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Mohd. Shafi v. Special Judge, (Sc & St Act) & Others - WRIT - A No. 33841 of 1999  RD-AH 17225 (5 October 2006)
Civil Misc. Writ Petition No.33841 of 1999
Mohd.Shafi and another Vs. Special Judge and others
Hon. Sanjay Misra, J.
Heard Sri V.M.Zaidi, learned counsel for the petitioners and Sri R.K.Pandey, learned counsel appearing on behalf of the respondents.
This is an application for recall of the order dated 21.8.2006 passed by this court. It is contended by learned counsel for the petitioner that he was busy in arguing a case in court no.45 and therefore, when this case was called upon in the revised list, he could not appear to argue this case and the writ petition itself was finally decided after hearing learned counsel for the respondents. Learned counsel for the petitioner submitted that he should be given an opportunity to address the court on merits of the case and for the said reason, the order dated 21.8.2006 should be recalled. This application is supported with affidavit of the registered clerk of learned counsel for the petitioner. The averments made in the affidavit are to the effect that the writ petition was listed for orders in court no.25 on 21.8.2006. The writ petition was taken up in the revised list and at that time learned counsel for the petitioner was arguing a criminal case in court no.45. A request was made on behalf of the petitioner to pass over this case but the court did not accept the said request and the writ petition was dismissed on merits on 21.8.2006. It is further stated by learned counsel for the petitioner that the petitioner was pursuing the writ petition deligently and sincerely and in case he is not afforded an opportunity for hearing the petitioner will suffer irreparable loss on account of lapses committed by the counsel. For the aforesaid reasons, the said order dated 21.8.2006 is sought to be recalled.
This case was fixed today on the request of learned counsel for the parties for consideration of recall application as referred to above.
Learned counsel for the petitioner has argued that in view of the finding recorded by the courts below that the provisions of Act No.XIII of 1972 were applicable to the shop in question the suit itself was barred since any tenancy created without following the procedure after enforcement of the Act would be illegal. The second contention of learned counsel for the petitioner is that there was no evidence with respect to tenancy of the shop in question therefore, the findings recorded by JSCC as affirmed by the revisional court are liable to set aside.
The aforesaid argument raised by the petitioner relates to the applicability of Act and restrictions imposed by the Act. The second ground relates to the findings of fact recorded by the courts below wherein it has been recorded that tenancy was created with respect to the building at a monthly rent of Rs.160/-.The trial court held that provisions of the Act were applicable and it was affirmed by the revisional court below.
At this stage of seeking recall of the order dated 21.8.2006 it is contended by learned counsel for the petitioner that both the aforesaid arguments/points be considered and this writ petition should be allowed.
Having considered the aforesaid submissions of learned counsel for the petitoner this court is of the view that since the relationship of landlord and tenant has been found to exist by recording findings based on evidence this court would not interfere with the findings of facts recorded by the courts below unless such findings are recorded on the basis of irrelevant consideration or by ignoring material evidence. The revisional court found that the issue of default in payment of rent since 1.1.1991 was based on a correct appreciation of evidence. The findings of the trial court on relationship of landlord and tenant and regarding benefit of section 20(4) of the Act were
confirmed by the revisional court holding them to be in accordance with law. No error has been found in the said findings. Upon perusal of the impugned judgments this court finds that the findings are based on evidence and cannot be faulted.
The provisions of the Act have been held to be applicable and neither any issue was got framed nor such question was raised by the petitioner before the courts below to the effect that creation of tenancy in violation of the restrictions as provided in the Act was involved in the present case. The courts below have recorded that the claim of the landlord was with respect to a different shop whose tenancy had no relation with the shop situate under the staircase. The petitioner was found to have produced forged documents with respect to paymernt of rent. No documentary evidence was produced by the petitioner regarding creation of a new tenancy. The document paper no.86C was found to have been fabricated and manufactured. The petitioner has not proved his plea relating to the identity of the shop. He has only denied the quantum of monthly rent and has contested the proceedings as such. This argument having not been raised before the trial court or the revisional court cannot be permitted to be raised in a writ petition for the first time.
For the reasons aforesaid no valid grounds have been made out to recall the order dated 21.8.2006. The application is disposed of as above. No order is passed as to costs.
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