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MOHD. SULTAN AND ORS. versus STATE OF U.P. & ORS.

High Court of Judicature at Allahabad

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Mohd. Sultan And Ors. v. State Of U.P. & Ors. - WRIT - A No. 43169 of 1999 [2006] RD-AH 17296 (6 October 2006)

 

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

\

Judgement reserved on 19th September.2006

                                        Judgement ready on  3rd October, 2006

Judgement delivered on 6th October, 2006

Civil Misc. Writ No. 43169 of 1999

.Mohd. Sultan and others         ...                        Petitioners

Vs.

State of U.P. and others                       ..       Respondents.

Connected with

Civil Misc. Writ No. 3658 of 1983

.N.S. Dutta and others         ...                        Petitioners

Vs.

A.D.J and others                       ..       Respondents.

(Decided by Hon'ble B.D. Agarwal, J vide judgement dated 11.11.83)

`

Counsel for the petitioner :        Sri Ashok Mehta, Sri Sunit Kumar,                                                            

                                                     Sri Malik Sayeed Uddin and Sri S.Malik

Counsel for the respondents:     Standing counsel for State and respond-

                                                      ent nos 1 to 3,Sri S.N.Verma learned  

                                                       Senior counsel assisted by Sri Arnab  

                                                       Banerjee for respondent no. 3 and

        Sri Pankaj Bhatia, Advocate for private

                    Respondent no. 4.                              

Hon'ble Rakesh Tiwari, J.

1. Heard counsel for the parties and perused the record.

BACKDROP OF THE CASE

2. Property in dispute pertains to house no.16 M.G. Marg, Allahabad,

( earlier house no. 14 Canning road).  The premises was lent to Mr. George Henery Barnett in 1929 for business as well as for residential purpose. He  started Hotel business with his wife in the name of Hotel ''Barnetts' in the aforesaid premises. The Barnetts' left India for finally settling in Britain near about the independence in 1947.

3. It was then jointly allotted in favour of Sri N.S. Dutta and Smt. Nirmala Verma by the City Magistrate, Allahabad on 25.4.1947 (hereinafter referred to as ''the allottee-tenants)  in exercise of power under Section 7(2) of Temporary (Control of Rent and Eviction Act), 1947 ( Act No. III of 1947) at a monthly rent of Rs. 643.72 P. The allottees carried on the Hotel business of the Barnetts under partnership in the name of ''Barnett Hotel' after acquiring the entire stock in trade of aforesaid Hotel Barnett from Mr. George Henery Barnett.

4. Sri Brij Mohan Tandon, the landlord- respondent no. 4 in the writ petition filed a release application in 1978 under Section 21 (1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''the Act') against the allottee-tenants for release of the premises of 16, M.G. Marg, Allahabad.  The application was registered as P.A. Case No. 40 of 1978- Sri Brij Kishore Tandon V. N.S. Dutta and 8 others.

5. The case set up by respondent no. 4 in his application for release- P.A No. 40/1978 was that he is the landlord and owner of the building being premises no. 16 Mahatma Gandhi Marg, Allahabad. With regard to bona fide need and comparative hardship, it was averred in the release application that the predecessors to the applicant Sri Brij Kishore Tandon were big Zamindars but his family income received a set back on abolition of Zamindari in year 1950, hence they started jewelery business at Chowk, Allahabad under partnership in 1952 in the ancestral building without dislodging any of the tenants of erstwhile M/s. Barnett & Co., but on enforcement of Gold Control Act in 1968 his business again suffered a set back. It was also averred that with the enforcement of Urban Land (Ceiling and Development)act and in view of prohibition therein, no new constructions could be made by him as owner of his land to settle his son- Sri Harsh Tandon who had graduated in Commerce. The building was in heart of Civil Lines and suited for hotel business.

6. It was submitted that the allotee-tenants had dissolved their partnerships and  closed their business of hotelling-M/s. Barnett & Co.; that Mrs. Nirmala Varma has withdrawn all her interest from the aforesaid business and Sri Dutta being more than 75 years of age was almost physically incapable to run the business alone, he let out different portions of the disputed building to different persons on permanent basis and that his family members (opposite party nos. 3 to 9 in the application) are well settled and not dependent on the Hotel business. They are also neither tenants nor necessary parties, but they have only been impleaded to avoid future complications.

7. The application for release under Section 21(1)(a) of the Act by Sri Brij Mohan Tandon was opposed by Opposite Party Nos. 3 to 9, i.e. heirs of Sri N.S. Dutta in the application. Though admitting the tenancy and business in the name of ''Barnett Hotel' as well as the position of the applicant's family as Zamindar and opening of a jewellery shop it was denied that there was any compulsion for the landlords to carry on their business of jewellery in their residential house. They showed their ignorance abut qualifications of the son of the applicant but however, stated that he did not possess technical qualification for hotel business.

8. It was averred in the objections that the son of the applicant looks after the family business in the jewellery shop in his spare time and that there are number of other buildings owned by the landlord which may be used by him for hotel business; that Opposite party no. 1- Sri N.S. Dutta is hale and hearty and can intelligently and diligently look after the hotel business with the help of his sons who are partners in the hotel business.

9. It was also averred in the objection that neither any portion of the premises 16 M.G. Marg has been let out by them to any body on permanent basis nor they have sublet any portion of the building in dispute and that opposite party no. 1- Sri N. S. Dutta and opposite party nos. 3 to 9 his sons and daughters are members of partnership firm of ''Hotel Barnett' limited to them only as Smt. Nirmala Varma retired from active business on 1.4.1975 but retained 1% of her share and that she finally retired from business on 31.3..70.  

