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2015 DIGILAW 1887 (ALL)

Rajeev Kumar v. Prescribed Authority

2015-07-13

SUNITA AGARWAL

body2015
JUDGMENT Mrs. Sunita Agarwal, J. Supplementary affidavit filed today be taken on record. 2. Heard Shri Kshitij Shailendra, learned counsel for the petitioners and Shri Ashutosh, learned counsel for respondent no.2 landlord. 3. The facts of the case reflect glaring misuse of the legal proceedings by the petitioners, who claim to be in possession of the shop in dispute. 4. Admitted fact of the case is that there are three shops in the premises in question. There were three tenants of the aforesaid shops, jointly owned by Dinesh Chandra Agarwal and Mahesh Chandra Agarwal sons of Om Prakash Agarwal, resident of Mohalla Sahu Street, District Moradabad. Respondent no.2 Dinesh Chandra Agarwal filed P.A. case no 2 of 1997 under section 21(1) (a) of U.P. Act No. 13 of 1972 against Shanker Lal, respondent no.4 in respect of the shop in his possession as one of the tenant.The release application under section 21 (1) (a) of U.P. Act no. 13 of 1972 filed by Dinesh Chandra Agarwal shows that he has set up his need for opening Brassware showroom. A compromise has been arrived between Dinesh Chandra Agarwal and Shanker Lal/ tenant , which was filed before the Prescribed Authority and the release application was decided on 5.2.1997. The decree of eviction was passed with a direction to vacate the shop within one week. 5. In the meantime P.A. Case no. 36 of 1998 for the shop in tenancy of late Munni Lal, father of the petitioners was filed by brother of Dinesh Chandra Agarwal, namely, Mahesh Chandra Agarwal who was co-owner of the premises in question. The premises in question was purchased by both the brothers on 1.9.1994. The need set up by Mahesh Chandra Agarwal in the release application of the year 1998 is to establish his son in Brassware business. 6. It is stated in the writ petition that a compromise has been arrived between Mahesh Chandra Agarwal and late Munni Lal, father of the petitioners , which is filed as annexure-4 of the writ petition and was filed in P.A. Case No. 36 of 1998. 7. Perusal of the photocopy of the compromise alleged to have been filed in P.A Case no 36 of 1998 shows that the said document is undated. Nothing has been stated in paragraph-10 of the writ petition regarding the date of filing of the compromise in the release application. 7. Perusal of the photocopy of the compromise alleged to have been filed in P.A Case no 36 of 1998 shows that the said document is undated. Nothing has been stated in paragraph-10 of the writ petition regarding the date of filing of the compromise in the release application. The contention of the learned counsel for the petitioner is that in terms of the compromise late Munni Lal his father had vacated the shop which was in his tenancy and occupied another shop vacated by Shanker Lal, which was released for the need of Dinesh Chandra Agarwal in release application no. 2 of 1997.The P.A. Case No. 36 of 1998 was not pursued by Mahesh Chandra Agarwal and is lying dismissed for non-prosecution. 8. It appears that the landlord Dinesh Chandra Agarwal has filed execution application in the year 2008 which was registered as Misc. P.A. case no. 14 of 2008 against Shanker Lal.The execution proceedings were contested by the petitioner on the plea that they had occupied the shop which was vacated by Shanker Lal under a compromise with Mahesh Chandra Agarwal, in another release application no. 36 of 1998. 9. An application No. 76-C for cross-examination of Dinesh Chandra Agarwal was filed in Misc. P.A. Case no. 14 of 2008(Dinesh Chandra Agarwal Vs. Shanker Lal.) The said application was rejected on 12.5.2010 by the Prescribed Authority.Challenging the order passed by the Prescribed Authority a writ petition no. 30137 of 2010 was filed by the petitioners, which was dismissed on 7.11.2013. This court had observed that two separate release applications were filed by two brothers for their own need. It was observed by this court that the petitioners' application seeking cross examination of Dinesh Chandra Agarwal in the execution case no 14 of 2008 was not maintainable as he was not a party to the release application.However while disposing of the writ petition this court has observed that in case the petitioners file objection in the execution case, same may be considered and independent order shall be passed by the court below. 10. On the strength of this observation of the Court, petitioners pressed their application 23(C) for dropping the execution proceedings. The application was rejected by order dated 9.3.2015., which was challenged in writ petition No. 15410 of 2015. 10. On the strength of this observation of the Court, petitioners pressed their application 23(C) for dropping the execution proceedings. The application was rejected by order dated 9.3.2015., which was challenged in writ petition No. 15410 of 2015. This court while dismissing the writ petition has taken into consideration the order passed by this court in the earlier writ petition no. 30137 of 2010 and had observed that finding has been recorded by the Prescribed Authority while rejecting the application 23C that there is nothing on record to substantiate the alleged compromise.Moreover the execution case was filed by Dinesh Chandra Agarwal, who was not a party to P.A. Case No. 36 of 2008 as such he has no concern with the compromise and arrangement, if any, made by the petitioner and the co-owner. 11. After dismissal of the second writ petition on 22.5.2015, the petitioners filed another application under Order XXI Rule 9 C.P.C. on 3.7.2015 for obstructing the proceedings for possession of the shop by the landlord which was earlier occupied by Shanker Lal. 12. The facts of the case reflect that the petitioners had filed one application after another for resisting the occupation of the landlord, in pursuance of the order passed by the Prescribed Authority. There is nothing on record to suggest that the petitioners had occupied the shop in question under any compromise arrived between them and Dinesh Chandra Agarwal, for whose bonafide need, the shop in question was released as early as in the year 1997. 13. The present writ petition is directed against order dated 3.7.2015 refusing to stay the proceedings of execution case on the pretext of pendency of the application under Order XXI Rule 97 . Next date 15.7.2015 is fixed for disposal of the application under Order XXI Rule 97 CPC. It is apparent from the record that the petitioners have no right to the shop in question, which was occupied by Shanker Lal against whom a decree of eviction was passed in the year 1997. However, in view of the pendency of the application under Order XXI Rule 97 C.P.C. before the court below,this Court desist from making any further observation on the merit of the application. 14. Learned counsel for the petitioners submits that by another order dated 3.7.2015 'Parwana Dhakal' has been issued by the Prescribed Authority to dispossess the petitioners from the shop in question. 14. Learned counsel for the petitioners submits that by another order dated 3.7.2015 'Parwana Dhakal' has been issued by the Prescribed Authority to dispossess the petitioners from the shop in question. Once it is held that the petitioners have no legal right to occupy the shop in question,no interference is required in the order dated 3.7.2015. 15. The writ petition is dismissed being devoid of merit. 16. However, the Prescribed Authority is hereby directed to decide the matter on 15.7.2015 itself without granting any adjournment to either of the parties . In case the petitioners seek an adjournment an exemplary cost shall be imposed upon them and the matter shall be proceeded exparte in case the petitioners refuse to participate in the proceedings.