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2016 DIGILAW 1689 (ALL)

Ghoorey Lal v. Mahesh Prasad Tripathi

2016-05-03

SUNITA AGARWAL

body2016
JUDGMENT Mrs. Sunita Agarwal,J. – A copy of the judgment and order dated 25.8.1999 passed in Civil Misc. Writ Petition No.3629 of 1982 (Devi Dayal & Ors. v. IIIrd Additional District Judge, Kanpur & Ors.) supplied in the Court today is taken on record. 2. This writ petition is directed against the order dated 8.4.2016 passed in Execution Case No.7/23/2008 (Mahesh Prasad Tripathi v. Ghoorey Lal). 3. The brief facts of the case are that the release application under Section 21(1)(b) was filed by the landlord against his tenants including Sita Ram, the original tenant of the disputed accommodation which was allowed on 31.7.1981. Other tenants including Sita Ram were granted two months time to vacate the house in question. Rent Appeal No.263 of 1981 was dismissed on 5.1.1982 and the release orders were challenged in Civil Misc. Writ Petition No.3629 of 1982 (Devi Dayal & Anr. v. IIIrd Additional District Judge, Kanpur & Ors.) which was also dismissed on 25.8.1999. 4. While dismissing the writ petition filed by the tenant, the petitioners therein were directed to vacate the accommodation in question on or before 31.12.1999. It appears that Sita Ram, the original tenant did not vacate the disputed accommodation within the time fixed by this Court. The execution application was filed in the year 2008 against the petitioner herein who is in occupation and claim his right through Sita Ram, the original tenant. Before the Executing Court, objections were taken by the petitioner that the suit property did not belong to the landlord namely Mahesh Prasad Tripathi rather it was a Waqf property. 5. Another objection was taken that through sale deeds dated 24.11.2003 and 3.12.2003 the landlord namely Mahesh Prasad Tripathi had sold the suit property and as such the release order could not be executed. 6. Sri P.K. Jain, learned Senior Counsel assisted by Sri Abu Bakht learned counsel for the petitioner has placed reliance upon the judgment of this Court in 1982 ARC 747 (Smt. Dhanwanti Devi v. Sri Rama Shankar Prasad & Anr.) to submit that the right to apply for execution can only be exercised by the landlord and his transferee or assignee has no right to apply for execution of the release order. 7. Sri Iqbal Ahmad, learned counsel for the respondent on the other hand submits that the tenant had incurred liability to vacate the disputed accommodation on 31.12.1999. 7. Sri Iqbal Ahmad, learned counsel for the respondent on the other hand submits that the tenant had incurred liability to vacate the disputed accommodation on 31.12.1999. He or any persons claiming under him could not have occupied the disputed accommodation after the said date. The occupation of disputed accommodation by the petitioner is nothing but of an illegal occupant. There was not even a requirement of filing an execution case as the tenant had no right to retain possession after 31.12.1999. 8. Reliance placed by the learned counsel for the petitioner upon Smt. Dhanwanti Devi (Supra) is misplaced. 9. The facts of the case are glaring example of act of grabbing of a house by a tenant who had been evicted after contesting the proceedings. Late Sita Ram, the original tenant had contested up to this Court and lost his case that the building in question was not a dilapidated building and did not require reconstruction. These arguments were repelled by this Court with the observation that the tenant had no option but to vacate the disputed accommodation. 10. Despite a date fixed by this Court for vacation of the accommodation in question, the tenant did not vacate rather the landlord was subjected to long litigation and harassment on the part of tenant. The landlord could not get vacant possession of the premises in question and as such could not reconstruct the building which was found in dilapidated condition by the Prescribed Authority as early as in the year 1981. 11. It appears that on account of this fact the landlord got frustrated and sold his property under constraint. The petitioner who had incurred the liability for eviction in the year 1999 cannot dispute that on account of subsequent event of sale of the disputed premises by the landlord, the release is frustrated. 12. It is noteworthy that release application herein was filed under Section 21(1)(b) on the ground that the building was in dilapidated condition and was required for the purpose of demolition and new construction. It was not a case where the release order was passed on the ground of personal and individual need of the landlord. It cannot, therefore, be said that with the sale of the disputed premises, the release application does not survive or the landlord has no right to get vacant possession of the disputed accommodation. It was not a case where the release order was passed on the ground of personal and individual need of the landlord. It cannot, therefore, be said that with the sale of the disputed premises, the release application does not survive or the landlord has no right to get vacant possession of the disputed accommodation. The ratio laid down in Smt. Dhanwanti Devi (Supra) is not applicable in the facts of the present case as the release application therein was filed for the personal need of the landlord. The law laid down therein is clearly distinguishable on the facts of the present case. 13. The Apex Court in the case of Gaya Prasad v. Pradeep Shrivastava AIR 2001 SC 803 : 2001 (1) ARC 352 has held that the crucial date for determination of the lease between the parties is the date of application/petition. The fact that the premises in question was required by the landlord for the purpose of demolition and new construction has been found by the Authorities. The findings recorded by two Courts below were affirmed by this Court. 14. The tenant had incurred liability to vacate with release order that too from the date of the application. 15. There is one more aspect of the matter. Even the subsequent events occurred during the pendency of the release cannot by itself are sufficient to hold that the need had elapsed. For moulding the relief on the strength of subsequent events affecting the cause of action in Rent Control matters, a word of caution has been issued by Apex Court that Court should take cautious cognisance of such subsequent events. 16. However, in the instant case, the litigation between the parties came to an end on 31.12.1999 when the tenant was required to vacate the disputed premises. He did not obey the order of a Court of law and now he cannot take advantage of the events happened thereafter. 17. Lastly it is noteworthy that in case of a building which is released under Section 21(1)(b), the tenant can apply to the District Magistrate for re-entry within the time prescribed by the Act and request to allot him new building who may consider the application. 18. In the instant case, no such situation has arisen. The original tenant did not vacate the building and, therefore, the landlord could not raise new constructions. 18. In the instant case, no such situation has arisen. The original tenant did not vacate the building and, therefore, the landlord could not raise new constructions. He was constrained to sell the property under compelling circumstances. 19. Moreover, the original tenant namely Sita Ram was under obligation to vacate and could not have occupied the building after 31.12.1999. The petitioner who is claiming his right through Sita Ram is none other than an unauthorised illegal occupant of the building in question. 20. He has right to object the execution of release orders. His objections have rightly been rejected by the Executing Court. 21. There is no merit in this petition. 22. The Executing Court is directed to issue parwana dakhal for handing over possession to the applicant-landlord on the next date or within a period of one week thereafter. 23. With the above observations and directions, the writ petition is dismissed. Petition dismissed.