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Deepak v. Neel Kantheshwar Mahadev Vi0rajman Mandir And Others - WRIT - A No. 21627 of 2006 [2006] RD-AH 15468 (6 September 2006)


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Court No.7

                   Civil Misc. Writ Petition No. 21627 of 2006

Deepak son of late Hari Shankar resident of Bazar Kalan, Town Debai district Bulandshahar.                                                            Petitioner


Neel Kantheshwar Mahadev Virajman Mandir, situated at Bazar Kalan, Debai district Bulandshahar through Satish Chandra Singh, Mukhya Prabandhak, Chamber No.14, Block-A, Collectorate, Bulanshahar and others.                                                                                     Respondents


Hon'ble Rakesh Tiwari, J.

           Heard learned counsel for the parties and perused the record.

             Brief facts of the case are that the opposite party no.1 filed S.C.C. Case No. 68 of 1995 against the petitioner and opposite parties second sets. Another suit no. 67 of 1995 was also filed against Surendra Kumar and others. The third suit no. 69 of 1995 was filed by Neel Kantheshwar against Hari Shankar and others for arrears of rent and ejectment. The petitioner contested the suit and denied the ownership of opposite party no.1. All the three suits were consolidated and decided by common order dated 24.3.2004 by Judge Small Causes Court, Bulandshahar.

            Aggrieved by the aforesaid order dated 24.3.2004 the petitioner filed S.C.C. Revision No. 11 of 2004 in the Court of District Judge.

            During the pendency of revision the respondent no.1- landlord moved an application for dispensing with the service of notice on other co-tenants who are their real brothers and sisters. The petitioner filed objection against the aforesaid application. The said application was allowed vide order dated 28.3.2006 passed by the Revisional Court, hence this writ petition.

            The counsel for the petitioner submits that the Revisional Court was not legally justified in allowing the application 32-C without considering the fact that three married daughters of late Hari Shankar are living in different city in their ''Sasurals' and the petitioner took steps to serve other respondents by registered post; that the observation of the Revisional Court that the petitioner is delaying the proceedings of revision by not taking steps in the revision when respondent nos. 2 to 8 are brothers and sisters of the petitioner is wrong.

            He next submits that the Revisional Court was not legally justified in observing that in the earlier Misc. Case No. 587 of 1997 summonses were received by Deepak on behalf of his brothers, sisters and mother but in the present case Deepak has not received notice on their behalf therefore, the service is treated as sufficient, is wrong. He further submits that the impugned order dated  28.3.2006 of the Revisional Court is wholly illegal, improper and unjust in the facts and circumstances of the case and the same is liable to be quashed.

              The counsel for the respondents submits that there is no illegality or infirmity in the impugned order dated 28.3.2006 passed by the Revisional Court, hence no interference is required by this Court under Article 226 of the Constitution of India.

             The counsel for the petitioner has relied upon the judgment of the Hon'ble Apex Court in AIR 2001(3) SC-2251, Ashok Chintaman Jukeer and others Vs. Kishore Pandurang Mantri and another in which the Hon'ble Apex Court has held that after the death of original tenant his family members must be impleaded in the ejectment suit. Therefore, in the instant case, normally all the co-tenants should have been served.  Since other co-tenants are brothers and sisters they shall be personally served by the revisionist within two weeks thereafter. The steps for service shall be taken by the revisionist within 10 days from today. The service shall be affected on the co-tenants within a period of one month thereafter. No further notice shall be required to be issued in this matter. The Revisional Court may proceed in the matter in accordance with law. It is expected the Revisional Court shall dispose of the matter within a period of four months from the date of production of a certified copy of this order.

         With the aforesaid directions, the writ petition is disposed of. The interim order is vacated.

Dated 6.9.2006



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