10. The case set up by respondent no. 1- Sri N.S. Dutta and 3 to 9- his heirs in the application was that the landlord wanted to enhance the rent exorbitantly and in order to take undue advantage of the good reputation of the said hotel, it was stated that it was requested by him to spare some appurtenant land of the building, under the pretext that he will construct a building for commercial and residential purposes for his family. It is stated that believing the landlord, the allottee-tenants delivered possession of the land appurtenant to the building in dispute to the landlord but no construction was made by him thereon. In the aforesaid backdrop it was urged that the landlords had no bona fide need of the property/accommodation, in dispute and if the building is released in his favour then the tenants will suffer comparatively more hardships than the landlord.

11. Smt Nirmala Varma did not file any written statement in the release application spite of service and knowledge.

12. The Prescribed Authority considering the contentions of the parties and rule 10(2) read with rule 16(2)(d) of the U.P Urban Buildings ( Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as ''the Rules') held that the application of the landlord has sufficient force and is liable to be allowed for releasing the building, in dispute, i.e. 16 M.G. Marge, Allahabad. The order dated 1.5.1982 passed by the XIInd Additional Munsif (Prescribed Authority, Allahabad) allowing the release application is as under :-

"   The O.P. No. 1 is an old aged man and no doubt that from the eviction of the O.Ps some inconvenience will be caused to the most on this ground only the release of the building in dispute cannot be refused when the need of the landlord is bona fide and genuine and greater.  I further hold that less hardship would be caused to the O.Ps on eviction and they may be compensated by two years' rent total on the existing rate of Rs.643.72 paise per month. ....

ORDER

The application, 4A of the landlord-applicant for the release of building no. 16, Mahatma Gandhi Marg, Allahabad is allowed against opposite parties, subject to the applicant's depositing two years rent at the existing rate of Rs.643.72 paise p.m. as compensation for opposite parties, within one month from the date of this judgment and the opposite parties are ordered to vacate the building in dispute, and delivery of its possession to the applicant-landlord, within two months from the date of judgment, failing which the opposite parties shall be liable to eviction.

I make to orders for the costs of the proceedings.

1.5.82                       Sd/ H.I.P. Agarwal

                                                           XII Additional Munsif

                                                          (Prescribed Authority)

                                                                           Allahabad."                                                  

13. The release order dated 1.5.82 passed by the Prescribed Authority in P.A. Case no. 40 of 1978 was challenged in Rent Control Appeal No. 349 of 1982-N.S. Dutta and others Vs. Brij Kumar Tandon. By the allottee-tenants. The appeal was dismissed vide  order dated 11.3.1983 passed by the then VIII Addl. District Judge, Allahabad confirming the release order dated 1.5.82 passed by the Prescribed Authority aforesaid.

14. Aggrieved by the order in appeal dated 11.3.1983, the allottee- tenants filed Civil Misc. Writ No. 3658 of 1983 which was also dismissed by High Court vide judgment dated 11.11.1983 (reported in 1985(1) ARC-113).  The allottee-tenants and others then preferred S,L.P. No. 1716 of 1984 before Hon'ble the Apex Court which too was dismissed vide judgment dated 31.5.1984 and thus the order of release dated 1.5.1982 passed by the Prescribed Authority attained finality.

The first innings :

15. Respondent no. 4- Sri Brij Kishore Tandon the landlord, in the meantime, had filed an execution application dated 15.1982, which was registered as P.A. Case no. 29 of 1983. The Prescribed Authority in exercise of powers  under Section 23 of the Act, vide order dated 16.5.1984 directed the Station Officer to evict Sri N.S. Dutta and others and to put landlord into actual physical possession of the entire premises no. 16, M.G. Marg in execution of the release order. The S.H.O was also directed to submit compliance report by 19.5.84 to the authority.

16. Admittedly, the petitioners intend to claim possession through Barnetts' and not through Sri N.S. Dutta and Smt. Nirmala Verma did not make any efforts at any stage to get themselves impleaded or heard in the release application filed against the allottee- tenants as they thought it safe to wait in the wings. Thus ended the first innings for eviction of tenants and unauthorized occupants of servant quarters and outhouses living in the premises in dispute, i.e., 16 M.G. Road, Civil Lines Allahabad.

The second innings:

17. In pursuance of the order passed by the Prescribed Authority in the execution case, the concerned Station Officer got the possession of the main building only delivered to the landlord on 17.5.1984 but was unable to put the landlord in possession of the servant quarters and the outhouses of the premises 16-M.G. Marg, Civil Lines, Allahabad which were in occupation of the petitioners and their predecessors.

18. It appears that the employees of Barnett Hotel/ persons living in the servant quarters and outhouses including the petitioners and their predecessors had resisted the delivery of possession of accommodation under their possession in the premises 16 M.G. Marg on the ground that they were neither a party to the release application nor in the execution proceedings filed by the landlord and that there being no specific order of eviction against them, the order passed by the Prescribed Authority for release of the premises and their eviction from the accommodation in their possession was without hearing them and was in the circumstances not binding upon them.

