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Kishan Charan Mishra v. Praveen Kumar Jain And Another - WRIT - A No. 13765 of 2001 [2006] RD-AH 4181 (22 February 2006)


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Court No. 4

Civil Misc. Writ Petition No. 13765 Of 2001.

Kishan Charan Mishra


Praveen Kumalr Jain and another


Hon'ble Anjani Kumar, J.

The petitioner-tenant of the accommodation in dispute, while contesting the suit filed by the landlord for eviction and arrears of rent, has taken up a specific plea that provisions of U.P. Act No.13 of 1972 (hereinafter referred to as 'the Act') are applicable to the accommodation in dispute, even assuming that the landlord is a trust, since it is not a public charitable trust it cannot be exempted from the provisions of the Act, as contemplated under Section 2 (1)(bb) of 'the Act'. An application was filed by the petitioner-tenant before the trial court that since the provisions of the Act are not applicable, therefore, the suit should have been tried on regular side and the court of Judge Small Causes shall have no jurisdiction. From the order impugned in the writ petition it appears that the court has proceeded on the assumption that the provisions of the Act are not applicable and then it proceeded to hold that even the provisions of the Act do not apply yet the suit is cognizable by Judge Small Causes and rejected the application. The trial Court without adjudicating on the question as to whether the provisions of 'the Act' are applicable or not has proceeded on the assumption as stated above.  Thus this writ petition.

There is no dispute that in either case, namely, the case set up by the petitioner and that of the case set up by the respondent, the suit is cognizable by Judge Small Causes but as the trial court held that the suit is maintainable even if the Act is not applicable, this question will arise in the present case that first it is to be decided as to whether the provisions of U.P. Act No.13 of 1972 are applicable to the premises in question. That having not done, to me it appears, that the order dated 18th January 2001 deserves to be quashed and is hereby quashed. The matter is remanded to the trial court with the direction to decide the issue of applicability of U.P. Act No.13 of 1972 along with all other issues. Since the matter is fairly old the trial court is directed to decide the suit within a period of six months from the date of production of a certified copy of this order.

The writ petition is allowed.

Dt: 22.2.2006.



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