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Prabhu Dayal v. Mohd. Naieem - WRIT - A No. - 33635 of 2003 [2007] RD-AH 16497 (9 October 2007)

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Court No.07

Civil Misc. Writ Petition No.33635 of 2007

Prabhu Dayal Vs. Mohd. Naieem

Hon'ble S.U. Khan, J.

Heard learned counsel for the parties.

This is landlord's writ petition arising out eviction/ release proceedings initiated by him against tenant respondent on the ground bona fide need under Section 21 of U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 in the form of P.A. Case No.07 of 1997. Property in dispute is a shop. Prescribed Authority, Kalpi, District Jalaun allowed the release application through judgment and order dated 16.12.2000 deciding the questions of bona fide need and comparative hardship in favour of the landlord. Against the said judgment and order, tenant respondent filed Rent Control Appeal No.01 of 2001. Appeal has been allowed by A.D.J./ F.T.C. 11, Jalaun at Urai through judgment and order dated 09.05.2003. The said judgment and order passed by the Appellate Court has been challenged through this writ petition.

The first point on which appeal was allowed was that the Presiding Officer, who decided the appeal, described himelf as Civil Judge (Junior Division), Kalpi and not as Prescribed Authority, Kalpi. I do not agree in this reasoning with the least. By virtue of definition of Prescribed Authority provided under Section 3(e) "Prescribed Authority means a Civil Judicial Officer or Judicial Magistrate authorized by the District Judge to exercise all or any of the powers of Prescribed Authority." The mere fact that at the end of the judgment, the Presiding Officer described himself only as Civil Judge (Junior Division), Kalpi did not mean that the matter was decided by the Presiding Officer, only as Civil Judge and not as the Prescribed Authority. It is not disputed that the Presiding Officer was conferred with the powers of Prescribed Authority. Moreover, at the top of the judgment words "Prescribed Authority, Kalpi, District Jalaun" were mentioned. The matter was decided strictly in accordance with the procedure applicable to the release applications under Section 21 of the Act and not as suit.

The next point taken by the Appellate Court is that the shop in dispute had been let out without allotment order, hence release application was not maintainable. Supreme Court in AIR 2002 SC 3456 "Nutan Kumar v. 2nd Aditional District Judge" has held that suit (or release application) filed by the landlord against tenant, which is inducted by him without allotment order, is perfectly maintainable.

Accordingly, judgment passed by the Appellate Court is liable to be set aside. Unfortunately, Appellate Court did not say single word on the merit of the case. Even though leaned counsel for the landlord petitioner has argued that no other point was argued before the Appellate Court, however, as it is not mentioned in the judgment of the Appellate Court that no other point was argued, hence there is no option except to remand the matter to Appellate Court for deciding the same on merit, i.e. as to whether findings of the Prescribed Authority, in respect of bona fide need and comparative hardship, are correct or not.

Accordingly, writ petition is allowed. Judgment and order passed by A.D.J./ F.T.C. XI, Jalaun passed in Rent Appeal No.01 of 2001 is set aside. Appeal is remanded to the Appellate Court for deciding the same on merit.

During pendency of appeal, eviction of the tenant, who is appellant before the Appellate Court, shall remain stayed provided that w.e.f. October, 2007, he pays rent or deposits the same before the Appellate Court for immediate payment to the landlord petitioner @ Rs.600/- per month.

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

Appellate Court shall make all efforts to decide the appeal very expeditiously.




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