19. An application dated 17.5.1984 was moved before the Rent Control and Eviction Officer by 21 persons including some of the petitioners and predecessors of others living in outhouses/servant quarters inter alia that they had been residing in the back portion in different houses in their capacity of servants of Barnett Hotel. It was averred in the aforesaid application that though possession of the main building had been delivered to the landlord the Rent Control and Eviction Officer was being informed by the application that on their request, Sri B.K. Tandon, the landlord had permitted them to reside as licensee for some time and that after they are given some other place, they will immediately give vacant possession of the accommodation to him. The application by the petitioners dated 17.5.1984 is as under :-

"                 U;k;ky; jsUV dUV~ksy vkfQlj bykgkcknA

         ckor edu la[;k 16 egkRek xkW/kh ekxZ bykgkckn A

egksn;]

ge yksx mDr edku esa ihNs dh rjQ lkxj is'ks dh vyx vyx ihNs dh dksBfj;ksa esa ckjusV gksVy dh rjQ ls vkckn gksrs vk jgs gSa vkt ckjusV gksVy dh csn[kyh iqfyl dh enn ls U;k;ky; ih0,0 bykgkckn ds vkns'k ds ikyu esa dj fn;k x;k gS A

ge yksxksa ds fuosnu ij Jh ch0ds0VUMu edku ekfyd usa dqN fnu ds fy, jgus dh btktr crkSj ykblsUlh ds viuh rjQ ls ns fn;k gS A bwljh txg fn;s tkus ij ge yksx rqjUr [kkyh dCtk o n[ky ns nsaxs A

vr% Jheku th dks lwfpr fd;k tk jgk gS A

1&g0 eks- lqYrku

2& g0 eks- 'kjhQ

3& g0 vifBr

4  g0 Jherh 'kghnwu                 14&g0 eqUuk yky

5& g0 f'koizrke                     15&g0 eqUuh yky

6&g0 jkeir                        16&g0 Jherh 'kkUrhnsoh                                                                                                        

7&g0 dkerk izlkn                   17&g0 txnh'k izlkn                                              

8&g0 ekS0 bdcky                    18&g0 Jherh T;kfrnsoh

9&g0 Jherh efj;e csxe              19&g0 Jherh 'kdqUryk

10&g0 eks0 gchc                     20&g0 ;wthu

11& g0 eks0 [kyhy                    21&g0 ekS0 vdcj"

12&g0 vktkn vyh

13&g0 vkseizdk'k

20. Accordingly, a report dated 19.5.1984 was submitted by the Cannington Police Station, Allahabad to the effect that the buildng of ''Barnett Hotel' in the premises 16 M.G. Marg, Civil Lines, P.S. Cannington, allahabad has been delivered to the landlord, a western part of the building no. 16-M.G. Marg, (Barnett Hotel) is under possession of Times of India (Nav Bharat Times) and Sri Ali is living in its outhouse in his room. The landlord has given time to him to vacate the accommodation. The report is as under :-

"                         fjiksVZ Fkkuk dSfuaXVu]tuin bykgkckn

  fo"k;%&Misc. P.A Case 12/81 PA case No.29/1983

   oknh Jh ch0ds0VUMu iq= Lo0 Jh dkerk izlkn VaMu R/o393 jkuhMaMh

  bykgkckn

Jhekuth]

fuosnu gS fd Jheku th ds vkns'kkuqlkj ckjusV fcfYMax ua0 16 ,e0th0ekxZ (Barnet Hotel) flfoy ykbZUl Fkkuk dSfuaXVu ftyk bykgkckn dks [kkyh djkdj Jh ch-ds- VUMu dks dCtk fnyk;k x;k A mDr fcfYMax dk ,d if'peh Hkkx VkbZEl vkQ bfUM;k ds dCts esa gS (uoHkkjr VkbEl) mlds outhouses esa jgus yxs Jh vyh vius dejs esa jg jgs gS A ftldks [kkyh djus ds fy, edkuekfyd dh rjQ ls le; fn;k x;k gs

fooj.k dCtsnkj

1& vkns'k ewy

2&izek.ki= nksuksa Qjhdsu dks dCtk nsus dk

3&j'khn lkeku dkjksckjh foospuk nh xbZ A

                  fjiksVZ izsf"kr gS A

                          g0 vLi"V

                         19-5-94"

 21. An application dated 19.5.1984 was moved by the landlord before the Prescribed Authority in reference to the Police report dated 3.12.1984, inter alia bringing to his notice accommodation in possession of Nav Bharat Times and the outhouses has not been delivered to him and that he had never given his consent to any person to remain in possession in the building, its portion or in the outhouses and servant quarters of the aforesaid premises no. 16 M.G. Marg, Civil Lines, Allahabad and that the entire premises, in these circumstances, has not been delivered to him. The landlord, therefore, prayed that in order to bring the execution proceedings to its full satisfaction and logical end in pursuance of execution of the release order, the Station Officer be again directed to evict the Times of India and all unauthorized occupants from the servant quarters/outhouses and put the landlord into actual physical possession.

22. The authority was also informed by the aforesaid application dated 19.5.1984 filed on behalf of the landlord that after getting possession of the main building of the premises, the son of the landlord has started running his Hotel business therein in the name and style of ''Hotel Harsh'. It was also informed that he has deposited Rs.15,449/- towards two years' rent as compensation awarded by the Prescribed Authority as well as directed by the Hon'ble Supreme Court.

23. On the aforesaid application, the Prescribed Authority directed the Cannington Police Station to submit detailed report specifying the portions of premises no. 16 M.G. Marg, Civil Lines, Allahabad of which possession had been given and of the portion of which possession had not been given to the landlord.  Accordingly, report dated 3.12.84 was submitted by the Police, Police Station Cannington that the possession of the main building had been given to the landlord but the possession of the outhouses and servant quarters in the possession of the employees of Barnett Hotel could not be delivered.

