that the provision of Order VII Rule 11 C.P.C. is not applicable to the proceedings under the Rent Control Act. 9. Learned counsel appearing on behalf of the contesting opposite parties no.3 to 6 has submitted that the learned Prescribed Authority while passing the impugned order dated 24.04.2013 has clearly observed that under Section 34 of the Act, the provisions of Order VII Rule 11 C.P.C. have not been made applicable to the proceedings of the Rent Control Act. Moreover, the filing of release application does not require any cause of action to be pleaded in the application because there is no limitation prescribed for filing of the release application. The landlord may any time file an application for release against his tenant. He further submits that the provisions of Order VII Rule 11 C.P.C. are applicable only in respect of plaint while the application for release is not covered under the definition of plaint as provided in the Code of Civil Procedure. The U.P. Act No.13 of 1972 is an special Act which over-rides all other Acts and that is why only certain provisions of Code of Civil Procedure have been made applicable to the proceedings under the Rent Control Act. The powers under Section 151 i.e. the inherent power of the Court can be exercised by a Court to prevent the abuse of the process of law only in those cases, where there is no specific provision under the Code. It is a settled law that when there is a specific provision under the Code, the recourse of Section 151 C.P.C. can not be taken. 10. So far as the impleadment of the petitioner is concerned, the submission on behalf of the opposite parties no.3 to 6 is that the petitioner has already availed as his remedy of filing a writ petition before this Hon'ble Court against the order of his impleadment, but the same was refused by this Hon'ble Court. However, the petitioner has been given an option to raise the objection of impleadment, in case the release application is decided against him and the occasion arises for the petitioner to challenge the order of release. 11. However, the petitioner has been given an option to raise the objection of impleadment, in case the release application is decided against him and the occasion arises for the petitioner to challenge the order of release. 11. Learned counsel for the opposite parties no.3 to 6 has relied upon a decision of this Hon'ble Court reported in 1989 ALR 792 Ratan Marwari Vs. IIIrd Addl. Sessions Judge, Moradabad and others, in this case, a Coordinate Bench of this Court has held that the release application against two tenants in respect of two different shops is maintainable. He further submits that rest of the two tenants have already vacated the shop after a compromise and presently the application for release is only against the petitioner. 12. After hearing learned counsel for the parties and going through their pleadings, I find that the order passed on the application for impleadment of the petitioner was challenged before this Hon'ble Court and without interfering in the order, this Hon'ble Court kept it open for the petitioner to raise such objection, in case release application is decided against the petitioner and an occasion arises for him to challenge the release order. Thus, the matter relating to the impleadment of the petitioner can not be looked into again in this writ petition. 13. So far as the applicability of the provisions of Order VII Rule 11 C.P.C. is concerned, it is not disputed that under Section 34 and Rule 22 of the Act, the provisions of Order VII Rule 11 C.P.C. have not been made specifically applicable to the proceedings under the Rent Control Act. In my view, the provisions of Order VII Rule 11 C.P.C. apply only in respect of plaint, where under Order VII itself it is provided as to what the plaint should contain. It is mandatory in the case of filing of the plaint that valuation, jurisdiction and cause of action should be specifically pleaded. In case of release application, there is no statutory requirement to plead or disclose the cause of action because landlord can file release application any time against his tenant. 14. So far as the maintainability of the release application for want of statutory notice is concerned, it is still open for the Prescribed Authority to look into this controversy and decide the same while deciding the release application. 14. So far as the maintainability of the release application for want of statutory notice is concerned, it is still open for the Prescribed Authority to look into this controversy and decide the same while deciding the release application. It has been submitted by the learned counsel for the parties that the release application is now fixed for final argument and the written submissions have already been submitted by the parties. It is, therefore, open for the Prescribed Authority to consider all the objections raised by the petitioner. 15. In view of what has been discussed above, I do not find any sufficient ground to interfere with the orders impugned in this writ petition. The Prescribed Authority is fully competent and empowered to consider the objections raised by the petitioner with respect to maintainability of the release application for want of notice, payment of prescribed court fee and the maintainability of the release application. 16. The writ petition is, therefore, finally disposed of with the direction that the learned Prescribed Authority shall consider the maintainability of the release application for want of statutory notice, and other objections raised on behalf of the petitioner at the time of final disposal of the release application. 17. The writ petition is, accordingly, disposed of.