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2016 DIGILAW 1620 (ALL)

Mohd. Haleem (Since Deceased) v. Abdul Rasheed

2016-04-28

SUNITA AGARWAL

body2016
JUDGMENT Mrs. Sunita Agarwal, J. – Heard learned counsel for the petitioners. 2. In view of the order being passed hereinafter, this Court thinks that there is no need to issue notice to the respondents at this stage. However liberty is granted to the respondent-landlord to apply for recall of this order if he thinks that he is prejudiced by this order. 3. By means of the present writ petition, the order dated 14.4.2016 passed by Additional District Judge, Court No. 4, Kanpur Nagar in Rent Appeal No.17 of 2013, Mohd. Haleem v. Abdul Rasheed And Others on application Paper No.41Ga filed by the petitioner-appellant is under challenge. 4. It appears that the release application was filed under Section 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act No.13 of 1972 (hereinafter referred to as the 'Act') in favour of the applicant-landlord. The release application was allowed vide order dated 12.2.2013 and the appeal under Section 22 of the Act was filed thereafter. 5. During the pendency of the appeal, a registered sale deed dated 4.6.2015 was executed by the co-sharers of the house in question in favour of the petitioner-appellant. To bring this fact on record, the application Paper No. 41Ga was filed by the petitioner with the assertion that now with the execution of the sale deed, he became coowner of the house in question and the release cannot proceed. This application was rejected by the order impugned on the ground that the tenant's application is an effort to delay the disposal of the Appeal. This Court had issued a direction to the Appellate Court to decide the Appeal in a time bound manner. 6. The submission of the learned counsel for the petitioner is that the Appellate Authority cannot refuse to take into account the subsequent event which occurred during the pendency of the appeal. It was required to examine the merits of the claim of the applicant/tenant regarding the change of nature of his occupation. The application could not have been rejected without application of mind by the Appellate Court simply on the ground that it was filed with a view to delay the disposal of the appeal. 7. It was required to examine the merits of the claim of the applicant/tenant regarding the change of nature of his occupation. The application could not have been rejected without application of mind by the Appellate Court simply on the ground that it was filed with a view to delay the disposal of the appeal. 7. After perusal of the order passed by the Court below in appeal, it appears that the application Paper No.41Ga was rejected on the ground that it was filed to fill the lacuna in the defence taken by the petitioner before the Court below and such additional evidence was not admissible under Order 41, Rule 27 C.P.C. in appeal. Further, the reason given is that the said application has been filed with the view to delay the disposal of the suit. 8. Be that as it may, without entering into the merits of the claim of the petitioner, this Court is of the view that the subsequent event occurred during the pendency of the appeal ought to have been taken into consideration by the Appellate Court and a finding on this issue necessarily has to be arrived after appreciation of the documents on record. 9. As this has not been done, the order dated 14.4.2016 passed by Additional District Judge, Court No. 4, Kanpur Nagar in Rent Appeal No.17 of 2013, Mohd. Haleem v. Abdul Rasheed And Others cannot be sustained. 10. The Court below is directed to accept the affidavit 41Ga on record and further to provide an opportunity to the landlord to rebut the assertions made therein. 11. It goes without saying that the Appellate Court shall make an endeavour to decide the appeal expeditiously preferably within a further period of four months as per the earlier directions dated 19.11.2014 of this Court without granting any unnecessary adjournment to the petitioner. 12. It is made clear that in case any such adjournment is sought by the petitioner heavy cost shall be imposed by the Court below. 13. With the above observations and directions, this writ petition is disposed of. Petition disposed of.