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Mohd Akhtar v. A.D.J. - WRIT - A No. 1803 of 1994 [2005] RD-AH 5791 (16 November 2005)


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(Court No.51)

Civil Misc. Writ Petition No. 1803 of 1994

Mohd Akhtar Vs. IV Additional District Judge and others.

Hon'ble S.U.Khan J

Ghulam Rasool and others respondents 3 to 11 filed release application against original tenant Mohd Ashiq under section 21 of U.P Act No. 13 of 1972. Through the said application release of the shop in dispute was sought on the ground of bonafide need. Release application was registered as P.A case No. 22 of 1992. The original tenant Mohd Ashiq entered into compromise with the landlord in the said release application. Compromise was filed on 7.1.1993 and was verified in court on 8.1.1993.  Prescribed authority / JSCC Saharanpur on 8.1.1993, allowed the release application in terms of the compromise. Petitioner who was son of the original tenant Mohd Ashiq filed appeal against the said judgment and order of the prescribed authority, challenging the compromise (R.C Appeal No. 41 of 1991). Petitioner's father was alive at that time. The appellate court on page 8 of its judgment (annexure 4 to the writ petition) has observed that original tenant Mohd Ashiq filed application and affidavit that he had in fact entered into compromise with the landlord. The appellate court (IV A.D.J Saharanpur) dismissed the appeal on 23.12.1993 hence this writ petition. Mohd Ashiq who was one of the respondents in appeal died during the pendency of the appeal.

Heard Sri M. Islam learned counsel for the petitioner.

The Supreme Court in H.M.Doshi Vs. B.R.L.R.Das A.I.R 1993 SC 1449 has held that tenant can enter into compromise with the landlord in release proceedings.

In any case petitioner had absolutely no right to challenge the release order passed on the basis of compromise. It could be challenged only and only by the tenant Mohd Ashiq.

Learned counsel has further argued that during pendency of appeal Mohd Ashiq died hence petitioner inherited the tenancy and acquired the right to challenge the judgment and order passed by the prescribed authority as legal representative of the original tenant at least from the date on which the original tenant Mohd Ashiq died. After death of a party his legal representatives are fully entitled to pursue or initiate the proceedings as could be pursued and initiated by the deceased person. However it can be done only on the ground, which could be taken by the original deceased party, or on the ground, which came into existence subsequently. Compromise was entered into by the original tenant Mohd Ashiq. He never challenged that. He rather reaffirmed that subsequently also. In view of this petitioner is not entitled to challenge the order of the prescribed authority allowing the release application on the basis of compromise.

Learned counsel has argued that neither in the compromise nor in the order accepting the compromise there is any mention of the bonafide need of the landlord. Landlord in the release application asserted his bonafide need. In the compromise tenant accepted that he had no objection to the order allowing the release application. This clearly meant that the tenant admitted all the allegations of the release application, which clearly contained sufficient facts to constitute bonafide need.

Accordingly there is no merit in the writ petition hence it is dismissed.




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