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Shiv Nandan Prasad Jaiswal And Another v. Jagdish Chandra Nigam And Another - WRIT - A No. 64121 of 2005 [2005] RD-AH 3893 (3 October 2005)


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Court No. 51

Civil Misc. Writ Petition no.64121 of 2005

                       Shiv Nandan Prasad Jaiswal

                     and another . . . . . . . . . . . . . . .. . . Petitioner


                      Shrimati lata Varseneya and

                       anothers. . . . . . . . . . . . . . . . . . . . . . . . . . .Respondents.

Hon'ble S.U.Khan,J.

Petitioner is a tenant against whom landlord respondent filed release application under section 21 of U.P. Act No. 13 of 1972 (hereinafter described as the "Act'), being rent Case No. 45 of 1999 J.C.Nigam vs. R.P.Jaiwasl. Prescribed Authority /Special C.J.M. Nallowed the release application on 31.1.2005 against which petitioner has filed rent appeal no. 11 of 2005, which is pending. During pendency of release application before the Prescribed Authority petitioner had filed an application for inspection of property in dispute through Advocate Commissioner, which was rejected. Against that rejection order petitioner filed writ petition no. 42756 of 2004. This Court dismissed the said writ petition on 11.10.2004. In the first paragraph of the said judgment this Court expressed its agreement with the order of the Prescribed Authority. However, in the second paragraph Court held that " the order impugned is an interlocutory order which can be challenged in case the matter is ultimately decided against the petitioner.". By virtue of the aforesaid clause of the judgment, petitioner filed an application before the lower appellate court seeking to amend the grounds of appeal by adding a ground to the effect that the order of the Prescribed Authority rejecting application for appointment of Commissioner was wrong. By the impugned order dated 6.9.2005 learned appellate court/ A/D.J. Court No. 7, Kanpur Nagar rejected the said application. The lower appellate court has held that in the first paragraph of the earlier judgment of the High Court it has been held that the order of the Prescribed Authority rejecting application for inspection through commissioner was correct. In my opinion, the view of the lower appellate court is not correct for the following two reasons:

(i) Firstly, in the second paragraph of the aforesaid judgment of this Court it was clearly mentioned that the tenant could challenge the said order in the appeal, which might be filed in case release application was finally allowed against the tenant.

(ii) Secondly, any opinion expressed or view taken by a higher court in      appeal, revision or writ petition directed against an interlocutory order is not binding upon the lower court at the stage of final decision of the proceedings.

This position may be illustrated by an example. if in a suit temporary injunction application is disposed of and against the said order appeal is filed and after the decision of the appeal writ petition is filed, and while deciding the writ petition high Court expresses some opinion, either on fact or on law, it will not be binding upon the trial court at the stage of final decision of the suit or appellate court while hearing appeal against final judgment and decree of the trial court.

Accordingly it is directed that the petitioner shall be permitted to raise the argument in appeal pending before the lower appellate court to the effect that the order of the Prescribed Authority rejecting the application for appointment of Commissioner was wrong. This may be done even without any formal amendment in memorandum of appeal. Writ petition is accordingly disposed of.

This order has been passed without issuing notice or hearing landlord respondent. If he feels aggrieved by this order, he is at liberty to apply for its recall.

Dated: 3.10.2005



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