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SUDARSHAN LAL JAIN versus IIND ADDL. DISTT. JUDGE

High Court of Judicature at Allahabad

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Sudarshan Lal Jain v. Iind Addl. Distt. Judge - WRIT - A No. 536 of 1988 [2004] RD-AH 1482 (22 November 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 26.

                                      W.P.No. 536 of 1988

Sri Sudarshan Lal Jain                                                   Petitioner

                                          Vs.

2nd Additional District Judge & others.                          Respondents.

                                      ***********

Hon. Vikram Nath, J.

This writ petition has been filed by the landlord against the judgment dated 10.9.1987 passed by 2nd Additional District Judge, Muzaffarnagar, whereby the S.C.C.Revision No. 60 of 1982, Union of India vs. Sudershan Lal Jain, was allowed and the judgment of the trial court dated 20.8.1982 decreeing the suit for arrears of rent and ejectment was set aside and the suit of the petitioner was dismissed.

I have heard Sri Ashish Kumar Singh, learned counsel for the petitioner, and Sri Manoj Sharma, Advocate, holding brief of Sri S. C. Sihna Senior Standing Counsel for the Union of India respondent no.2.

The disputed premises situate in Mohalla Prem Puri, Muzaffarnagar  is owned by the petitioner in which post office is being run by the Union of India. There was default in payment of rent and, accordingly, the landlord petitioner, gave notice under Section 80 C.P.C. and Section 106 of the Transfer of Property Act, 1882, terminated the tenancy and requested for vacating the premises. When the notice was not complied with he filed suit for recovery of arrears of rent and ejectment against the respondent No. 2, which was registered as O.S. No. 174 of 1978 on the regular side. Written statement was filed by the respondent no. 2. It was contended that the suit was not maintainable and liable to be dismissed. The trial court vide judgment dated 20.8.1982 decreed the suit for recovery of arrears of the rent, ejectment and also for damages till ejectment. Against the said judgment Union of India filed revision, which was registered as S.C.C. Revision No. 60 of 1982. The revisional Court relying upon full bench decision of this Court rendered in case of Punjab National Bank vs. Sugan Chandra referred in 1985(1) page 215, Allahabad Rent Cases held that the suit was not maintainable and accordingly allowed the revision and dismissed the suit vide judgment dated 10.9.1987. Aggrieved by the same, landlord has filed the present petition.

I have heard Sri Ashish Kumar Singh, learned counsel for the petitioner and Sri Manoj Kumar, Advocate, holding brief of Sri K.C. Sinha, learned Senior Standing Counsel for the Union of India.

The contention of the learned counsel for the petitioner is that the notice under Section 106 of the Transfer of Property Act was given on 5.5.1978 and served upon respondent no. 2 on 8.5.1978. Further, the notice under Section 80 CPC was given on 16.6.1978 and served upon respondent no. 2 on 19.6.1978. Suit was filed in September 1978. It is further contended that vide Ordinance No. 11 of 1976, which was promulgated w.e.f. 5th July 1977, was not enacted nor extended after 6 months. It lapsed on 26.10.1977. It is only subsequently that vide the UP Act 17 of 1985 that the definitions, which has been sought to be inserted in the year 1976 were again inserted in the Act w.e.f. 18.5.1983. It was submitted that since the notice was given in 1978 at the time when the definition of building only confined to place owned by the government and, therefore, the Act could not have been made applicable and the revisional Court, therefore, wrongly dismissed the suit. It is further contended that the judgment in the case of Punjab National Bank (supra) has been subsequently, considered and over ruled by the Hon. Supreme Court in the case of State of U.P. and another vs. Malik Zarid Khalid referred in 1988(1) Allahabad Rent Cases, page no. 1 and it has been held that during the time when the ordinance had lapsed and before the promulgation of the 1985 Act the state was liable to be ejected and a suit filed during the intervening period was maintainable. The judgment of the revisional Court relying upon the full bench decision of the Allahabad High in Punjab National Bank (supra) cannot be sustained.

In view of the facts stated above the writ petition succeeds and is allowed. The impugned judgment of the respondent no. 1 dated 10.9.1987 is set aside and that of the trial court dated 20.8.1982 is restored. No order as to costs.

22.11.2004 (v-1)

vkupdh


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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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