24. It appears that the counsel for the landlord requested the Prescribed Authority on 20.12.1984 to consign the records as steps  had not been taken. The application was accordingly allowed.

25. The landlord, thereafter, moved an application on the same date for recall of order dated 20.12.1984 of consigning the application to records. It was prayed in the recall application that after recalling the said order, parvana for eviction in respect of servant quarters and outhouses may also be issued by the Authority. The Authority recalled its earlier order dated 20.12.1984 on the same day i.e. 20.12.1984 in the interest of justice, by which application had been consigned to record and directed that the file may be placed again before him on 2.2.85 for further orders.

26. The Prescribed Authority thereafter vide order dated 15.3..1985  again directed for steps to be taken within three days and for issuance of parvana against occupants of the outhouses, specifically directing that since the premises had been released in favour of the landlord and the release order having been upheld by the High Court, he is entitled to get possession over outhouses and servant quarters as well which is in occupation of the employees of erstwhile ''Hotel Barnetts'.  By the aforesaid order, the Station Oficer, Police Station Cannington was also directed to submit his report by 25.3.1985.

27. The order dated 15.3.1985 is as under:-

"izkFkZuk Ik= 32ch ij vkns'k

Fkkuk dSfuaXVu dh fjiksVZ dk voyksdu fd;k x;k ftlds vuqlkj 16]egkRek xkW/kh ekxZ ds ,d Hkou dk dCtk n[ky edku ekfyd ch0ds0VaMu dks fnyk;k tk pqdk gS A ;n/kfi mDr Hkou ls lacaf/kr vkmV gkmlsl o losZUV DokZVZj dk dCtk n[ky u fnyk;k tkuk fjiksVZ esa vafdr gS A 32&ch izkFkZuk Ik= izkFkhZ ch0ds0VaMu dh vksj ls mDr vkmV gkmlst o losZUV DokVZj esa dCtk n[ky fnykus gsrq izLrqr fd;k x;k gS A

Ik=koyh dk voyksdu fd;k x;k A dfe'uj dh fjiksVZ o izfri{kh ds vfHkdFku dks ns[kus ls Li"V gS fd mDr losZUV DokVZj o vkmV gkmlsl esa rRdkyhu jgus okys yksx rRdkyhu gksVy ckusZV ds deZpkjh Fks A edku ua0 16 egkRek xkW/kh ekxZ edku ekfyd ch0ds0VaMu ds gd esa vfUre #Ik ls ekuuh; mPp U;k;ky; ls fd;k tk pqdk gS A ,slh fLFkfr esa mDr Hkou ls lacaf/kr losZUV DokZVZlZ o vkmV gkmlsls dk dCtk n[ky fnyk;k tkuk mfpr gS A U;k;fgr esa izkFkZuki= 32&ch Lohdkj fd;k tkrk gS A Fkkuk/;{k dSfuaXVu dks edku ua0 16 egkRek xkW/kh ekxZ ds vkmV gkmlsl o losZUV DokZVj dk dCtk n[ky fnykus dk ijokuk iqu% izsf"kr gks A Fkkuk/;{k viuh rkehyh fjiksVZ fnukad 25-3-85 rd U;k;ky; esa izzLrqr djsa A iSjoh vUnj rhu fnu dh tk;s A

Fnukad 15-3-85                         g0 vLi"V

                                       ( vt; oekZ )

                                                         fu;r izkf/kdkjh] bykgkckn"

28. It appears that in the meantime no further progress was made and the matter of restoration of possession to the landlords remained in state of suspended animation which came to an end in 1999 when the landlord moved an application dated 11.8.1999 impleading 22 persons occupying the servant quarters and outhouses of the premises, in dispute, as opposite parties. Opposite parties no. 1 to 9 were parties in the initial release application and opposite parties no. 10 to 22 were still in illegal possession of the outhouses and servant quarters.  It was, therefore, prayed that the order of eviction of opposite parties may be passed.

29 Thereafter, Sri Jagdish Prasad, petitioner no. 16 also moved application supported by an affidavit dated 1.10.1999 for recall of the order dated 21.9.1999 stating therein that he was grandson of Sri Hira Lal, opposite party no. 10 in the application dated 11.8.1999 filed by the landlords impleading 22 persons, as aforesaid.  It was averred in the application by Sri Jagdish Prasad that the order dated 21.9.1999 passed by the Prescribed Authority for taking possession from the persons living in the outhouses and submission of report by the Police was an ex parte order, as such, fresh order may be passed after hearing the opposite parties. Relevant paragraphs 6,7,8 and 9 of the affidavit of Sri Jagdish Prasad relied upon by counsel for the petitioners in this regard are as under :-

"6& ;g fd U;k;fgr esa vko';d gS fd vkns'k fnukafdr 21-9-99 bZ0 tks loZFkk ,di{kh; gS dks fo[kf.Mr fd;k tk;s vkSj vkns'k fnukad 21-9-99 ds fdz;kUo;u rRdky LFkfxr dj fn;k tk; vkSj mlds I'pkr mHk; Ik{k dks lquus ds Ik'pr leqfpr vkns'k ikfjr fd;k tk;s vR;Fkk foi{khx.k la0 10 yxk;r 22 o muds okfjlku dks tcju vkyksP; vkns'k dh vkM esa iz'uxr Hkou la0 16 ,e0th0ekxZ ls csn[ky dj fn;k tk;sxk vkSj os yksx cslgkjk gksdj lMd ij vk tk;saxs A

