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Sagir Ahmad v. The Prescribed Authority & Others - WRIT - A No. 12386 of 1984 [2004] RD-AH 411 (30 July 2004)


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Saghir Ahmad. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   Petitioner


The Prescribed Authority and others. . . . . .  . . . . . . . . . .  Respondents


Hon. Tarun Agarwala,J.

The petitioner is the tenant and has challenged the validity of the order dated 25.9.1981 and 1.9.1984. It transpires that the respondents were the landlords of the shop in question and had moved an application under Section 21 of U.P.Act No.13 of 1972 for the release of the shop in question. It further transpires that the prescribed authority passed an exparte order dated 25.9.1981 releasing the premises in question. The petitioner alleged that he came to know about the said exparte order on 17.3.1982 and thereafter he inspected the record and came to know that an application for setting aside the exparte order dated 25.9.1981 was filed on his behalf by one Sri Rajendra Kumar, Advocate, which was also rejected for want of prosecution. The petitioner accordingly moved an application for setting aside the exparte order and submitted that he had no notice of the proceedings initiated under Section 21 of the Act and that no summons were ever served upon him. The petitioner further contended that he had never engaged any counsel by the name of Sri Rajendra Kumar and that he had never issued any instruction to file the restoration application. The petitioner categorically stated that a fraud had been played upon the petitioner to get an exparte decree against him. This application was opposed and contested by the landlords. The respondent no.1 by an order dated 1.12.1994 rejected the petitioner's application for setting aside the exparte order on the ground that the petitioner did not deny his signatures on the vakalatnama given in favour of Sri Rajendra Kumar, Advocate.

Heard Sri Raj Kumar Jain, the learned Senior Advocate assisted by Sri Rahul Jain, for the petitioner and Sri Atul Dayal, the learned counsel for the landlord-respondents.

In my view, the writ petition is liable to be allowed. The application for setting aside the exparte order has been rejected by the prescribed authority on a technical ground that the petitioner did not deny his signature on the Vakalatnama given in favour of Rajendra Kumar. This finding of the prescribed authority, in my opinion, is wholly perverse. The petitioner in his application categorically stated that he had never engaged Sri Rajendra Kumar as his Advocate nor authorized him to file any application on his behalf. In view of the categorical statement made by the petitioner in his affidavit, it is strange that the prescribed authority comes out with this hyper technical objection. Not only this the prescribed authority has also not considered the report of the process server that no such Advocate by the name of Rajendra Kumar had been found in the Civil Court. The petitioner has also made an averment in paragraph 13 of the writ petition that the landlords in similar fashion had obtained exparte eviction orders in respect of three other shops in the same building on the basis of the report of the same process server and same witnesses.

In view of the aforesaid, the writ petition is allowed and the orders dated 1.9.1984 and 25.1.1981 are quashed. In the circumstances of the case the parties shall bear their own cost.




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