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Smt. Shabeera Khatoon And Another v. Fateh Mohd. - WRIT - A No. 20076 of 2007 [2007] RD-AH 7335 (20 April 2007)


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   Court no. 26                                                        

         Civil Misc. Writ Petition No. 20076 of 2007

        Smt. Shabeera Khatoon and another    vs      Fateh Mohd.

Hon'ble Rakesh Tiwari,J.


   Heard counsel for the parties and perused the record.

  This writ petition has been filed challenging the validity and correctness of the order dated 16.10.2004 passed by the Judge Small Causes, Kanpur Nagar in SCC suit no. 125 of 1999 and the order dated 15.12.2006 passed by the District Judge, Kanpur Nagar in SCC Revision No. 80 of 2006 filed under Section 25 of the Provincial Small Causes Courts Act.

Brief facts of the case are that respondent landlord filed SCC suit no. 125 of 1999, Fateh Mohd. versus Peer Mohd. in the Court of Judge Small Causes, Kanpur Nagar against the petitioners for ejectment from the disputed tenanted portion of residential house no. 102/182, Colonelganj, Kanpur and recovery of arrears of rent and damages.

During the pendency of the suit sole defendant Peer Mohd. died on 31.12.2002 leaving behind his widow Smt. Shabeera Khatoon and one mentally retarded son Fateh Mohd. who are the petitioners in the instant case. The respondent filed a substitution application for substitution of all legal representatives and heirs of deceased Peer Mohd. to which the petitioners filed objection.

The Judge Small Causes Court, Kanpur Nagar allowed the aforesaid application vide order dated 16.10.2004. Aggrieved by the aforesaid order dated 16.10.2004 the petitioners filed SCC Revision No. 80 of 2006 which too was dismissed vide order dated 15.12.2006.

This writ petition has been filed on the ground that both the Courts below have illegally held that there is nothing on record to show about the nature of accommodation whereas from perusal of the record it is apparent that the tenanted accommodation was situated on second floor consisting of one room and other amenities, hence it is clear that premises in question was a residential accommodation and therefore, the findings of the Courts below are absolutely perverse; that as per provisions of Section 3(a)(1) of U.P. Act No. 13 of 1972 in case of death of a tenant of a residential accommodation only his heirs would inherit the tenancy rights who were normally residing with the tenant at the time of his death, hence only widow Smt. Shabeera Khatoon and one son Fateh Mohd. would inherit the tenancy right and another son Faiz Mohd. who was not residing with the deceased tenant would not inherit the tenancy.; that the Courts below also failed to appreciate the own averment of the landlord that Fateh Mohd. was residing separately since long has no concern with the accommodation in dispute and therefore, he could not have substituted along with other heirs; that the Courts below have also not considered that Fateh Mohd. was mentally retarded and could not have been made party without a guardian being appointed and that the Courts below could not act as an expert and override the opinion of the Chief Medical Officer and other Doctors by personally examining Fateh Mohd., hence the orders of the Courts below are absolutely illegal and perverse.

From perusal of the records of the writ petition as well as the impugned order it is apparent that the Court below had summoned Fateh Mohd. who is said to be mentally retarded person and examined him. The Court below came to the conclusion after enquiry that he was neither of unsound minds nor was of weak memory and hence, disbelieved  the certificate issued by the Chief Medical Officer, Kanpur Nagar. If the Court below has himself examined Fateh Mohd. who is said to be mentally retarded person and came to the conclusion that he was neither of unsound mind nor was of weak memory, hence there is no reason to disbelieve the Court below.

For the reasons stated above, no interference is required by this Court under Article 226 of the Constitution.

The writ petition is dismissed. No order as to costs.

Dated 20.4 .2007






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