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Smt. Sarvar Jahan v. Judge Small Cases Kanpur - WRIT - A No. 3342 of 1998 [2007] RD-AH 6811 (13 April 2007)


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Court No. 7/Reserved

Civil Misc. Writ Petition No. 3342 of 1998

Smt. Sarvar Jahan Vs. Judge, Small Causes, Kanpur and others

Hon'ble Prakash Krishna, J.

This is a tenant's writ petition. The petitioner's husband was a tenant of a portion of house no. 101/56, Cannal Ganj, Kanpur on a monthly rent of Rs. 14/-. A SCC Suit No. 825 of 1984 was filed against Mohd. Rafiq, the husband of the petitioner for ejectment, recovery of arrears of rent and damages and the said suit was decreed exparte on 21-2-1985. An application under Order 9 Rule 13 CPC was filed for setting aside the exparte decree . During the pendency of the said application, the husband of the petitioner expired and the application was dismissed on 7-12-1994. An application was filed by the petitioner before the trial court on the allegation that a substitution application to substitute the heirs of her deceased husband was filed on 6-10-1993.  The said application has been dismissed by the trial court by the order dated 18-7-1996 and the said order has been confirmed in SCC Revision No. 101 of 1996. Challenging the aforesaid two orders, the present writ petition has been filed.

Having heard the learned counsel for the petitioner, I find that the allegation of the petitioner  that she had filed a substitution application on 6-10-1993 has not been accepted by the courts below.

In this view of the matter, there is no illegality in the impugned order. The application filed under Order 9 Rule 13 CPC was, therefore, rightly rejected by the trial court. The petitioner could not substantiate her contention that as a matter of fact a substitution application was filed on 6-10-1993. This is basically a finding of fact and cannot be interfered with in the present writ proceedings.

In the result, there is no merit in the writ petition.

The writ petition is dismissed accordingly.




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