7& ;g fd foi{kh la0 10]12]14]15] 16]17]18 ,oa 19 vkfn dh e`R;q Hkh vjlkus gks pqdh gS ysfdu bl ckr dks fNikdj Jh c`tfd'kksj V.Mu us vkyksP; vkns'k fnukad 21-9-99 vnkyu dks ?kks[kk nsdj o xqejkg djds izkIr fd;k gS tks dkuwu ds n`f"V esa ,d 'kwU; vkns'k gs vkSj mldk fdz;kUo;u fd;k tkuk laHko ugha gS A

8& ;g fd mijksDr e`rd foi{kh ds mRrjkf/kdkjh gS ysfdu mudks Ik{kdkj crkSj foi{kh eqdnek u cukdj xyr <ax ls vkns'k fnukad 21-9-99 izkIr fd;k x;k gS A pwWfd izkFkhZ c`tfd'kksj V.Mu Lor% vnkyr dks /kks[kk fn;k gS ,slh n'kk esa U;k;ky; dks vius vUrj.k O;fHkpkj dk iz;ksx djrs gq, ,d Ik{kh; vkns'k fn0 21-9-99 fo[kf.Mr dj nsuk pkfg, vkSj mldk fdz;kUo;u rRdky jksd nsuk pkfg, A

9& ;g fd foi{khx.k la0 10 yxk;r 22 lkxj is'kk �vkmV gkml� ds fuoklh gSa vkSj ekuuh; loksZPp U;k;ky; ds vkns'kkuqlkj mUgsa csn[ky ugha fd;k tkuk pkfg, A"

30. It also appears from record that on 1.10.1999 the Court of Prescribed Authority directed Sri Jagdish Prasad to file an affidavit in support of the averments made in the application giving date of death of the persons shown in the application of the landlord and mentioned in paragraph 7 of the affidavit along with application of Sri Jagdish Prasad  dated 11.10.1999. The information was furnished by Sri Jagdish Prasad. The landlord filed counter to the affidavit in which paragraphs 6,7,8 and 9 of the affidavit were replied in paragraph 11 as under :-

" 11. That paragraphs 7,8 and 9 of the affidavit as they stand are wrong and denied. Since the forefather of the unauthorized occupants themselves were not parties and no regular proceeding for adjudication of legal rights was pending there was no necessity for substitution at all and all persons found in occupation are liable for eviction only then the release order shall stand executed irrespective of who is in possession. It is only execution proceeding."

31. It was further stated that opposite parties no. 10,12,14,15 to 19 had died and others who were living in the outhouses may not be evicted in the circumstance.

32. It may be noted that accommodation from which they say they were being evicted or dispossessed has been described as House No. 16, M.G. Marg. Paragraph 8 of the affidavit mentions that the petitioners were the heirs of opposite parties 10 to 22 who had died.  In paragraph 9 of the affidavit all that they say is that opposite parties no. 10 to 22 are residents of the servant quarters. No right in respect of the accommodation has been shown in the affidavit (Annexure C.A 22 to the main Counter Affidavit).  Thereafter, the petitioners somehow or the other managed to obtain a direction from the Commissioner, Allahabad Division to the Senior Superintendent of Police not to evict the petitioners till 4.10.1999.  

33. Another application dated 4.10.1999 was moved by aforesaid Sri Jagdish Prasad inter alia stating therein that he was in legal occupation of the outhouse and may not be dispossessed.

34. The aforesaid two applications with affidavits moved by Sri Jagdish Prasad were contested by the landlord by filing counter affidavit dated 5.10.1999 stating therein that the disputed building had been released long back and the order of release had been affirmed by the High Court as well as the Apex Court; that the objector was a person claiming his right of occupation under the main tenant, ''The Barnetts', who have already left India, as such, he was not a necessary party and no notice was required to be issued to him as Section 23 of the Act which clearly contemplates delivery of possession to the landlord after eviction of any person found in occupation of the premises.  

35. After hearing the parties the Prescribed Authority rejected the recall application M.P.A No. 18/99 of Sri Jagdish Prasad vide order dated 5.10.1999 holding that the release order had attained finality and the applicant- Sri Jagdish Prasad had not stated in his application as to in which capacityt he was residing in the disputed accommodation and what was his legal right to retain the said accommodation in his possession. The relevant extract of the order dated 5.10.1999 is as under :-

