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STATE OF U.P. THROUGH COLLECTOR MORADABAD versus IVTH A.D.J. & OTHERS

High Court of Judicature at Allahabad

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State Of U.P. Through Collector Moradabad v. Ivth A.D.J. & Others - WRIT - A No. 34823 of 1991 [2005] RD-AH 2084 (24 August 2005)

 

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. 32

Civil Misc. Writ Petition No. 34823 of 1991

State of U.P.     Vs. IV Addl.District Judge, Moradabad & others

    .......

Hon. Vikram Nath J.

This petition has been filed for quashing the order dated 17.4.89 and 19.2.1991 passed by respondents 2 and 1 respectively whereby the application of the respondent no.3 land lady for enhancement of rent under section 21(8) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act,1972 (hereinafter referred to as the Act) was allowed and the rent was enhanced to Rs.3748/- per month and the appeal against the same was dismissed as being barred by limitation.

I have heard Sri R.K.Tiwari learned counsel for the State petitioner and have perused the record. Despite service of notice respondent no.3 has not put in appearance. This Court vide order dated 23.7.2005 has already held that service to be deemed sufficient on respondent no.3. In the circumstances this matter is being heard ex-parte.

Application for enhancement was allowed vide judgment and order dated 17.4.89 by the Rent Control and Eviction Officer, Moradabad. The appeal against the same was filed on 3.10.89 which was accompanied by an application for condonation of delay supported by an affidavit of Sri M. Lal, District Harijan and Social Welfare Officer, Moradabad. In the affidavit it was stated that even though he had taken charge on 30.5.88 but outgoing Officer Sri Nirmal Kumar Anguria did not hand over the record of the case pending before Rent Control and Eviction Officer. It was further stated in para 2 that even the dealing Clerk Sri A. Kumar Verma was transferred from Moradabad to Kanpur. It is further alleged that on coming to know of the order on 8.8.89, the deponent sent a letter to the Additional Collector(Supply) for getting complete information and also necessary papers. It is further alleged that on account of strike the offices were closed and the copies could be made available after the strike was over in the month of Sept. 1989. It is on account of this fact that the delay was caused in filing the appeal. The appellate court vide judgment dated 19.2.1991 rejected the application of condonation of delay on the ground that the deponent having acquired knowledge about the order dated 17.4.1989 on 8.8.89 preferred the appeal on 19.10.89 i.e. beyond two and half months without any explanation for the period after acquiring knowledge. I do not agree with the reasoning given by the appellate court in as much as in paragraph 3 to 8 of the affidavit the District Harijan and Social Welfare Officer, Moradabad has explained that after acquiring knowledge certified copy were applied for but the same could not be made available on account of strike. However as soon as the copy was made available after the strike was over, the appeal was filed within time. This aspect mentioned in the affidavit has not been considered by the appellate court and therefore, the order cannot be sustained. There is yet another reason to condone the delay in filing the appeal that it is now well settled that liberal view should be taken in the matter relating to the condonation of delay and that where the discretion is to be exercised by the Court, the same should be exercised for affording opportunity of hearing and not for shutting it out.

In view of the above, this petition is allowed and the judgment and order of the appellate court dated 19.2.91 is set aside. The delay in filing the appeal is condoned. Matter is remitted to the appellate court to decide the appeal on merits in accordance with law.

Dt.24.8.2005

Hsc/


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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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