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Nafis Ahmad v. Smt. Nafis Jahan Begum And Another - WRIT - A No. 11005 of 2006 [2006] RD-AH 5108 (3 March 2006)


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Court No.4

Civil Misc. Writ Petition No.11005 of 2006

Nafis Ahmad


Smt. Nafis Jhahan Begum and another


Hon'ble Anjani Kumar, J.

Heard learned counsel for the parties.

The petitioner-tenant has approached this Court by means of this writ petition under Article 226 of the Constitution of India feeling aggrieved by an order passed by the appellate authority under the provisions of U.P. Act No.13 of 1972 (hereinafter referred to as 'the Act') whereby the appellate authority has allowed an appeal filed by the landlord against the order of the prescribed authority dated 28th February 1998.

The brief facts of the case are that respondent-landlord filed an application under section 21 (1) (a) of the Act seeking release of the accommodation in question, which is residential in nature, for his bona fide requirement. This application was rejected by the prescribed authority by order dated 28th February 1998. Aggrieved thereby the landlord preferred an appeal to the appellate authority under the provisions of section 22 of the Act. The appellate authority, during the pendency of the appeal, allowed the landlord to adduce certain evidence and on the basis of the additional evidence has found that the view taken by the prescribed authority that the need of the landlord is not bona fide is incorrect, when the tenant has not filed any evidence in rebuttal. Thus the appellate authority recorded a finding that the need of the landlord is bona fide and that the tilt of comparative hardship is also in favour of the landlord. The appellate authority , therefore, allowed the appeal, set aside the order passed by the prescribed authority and allowed the application filed by the landlord under Section 21 (1) (a) of the Act for release of the accommodation in his favour. Thus this writ petition.

Before this Court, in this writ petition, learned counsel for the petitioner has argued that the appellate authority has not afforded any opportunity to adduce additional evidence in rebuttal when the appellate authority accepted additional evidence on behalf of the landlord. Learned counsel has failed to demonstrate that this statement is correct. He has neither annexed the order sheet nor has stated as to on what date additional evidence was allowed by the appellate authority and his counsel was not present there. It is then contended by learned counsel for the petitioner that the prescribed authority ought to have considered the question of part release which he did not consider. Learned counsel appearing for the respondent has argued that this question has not been raised before the appellate authority, thus the petitioner cannot be permitted to raise this question at this stage. Learned counsel for the petitioner has relied upon a decision of this Court that even without raising this question it was incumbent on the part of the appellate authority to have considered this question. Since the present accommodation is a residential accommodation the question of part release does not arise unless it is specifically raised. In these circumstances, in my opinion, the appellate authority has committed no error in not considering the question of part release.

No other point has been argued.

In view of what has been stated above this writ petition has no force and is accordingly dismissed.

Dt: 3.3.2006.



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