"        mHk; Ik{ksak dks lquk ,oa Ik=koyh dk voyksdu fd;k A ,e0ih0,0 18@99 esa iz'uxr vkns'k fnukad 21-9-99 dks bl vk'k; dk ikfjr fd;k x;k gS fd iz'uxr edku la[;k &16 egkRek xkW/kh ekxZ bykgkckn esa tks eq[; fdjk,nkj dh rjQ ls foi{khx.k vc Hkh vkmV gkml esa jg jgs gSa mUgsa fjyht vkns'k ds vuqikyu esa csn[ky fd;k tk, A foi{kh dh ;g vkifRr lgh gS fd og ih0,0 eqdnesa esa Ik{kdkj ugha Fks] fof/kd #Ik ls ih0,0 eqdnesa esa Ik{kdkj flQZ eq[; fdjk,nkj dks gh cuk;k tkrk gS A ftlesa foi{kh la[;k 1 rk 9 eq[; fdjk,nkj Fks tks eq[; Hkou esa gksVy pykrs Fks] fjyht vkns'k ekuuh; loksZPp U;k;ky; ls iq"V fd;k tk pqdk gS A eq[; fdjk,nkj usa edku [kkyh djds dCtk Hkh ns fn;k gS A foi{khx.k lkxjis'kk leqnk; dh gSa] teknkj o lQkbZdehZ gSa A   iz'uxr vkns'k fnukad 21-9-99 lE;d #Ik ls iwjs Ik=koyh dks ns[kdj fof/kd #Ik ls ikfjr fd;k x;k gS A /kkjk 23 ,DV uEcj 13 lu 72 ds vUrZxr foi{khx.k dks uksfVl nsus dh vko';drk ugha gS d;ksafd ;g vukf/kd`r v/;klh gS A foi{khx.k 10 rk 22 esa ls dbZ yksx ej x;s gSa A ;g rF; foi{kh usa crk;k A rduhdh n`f"Vdks.k ls izkFkhZ usa ;g xyr fd;k gS fdUrq /kkjk 23 dk dk;Zokgh btjk dh dk;Zokgh ekuh tkrh gS vkSj btjk dk dk;Zokgh esa vcsV gksus dk iz'u vkns'k 22 fu;e 12 lh0ih0lh0 ds izkfo/kku ds rgr ugha gksrk gS a ;g Lohd`r rF; gS fd foi{kh vukf/kd`r v/;klh ghjk yky dk ikS= gS A foi{kh usa viuh vkifRr esa ;g dgha ugha crk;k gs fd og iz'uxr edku esa fdl gSfl;r ls jg jgk gS A tks bl ckr ij cy nsrk gs fd foi{kh txnh'k izlkn iz'uxr Hkou esa vukf/kd`r v/;klh ds #Ik esa jg jgk gS ftls fjyht vkns'k ds vuqikyu esa loksZPp U;k;ky; Onkjk iq"V fjyht vkns'k ds vuqikyu esa csn[ky djok;k tkuk U;k;laxr o lehphu gS vkSj vkns'k fnukad 21-9-99 fof/kd #Ik ls ikfjr fd;k x;k gS] 'kwU; ugha gS vkSj fjyht fd;s tkus ;ksx; ugha gS A foi{kh dh rjQ ls xksiky d`".k flUgk cuke LVsV vkQ ;w0ih0 ij cy fn;k x;k gS tks iz'uxr Hkou ls lEcfU/kr ugha gS cfYd utwy tehu ls lEcfU/kr gS A izkFkhZ dh rjQ ls lqjs'k pUnz tSu cuke r`rh; vij ftyk tt eFkqjk ,0vkj0lh01999 �1� ist 116ij cy fn;k x;k gS ftlesa ;g vfHkfu/kkZfjr fd;k x;k gs fd mi fdjk,nkj ftls dksbZ Lora= vf/kdkj ugha izkIr gS] mldks vkifRr nkf[ky djus dk gd ugha izkIr gS A jke fcgkjh yky JhokLro cuke iw.kkZ nsoh ;w0ih0vkj0lh0lh0 1986 ist 187 ij cy fn;k x;k gs ftlesa ;g vfHkfu/kkZfjr fd;k x;k gS fd eq[; fdjk,nkj dh fdjk,nkjh lekIr gksus ds Ik'pkr mi fdjk,nkj dh fdjk,nkjh Lor% lekIr gks tkrh gSA eq[; fdjk,nkjh ds fo#) csn[kyh dh fMdzh ds vuqikyu esa mi fdjk,nkjh fu"iknu esa csn[ky dj fn;k tk,xk A oekZ lsy cuke [kktk fo/kkr ,0vkbZ0vkj0 1988 lqizhe dksVZ ist 1470 ij cy fn;k x;k gS blesa ;g mYys[k fd;k x;k gS fd lcyslh dks uksfVl fn;k tkuk vko';d ugha gS A

      mijksDr fofu.kZ; ,oa foospuk dk vk/kkj ij esjs fopkj ls iz'uxr vkns'k fnukad 21-9-99 u rks ealw[k fd;s tkus ;ksX; gS vkSj u gh fdz;kUo;u LFkfxr fd;s tkus ;skX; gS vksj u gh n[ky ijokuk okil eaxok;s tkus ;ksX; gsA e`rd ds tks Hkh mRrjkf?kdkj iz'uxr vkokl esa feys] mUgsa vko';d cy iz;ksx djds iz'uxr edku ls csn[ky fd;k tk, ftlls ekuuh; loksZPp U;k;ky; Onkjk iq"V fjyht vkns'k dk fdz;kUo;u lqfuf'pr fd;k tk lds A bl rjg izkFkZuki= 11&ch fujLr fd;s tkus ;ksX; gsA

                      vkns'k

       izkFkZuk Ik= 8&ch ,oa 11&ch Onkjk txnh'k izlkn fujLr fd;k tkrk gSA Ik=koyh 1 fu;r frfFk dks is'k gks A

fnukad 5-10-99                     g0 gLi"V

                               �vks0ih0 f=ikBh�

                       fu;r izkf/kdkjh] lire ,0lh0ts0,e0"

36. The writ petition has been filed challenging the validity and correctness of the order dated 21.9.1999 passed by the Prescribed Authority directing for enforcement of the release order against the petitioners in respect of the portion, in dispute, of the premises no. 16, M.G. Marg, Civil Lines, Allahabad  praying for the following reliefs :-

(i) Issuance of a writ, order or direction in the nature of certiorari quashing the impugned order dated 21.9.1999 passed in MPA No. 18 of 1999 Brij Kishor Tandon V. N.S. Dutta and others (Annexure 1 to the writ petition)

(ii) Issuance of writ, order or direction in the nature of mandamus directing the respondents to comply with the directions contained in the orders passed by the High Court and Supreme Court in Purshottam Das Tondon's case (Annexures 4 and 9 to the writ petition) and

(iii) Issurance of any other writ, order or direction as may be deemed fit and proper.

