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Manoj Kumar v. A.D.J. - WRIT - C No. 13672 of 1984 [2007] RD-AH 3180 (26 February 2007)


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Court No.19

WP 13672 of 1984

Manoj Kumar v.   Ist Additional District Judge and others

Hon. S.N. Srivastava,J.

By way of this writ petition, petitioner is challenging an order dated 3rd September, 1984 allowing Impleadment Application of one Upendra Kumar in Appeal No. 9 of 1984 on the ground that he is owner of shop in question on the basis of a will allegedly executed by Ganga Devi.

It transpires from the record that Manoj Kumar-petitioner filed an Application for releasing the shop in question for his personal need.  Said Application was allowed and Respondent No.1-Bhagwati Sahai was directed to vacate the Shop in question and handover possession within a month.  An Appeal was preferred by Bhagwati Sahai against the said order of eviction and during pendency of the Appeal an Application was filed by Upendra Kumar for his Impleadment.  

Learned counsel for Opp. Party, has been elevated to the Bench of this Court and notices were issued to Upendra Kumar to engage someother counsel.  Nobody respondend to the notices despite the fact that notices were sent through Registered Post.

Heard learned counsel for the petitioner.

Learned counsel for the petitioner urged that the petitioner has already established relation of landlord-tenant and has moved an application to release the shop in question, which was rightly allowed.  The dispute of title cannot be adjudicated and gone into Appeal.  In case any person is claiming title, the same could only be adjudicated in proper proceeding in the Suit.  He relied upon a judgment reported in 2004 (56)ALR 695, Vijay Lata Sharma v. Raj Pal and another in support of his case.

Considered arguments of learned counsel for the petitioner and materials on record.

I am satisfied that in case any person is claiming any right, title or ownership of shop in question, he should have got adjudicated his right in the proper Suit.  Landlord and Tenant relationship was established in the present case and the Prescribed authority rightly passed an order for releasing the shop in question in accordance with law after considering the entire material on record.  Impleadment Application filed by Upendra Kumar was wrongly allowed by the Appellate court.  The dispute of title could only be adjudicated in a proper suit not in the proceeding for release. Once it is established that petitioner is landlord and Respondent no.1 is tenant, the Application to release the shop in question was rightly considered and allowed.  Impugned order  dated 3rd September, 1984, passed by the Appellate authority is vitiated in law and suffers from error of law apparent on the face of record.  My view is supported by the judgment reported in 2004 (56)ALR 695, Vijay Lata Sharma v. Raj Pal.

Accordingly, writ petition succeeds and is allowed.  Impugned order dated 3rd September, 1984 is quashed.  Appellate authority is directed to decide the Appeal in accordance with law within six weeks' from the date of presentation of a certified copy of this order.



Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites


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