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Ram Swarop Ghosi v. Iind A.D.J. - WRIT - A No. 10777 of 1992 [2006] RD-AH 6082 (20 March 2006)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


(Court No.51)

Civil Misc. Writ Petition No.10777 of 1992

Ram Swaroop Ghosi  Vs.  IInd Additional District Judge, Agra and another


This is tenant's writ petition.  Property in dispute is a shop situate in Agra.  Rent is either Rs.37/- or Rs.50/- per month (according to the learned counsel for the  landlord it is Rs.37/- and according to the learned counsel for the tenant it is Rs.50/-).  Landlord respondent no.2 - Kunj Behari Dubey filed release application under Section 21 of U.P. Act No.13 of 1972 on the ground of bonafide need against tenant-petitioner in the form of P.A. case no.82 of 1979.  Prescribed authority/Munsif, Fatehabad, Agra through judgment and order dated 31.8.1984 dismissed the release application.  Against the said judgment and order landlord-respondent filed R.C. appeal no.38 of 1984.  In the appeal tenant was served through refusal.  Appellant's arguments in appeal were heard on 2.2.1989 and 7.2.1989 was fixed for delivery of judgment.  The said date was adjourned to 8.2.1989.  On 8.2.1989 tenant filed an application stating therein that he was not aware of pendency of appeal and he might be provided opportunity to contest the appeal.  The said Application was rejected and on 8.2.1989 appeal was allowed.  Thereafter on 13.3.1989 tenant-petitioner filed restoration/rehearing application. The said application was rejected by IInd Additional District Judge, Agra on 27.7.1991.  One of the grounds taken by the appellate court to reject the application was that Shri S.C.Gupta, learned counsel did not file his own affidavit.  In the re-hearing application it had been stated that Shri S.C.Gupta, learned counsel who was representing the tenant before Prescribed authority came to know on 7.2.1989 that the said appeal was pending and he informed the tenant.  Normally Advocates did not file their own affidavit in the cases of their clients.  There was few days delay, which according to the tenant had been caused due to strike.  Appellate court refused even to condone the delay in filing the restoration application.

In the matter of restoration some leniency is required.  Tenant had been served through refusal.  It was not proper to reject the restoration application on the ground that Advocate did not file his affidavit.

Accordingly, writ petition is allowed.  Judgment and order dated 27.7.1991 rejecting the restoration/re-hearing application of the tenant is set aside.  Restoration application is allowed on payment of Rs.10,000/- as cost payable within two months.  Consequently judgment and order dated 8.2.1989 passed by IInd A.D.J., Agra allowing R.C. appeal no. 38 of 1984 is also set aside.  Appeal is restored on its original number and the appellate court is directed to decide the appeal before the end of the year. Both the parties are directed to appear before the IInd Additional District Judge, Agra on 18.5.2006.  On the said date the aforesaid cost of Rs.10,000/- shall be paid by the landlord to the tenant before the IInd Additional District Judge, Agra or any other court where matter may be sent by the District Judge, Agra.

I have held in Khursheeda Vs. A.D.J. 2004 (2) A.R.C. 64 that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act, writ court is empowered to enhance the rent to a reasonable extent. Even otherwise writ court is empowered to pass such consequential order as is necessary to adjust the equities in between the parties while finally deciding the writ petition.  Property in dispute is a shop situate in Agra which is one of five most expensive cities of Uttar Pradesh. Rent of Rs.37/- or Rs.50/- per month is virtually as well actually no rent.  Accordingly, it is directed that irrespective of result of appeal tenant shall pay rent to the landlord at the rate of Rs.1,800/- per month  with effect from April- 2006 onward inclusive of water tax etc.  No further amount over and above Rs.1,800/- shall be payable by the tenants.




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