37. From the prayer aforesaid made in the writ petition, it is apparent that the petitioners have concealed the order dated 5.10.1999 and had initially not challenged the same.  Hence, by amendment application in the writ petition in October 1999 it was prayed that the order dated 5.10.1999 be quashed.  The following ad-interim order was passed in the writ petition on 8.10.1999:-

"Hon'ble S. Harkauli, j

Issue notice.

Till 15.11.1999 the petitioners will not be evicted from the accommodation which are occupied by them in the proceedings under Section 23 of the Act unless modified or vacated earlier.

Dt. 8.10.99                                                  Sd/- illegible"

 

Contentions of Counsel for the petitioners

        38. Before start of the arguments, the counsel for the petitioners submits that he has moved an application praying for deletion of names of S/Sri Azad Ali, Om Prakash, Mani Lal, Shanti Devi, Jagdish Prasad and Mohd. Akbar, petitioner nos. 11,12,14,15,16 and 20 respectively from the array of parties.  The application is allowed and aforesaid petitioners are deleted from the array of parties.  

         39. The counsel for the petitioners then submits that  he is making three fold submissions in the writ petition (i) that the petitioners are in Permissive Possession and cannot be evicted without notice and opportunity under Section 23 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (ii) the landlord has no right to recover possession in view of provisions of Limitation Act and the law settled by the Courts, AND (iii) the petitioners have a right to continue in occupation as they have matured their rights by adverse possession.

40. The first contention of the counsel for the petitioners is that the petition has been filed on the basis of Permissive Occupation, i.e. with the permission of Mr. George Henery Barnett, a tenant in the premises, in question, much before 1947. Reference in this regard has been made to paragraph no.8 of the rejoinder Affidavit.  

41. It is stated that after the premises was allotted in favour of Sri N.S. Dutta and Mrs. Nirmala Verma, an outhouse in the premises was allotted by order dated 31.10.1957 by the Rent Control and Eviction Officer in favour of Smt. K. Zinke,  It is further stated that thereafter Smt. K. Zinke expired. At the time release order was put into execution her son Sri Eugine  was also being evicted under the order dated 1.5.1982 hence he also joined in the application dated 17.5.1984 and in the writ petition as petitioner no. 19 who made available the correspondence regarding allotment and letters between Smt. K. Zinke and the landlord regarding default in payment etc. These have been filed by the counsel for the petitioners along with Supplementary Affidavit in support of his contention that the other petitioners were also occupying the servant quarters and the outhouses in permissive capacity in premises no. 16 M.G. Marg, Allahabad.

42. It is next urged that the petitioners have been denied opportunity of notice and hearing before passing of the impugned order of eviction under Section 23 of Act No. XIII of 1972.  It is stated that as the petitioners were neither made a party to the release application by the landlord nor there is any finding in the judgment of the Prescribed Authority that the petitioners were inducted by the allottee-tenants Mr. N.S. Dutta and Mrs. Verma hence, in such a situation the petitioners cannot be ejected without being afforded an opportunity of hearing as they are being visited by civil consequences in execution of release order passed against the aforesaid allottee-tenants.

43. He then urged that an order under Section 21 of the Act can be enforced under Section 23 of the Act only against the person against whom it has been passed or against a person who has been inducted in possession of the outhouses and servant quarters or any portion of the building by the tenant of the premises against whom release application under Section 21 of the Act was filed. It is submitted that in the instant case, the petitioners were not inducted in possession by the allottee-tenants Mr. N.S. Dutta (including his heirs and Mrs. Verma against whom release application was filed. The petitioners were in possession much before the allotment of the building in favour of Mr. Dutta and Mrs. Verma. It is stated that there is no specific allegation in the release application that the petitioners were ever inducted by the aforesaid tenants.

  44. The counsel for the petitioners placed reliance upon paragraph 12 of the decision in State of Gujarat Vs. Patel Raghav Natha and others- AIR 1969 S.C-1297, wherein the Court considered the question of reasonable time where it is not provided is as under:-

" 12. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under Section 211. Under Section 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months, the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector."

45. The counsel for the petitioners then placed reliance on paragraph 2 of the decision in Chakki Lal Vs. IIIrd Additional District Judge, Mainpuri and others-  AIR 1977 Allahabad- page 8 which was a case of sub-letting. Relevant extract of paragraph 2 of the aforesaid decision is as under :-

       " Even in a case of sub-letting as aforesaid, I am of opinion that since no decree for ejectment of a tenant on the ground of bona fide need of the landlord can be passed under Section 20 it would still be open to the landlord not to file a suit under Section 20 but to make an application under Section 21 provided he needs the accommodation bona fide for his own use.  In such a case a decree under Section 20 would serve no purpose unless the landlord after getting the tenant evicted succeeds in getting the building released in his favour and for that he will again have to make an application for release, of course, in that event under Section 16 and not under Section 21 of the Act. If, on the other hand, an order for release is passed under Section 21 on the ground that the accommodation is needed by the landlord bona fide such sub-tenant would automatically be ejected along with his tenant under Section 23 of the Act. In this way multiplicity of proceedings would be avoided."

