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2018 DIGILAW 1038 (ALL)

Narayan Mahrotra v. Additional District Judge-15

2018-04-26

SANGEETA CHANDRA

body2018
JUDGMENT : Sangeeta Chandra, J. Supplementary affidavit filed today is taken on record. 2. This petition has been filed praying for quashing of the order dated 19.1.2018 passed by the learned Additional District Judge, Court No. 15, Kanpur Nagar in Rent Control Appeal No. 51 of 2016 (Shri Narain Mehrotra Vs. Rajesh Kumar Gupta) and also to set aside the order dated 6.4.2018 by which the Recall Application of the petitioner has been rejected, with a further direction to the learned Additional District Judge to decide the Application No. 60-C dated 19.1.2018 filed by the petitioner afresh after inviting objections from the respondent no. 2. 3. The case set up by the learned counsel for the petitioner/tenant is that the petitioner is a tenant of a portion of ground floor of house No. G-9, Shanti Nagar, Kanpur Nagar. The aforesaid house was under the ownership of late Kishori Devi and after her, the house was inherited by her legal heirs and they became joint owners of the aforesaid house. 4. After the death of late Kishori Devi, Vijay Kumar Gupta, who is the elder son collected rent from the petitioner till August 2013 and therefore the landlord/tenant relationship was between the petitioner and Shri Vijay Kumar Gupta. 5. The respondent no. 2 - Rajesh Kumar Gupta filed a Release Application No. 19 of 2013 under Section 21(1)(a) of the U.P. Act No. 13 of 1972. The petitioner filed his objections that there was no evidence available on record that respondent no.2 was the landlord and he had ever demanded rent on the basis of such ownership of the portion of house in which the petitioner/tenant lived. The Prescribed Authority allowed the Release Application on 4.5.2016 which was challenged in Rent Control Appeal No. 51 of 2016. 6. The petitioner/tenant filed an application for interim relief which was initially allowed, but later on, interim protection was not extended and the petitioner filed Misc. Petition No. 1042 of 2017 before this Court. This Court disposed of the aforesaid Writ Petition by its order dated 20.2.2017 directing that the application for interim protection should be decided first so that the Appeal may not be rendered infructuous. 7. Petition No. 1042 of 2017 before this Court. This Court disposed of the aforesaid Writ Petition by its order dated 20.2.2017 directing that the application for interim protection should be decided first so that the Appeal may not be rendered infructuous. 7. It is the case of the petitioner that this order dated 20.2.2017 passed in writ petition filed by the petitioner does not in any manner set out a time frame for deciding the Rent Control Appeal No. 51 of 2016, but has been misinterpreted by the learned Appellate Court so that he is rejecting all applications made by the appellant only on the ground that the High Court has set a time limit for deciding the Appeal and the petitioner/tenant is adopting delaying tactics. 8. Learned counsel for the petitioner has made certain allegations of personal bias and malafide on the part of the respondent no. 1 in paragraphs 18 & 19 of the petition which this Court does not feel it appropriate to refer to at this stage. 9. The allegation of the learned counsel for the petitioner is that the application for interrogatories has been rejected on the same day without calling for objections which have raised a reasonable apprehension of bias in the mind of the appellant and also that when the Recall Application was filed again the Appellate Court has rejected the said application by its order dated 6.4.2018 and fixed the date for delivery of judgment on 28.4.2018. He cannot even file a transfer application at this stage as the judgment has already been reserved. 10. In the supplementary affidavit filed by the petitioner, the Application Paper No. 60-C relating to interrogatories has also been filed. 11. I have perused the application. I find that the questions mentioned therein are such that could have been asked in cross-examination of the respondent no. 2. 12. From a perusal of the order of the Prescribed Authority, it is evident that no oral statement was taken of the landlord or of the tenant only affidavits were filed by the respondent no. 2 and his brother and affidavit was filed by the petitioner/tenant. 13. The Appellate Authority has observed that it is not the duty of the Appellate Authority to collect evidence at appellate stage. 2 and his brother and affidavit was filed by the petitioner/tenant. 13. The Appellate Authority has observed that it is not the duty of the Appellate Authority to collect evidence at appellate stage. This Court feels it is a wrong appreciation of the jurisdiction exercise by the Appellate Authority which is a Court of facts as well as of law and it can be deal with a question of fact, as much as a question of law. Certain facts were needed to be properly ascertained with regard the landlord and tenant relationship and therefore the interrogatories were filed. 14. The order dated 19.1.2018 rejecting the application only on this ground that the first Appellate Court is not supposed to collect evidence and that this Court had fixed a time limit for deciding the Appeal. This observation being perverse is liable to be set aside. It is hence set aside. 15. The order passed on the application for Recall dated 6.4.2018 is also set aside. 16. The matter is remanded to the Appellate Court to decide the Application No.60-C filed by the petitioner/tenant on 19.1.2018 afresh and then proceed to decide the Appeal as expeditiously as possible say within a period of three month from the date a certified copy of this order is produced before the Appellate Court. 17. The writ petition is allowed to this extent.