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Hari Narayan Agarwal v. Smt. Chandra Prabhu And Others - WRIT - A No. - 40536 of 2007 [2007] RD-AH 15306 (11 September 2007)

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Court No.07

Civil Misc. Writ Petition No.40536 of 2007

Hari Narayan Agarwal Vs. Smt. Chandra Prabha and others

Hon'ble S.U. Khan, J.

Heard learned counsel for the parties. Learned counsel for the landlord respondents, who has appeared through caveat, has advanced arguments without seeking time to file counter affidavit.

Release application under Section 21 of U.P. Act No.13 of 1972 filed by landlord respondents against tenant petitioner, which was registered as Rent Case No.16 of 2001 was allowed on 04.03.2004 by Prescribed Authority/ A.C.M.M. IV, Kanpur Nagar. Against the said order tenant petitioner filed Rent Appeal No.25 of 2004. The said appeal has been dismissed on 21.05.2007 by A.D.J., Court No.1, Kanpur Nagar, hence this writ petition. The Appellate Court has mentioned in its judgment at one place as follows:

"I have heard the learned counsel for the respondents on 18.05.2007 as none appeared on behalf of the appellant and the case was fixed for judgment for today, i.e. 21.05.2007 with the observation that in the meantime, the appellant may place arguments either today or tomorrow."

If on the date fixed for hearing of the appeal, appellant does not appear, then the Court has got no jurisdiction to dismiss the appeal on merit. The appellate court has dismissed the appeal on merit. It could dismiss the appeal only in default. Learned counsel for the respondents has argued that on 17.05.2007 in the presence of appellant, 18.05.2007 was fixed as the next date on the said date tenant did not appear. I am not inclined to decide this question in detail for the reason that impugned order has to be set aside on the ground that appeal has been dismissed on merit in the absence of appellant, which was not permissible. Moreover, learned counsel for the petitioner states that as the judgment is on merit, hence his client thought that restoration application would not be maintainable. Even though restoration application was quite maintainable, however permitting the petitioner to file restoration application would further delay the proceedings.

Accordingly, impugned order passed by the appellate Court is set aside on payment of Rs.10,000/- as cost. Both the parties are directed to appear before the appellate court on 25.10.2007. On the said date, cost shall be deposited. If the cost is deposited, then some nearby date must be fixed for hearing the appeal and appeal must be heard on merit. It is further directed that no unnecessary adjournment shall be granted to any party. If any adjournment is to be granted to any of the parties, then the same shall be granted on very heavy cost, which shall not be less than Rs.500/- per adjournment. All efforts must be made to decide the appeal within four months from date of deposit of Rs.10,000/- as cost. If the amount of Rs.10,000/- awarded as cost is not deposited by 25.10.2007, then this order shall stand automatically vacated and writ petition shall be deemed to have been dismissed.

During pendency of appeal, eviction of the tenant appellant shall remain stayed provided that w.e.f. September, 2007 onwards he deposits rent/ damages for use and occupation before the Appellate Court @ Rs.1,000/- per month for immediate payment to the landlord respondent.

In case of two defaults stay order shall stand automatically vacated and tenant should be evicted forthwith.

This direction is being issued in view of the Supreme Court authority of Atma Ram Properties Vs. Federal Motors, 2005 (1) SCC 705.

It has been stated that the suit for eviction has also been filed by the landlord. The amount of Rs.1,000/- deposited under this order before the appellate court shall be taken into consideration by the court, which is hearing the suit.

Writ petition is accordingly disposed of.




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