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Bidhi Chand v. Addl. D.J. - WRIT - A No. 2561 of 1981 [1999] RD-AH 20 (12 May 1999)


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Civil Misc. Writ Petition No.2561 of 1981

Bidhi Chand            ....           Petitioner


IV Additional District Judge,

Aligarh and others                  Respondents


            and connected with

Civil Misc. Writ petition No. 3630 of 1981

Ram Gopal     ...                ...   Petitioner


IV Additional District judge,

Aligarh and others                      Respondents

Hon'ble Yatindra Singh,J.

1. One Jyoti Prasad and Babu Lal (Mortgagor in short) were owner of the property.   They usufructuary mortgaged the same to one Durgadas (Mortgagee in short) on 29.9.1941.  The Mortgagor filed a suit for redemption of the mortgage and a preliminary decree was passed on 12.5.1976. Subsequently a final decree was also passed on 5.2.1977.  The final decree was put into execution.  In this execution two objections were filed; one was by Bidhi Chand and the other by Ram Gopal.  They claimed that they are the tenants of the premises in dispute and can not be evicted. These objections were dismissed on 23.9.1978 and their appeal was also dismissed on 20.12.1980.  Both of them filed two separate writ petitions namely writ petition no. 2561 of 1981 Bidhi Chand vs. IV Additional District Judge and others and writ petition no. 3630 of 1981, Ram Gopal vs. IV Additional District Judge and others.

2. Writ Petition no. 2561 of 1981 was allowed by Justice B.D Agrawal on 7th May, 1985 and the order dated 20th December 1980 passed by IV Additional District Judge, Aligarh was quashed and he was directed to re-decide the appeal in accordance with law in the light of observations contained in that order. The writ petition no. 3630 of 1981 was also allowed on 10.7.91 by Justice S.K.Mukherjee who has merely followed decision of Justice B.D. Agrawal in W.P.No. 2561 of 1981 and had directed to re-decide the appeal on merit in accordance with law and in the light of observation contained in the judgement dated 7.5.85 passed in W.P. no.2561 of 1981, Bidhi Chand vs.IV Additional District Judge.  Both these appeal were again came to be considered by III Additional District Judge, Aligarh and it appears that in between few decisions of the Supreme Court1 had come about where some observations are contrary to the observations made in the judgement by which the case was remanded. The 3rd Additional District Judge by his order dated 28.8.95 has made present reference under section 113 of the Code of Civil procedure to the High Court to give further direction as to how the cases may now be decided.

3. I have heard counsel for the parties. The counsel for the parties had argued at length whether the remand order is binding upon the parties or not and have cited certain decisions under the Code of Civil Procedure to show if the order of remand was binding or not.  It is not necessary to refer to them for the reason that

The Code of Civil Procedure does not apply to the writ jurisdiction.

The writ petition was allowed and the matter was sent back for re-decision.  The most important and relevant direction of the High Court as mentioned in the decision of Justice Agrawal dated 17th May 1985 was "Respondent no. 1 is directed to re-decide the appeal on merit in accordance with law."  

4. The case after the remand has to be decided in accordance with law. The law of the land is the law as declared by the Supreme Court. As the matter has come back to this court on reference made by the III Additional District Judge, Aligarh, it would be appropriate to say that he may decide the cases afresh in accordance with law as declared by the Supreme Court after giving reasonable opportunity to the parties to produce additional evidence, if any. The court below will also have regard to the following facts:-

(i) What was the term of mortgage deed? Did it permit mortgagee to induct a tenant without the permission of the mortgagor? Was the tenancy created by mortgagee had the concurrence of mortgagor or not?

(ii) Does U.P. (Temporary) Control of Rent and Eviction Act, 1947 or U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 apply to the area where the shop in question is situate?

(iii) What was the exact date of letting? Whether the tenancy rights came to be enlarged by the aforesaid Acts.

5. The entire files of the court below may be sent back to the Court of 3rd Additional District judge, Aligarh for speedy disposal. Let a copy of this order be placed in the record of connected Writ Petition No. 3630 of 1981, Ram Gopal vs. 4th Additional District Judge, Aligarh and others.





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