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2016 DIGILAW 3120 (ALL)

Pradeep Sharma v. Geeta Varshney

2016-09-12

PANKAJ MITHAL

body2016
JUDGMENT Pankaj Mithal, J. – Heard Sri Rajesh Kumar, learned counsel appearing for the petitioner. Sri Pramod Jain has appeared for the respondents. 2. The release application filed by the landlord respondents under Section 21(1)(a) of the U.P. Act No.13 of 1972 (hereinafter referred to as the Act) in respect of two room portion situate on the first floor of the property bearing Municipal No.13/456, Manik Chowk, Agra Road, Aligarh was allowed by the Prescribed Authority. 3. The petitioner applied for the recall of the aforesaid judgement and order on the analogy of Order 9, Rule 13 C.P.C. that the decree was passed ex parte without serving the summons upon him under Rule 22 of the Rules framed under the Act read with Section 34 of the Act. 4. The petitioner in the application filed for the recall of the alleged ex parte judgement and order dated 06.12.2014 stated that the respondents got the notice published of the release application in an unknown newspaper Dainik Rajpath on 31.05.2015. The petitioner had no notice of the said publication and that he came to know about it through one of his friends namely Yogesh Kumar, whereupon he made the inspection and applied for the recall of the judgement and order. 5. The Prescribed Authority in rejecting the above application held that the entire story built by the petitioner is false for the reason that the notice of the aforesaid case was never published in the alleged news paper Dainik Rajpath. It was rather published in news paper the Dainik Nav Samachar Patrika dated 18.08.2013. Since there was no evidence of its publication in the news paper Dainik Rajpath, the story that he acquired knowledge of it through his friend as alleged is completely false. 6. The petitioner without verifying the correct facts or the newspaper in which the notice was published filed the application by falsely alleging that it has been filed after inspection of the record. The petitioner is therefore not only guilty of negligence but is also casual and careless in filing the application. 7. The petitioner has nowhere contended that the news appear Dainik Nav Samachar Patrika in which the notice of the case was published on 18.08.2013 was not a daily news paper or the paper having good circulation in the district Aligarh. The petitioner is therefore not only guilty of negligence but is also casual and careless in filing the application. 7. The petitioner has nowhere contended that the news appear Dainik Nav Samachar Patrika in which the notice of the case was published on 18.08.2013 was not a daily news paper or the paper having good circulation in the district Aligarh. Therefore, there was no ground on which the court below could have ordered for setting aside the ex parte judgement, order and decree. 8. Learned counsel for the petitioner next argued that in view of proviso to Section 21(1)(a) of the Act, the petitioner was entitle to compensation equivalent to rent for the period of two years which has not been allowed to him. 9. The second proviso to Section 21(1)(a) of the Act is applicable where the building is let out for non-residential purposes and is ordered to be released. It is not applicable to the release of residential building. 10. In the instant case, the petitioner is a tenant of a two room portion on the first floor of the building and there is nothing on record which may establish that the said letting out was for nonresidential purpose. 11. In view of the above, as the tenancy was not in respect of a nonresidential building, the aforesaid second proviso of Section 21(1)(a) of the Act is not applicable. 12. In view of the aforesaid facts and circumstances, I find no merit in the petition and the same is dismissed with liberty to the petitioner to challenge the alleged ex parte judgement, order and decree if necessary by filing an appeal under Section 22 of the Act. 13. The petition is dismissed.