  46, The aforesaid decision was affirmed by the Division Bench in Hukum Singh V. The P.A. Muzaffarnagar and others-1981 ARC- page 6 wherein it has been held that in execution of release order under Section 21, only those persons, other than tenant, who were inducted in possession by the tenant either as sub-tenant or in any other capacity and who were made party in the release application by the landlord, can be ejected.        II Limitation :  

47. On the question of limitation, the counsel for the petitioners submits that as limitation of 12 years w..e.f. 1.6.1954 to 11.3.1995 since determination of tenancy has expired, the right of the landlord to recover possession from the tenant expired under Section 2-J and Section 3 read with Schedule V Part V Entry 67 of the Limitation Act.

48.  He urged that that as the majority of petitioners were inducted in possession by Mr. Barnetts before 1947 who ceased to have any right, title or interest in the disputed property w.e.f. 25.4.1947 as his tenancy stood determined, the petitioners cannot be, therefore, evicted under Section 23 of the Act in pursuance to an order of release made against the subsequent tenant-allottees- Mr. N.S. Dutta and Smt. Nirmala Verma.  Reliance has been placed by the counsel for the petitioners upon the judgment rendered by Hon'ble Supreme Court in The Kerala State Electrictiy Board Trivandrum V. T. P. Kunhaliumma-AIR 1977 SC-282 followed in the judgment rendered in Union of India V. M/s Momin construction Company-A.I.R. 1995 SC-1927 overruling its earlier view reported in Town Municipal Council Athani V. Presiding Officer, Labor Court Hubli and others-AIR 1969 SC-1335 that Article 137 of Limitation Act prescribing limitation of three years for any other application applies to all sorts of applications whether made under the provisions of Code of Civil Procedure or other Act. In view of said decision, limitation of three years applies to applications under Section 23 of the Rent Control Act also.  Instant application having been filed after 14 years is clearly barred by limitation.   It is stated that the Hon'ble Supreme Court in Dindayal and another V. Rajaram-AIR 1970 SC-1019 has held that principle underlying Section 27 of Limitation Act 1963 is of general application and is not confined to suits and applications only for which period of limitation is prescribed under the Limitation Act and also to suits to which limitation is provided in other Acts. He urged that that as the majority of petitioners were inducted in possession by Mr. Barnetts before 1947 who ceased to have any right, title or interest in the disputed property w.e.f. 25.4.1947 as his tenancy stood determined, the petitioners cannot be, therefore, evicted under Section 23 of the Act in pursuance to an order of release made against the subsequent tenant-allottees- Mr. N.S. Dutta and Smt. Nirmala Verma.  Reliance has been placed by the counsel for the petitioners upon the judgment rendered by Hon'ble Supreme Court in The Kerala State Electrictiy Board Trivandrum V. T. P. Kunhaliumma-AIR 1977 SC-282 followed in the judgment rendered in Union of India V. M/s Momin construction Company-A.I.R. 1995 SC-1927 overruling its earlier view reported in Town Municipal Council Athani V. Presiding Officer, Labor Court Hubli and others-AIR 1969 SC-1335 that Article 137 of Limitation Act prescribing limitation of three years for any other application applies to all sorts of applications whether made under the provisions of Code of Civil Procedure or other Act. In view of said decision, limitation of three years applies to applications under Section 23 of the Rent Control Act also.  Instant application having been filed after 14 years is clearly barred by limitation.   It is stated that the Hon'ble Supreme Court in Dindayal and another V. Rajaram-AIR 1970 SC-1019 has held that principle underlying Section 27 of Limitation Act 1963 is of general application and is not confined to suits and applications only for which period of limitation is prescribed under the Limitation Act and also to suits to which limitation is provided in other Acts.

  49.  He also placed reliance in paragraph 2 of the decision in Mohd. Kavi Mohd. Amin V. Fatma Bai Ibrahim -(1997)6 SCC-71 wherein it has been held that :-

"2.   Although Mr. Basme, learned counsel appearing for the appellant took a stand that under Section 63 of the Act aforesaid, there should not be any discrimination amongst the agriculturists with reference to the State to which such agriculturist belongs.  Bur according to him even without going into that question the impugned order can be set aside on the ground that suo motu power has not been exercised within a reasonable time. Section 84-C of the Act does not prescribe any time for institution of the proceeding.  But in view of the settled position by several judgments of this Court that wherever a power is vested in a statutory authority without prescribing any time limit, such power should be exercised within a reasonable time. In the present case the transfer took place as early as in the year 1972 and suo motu enquiry was started by the Mamlatdar in September, 1973.  If sale deeds are declared to be invalid the applicant is likely to suffer irreparable injury, because, he has made investments after the aforesaid purchase. In this connection, on behalf of the appellant reliance was placed on a judgment of Justice S.B. Majmudar (as he then was in the High Court of Gujarat) in State of Gujarat v. Jethmal Bhagwandas Shah- Spe. W.A. No. 2770 of 1979 disposed of on 1.3.1990, where in connection with Section 84-C itself it was said that the power under the aforesaid Section should be exercised within a reasonable time.  This Court in connection with other statutory provisions, in the case of State of Gujarat V. Patil Raghav Natha - (1969)2 SCC-187 and in the case of Ram Chand V. Union of India (1994)1 SCC-44 has impressed that where no time limit is prescribed for exercise of a power under a statute it does not mean that it can be exercised at any time; such power has to be exercised within a reasonable time. We are satisfied that in the facts and circumstances of the present case, the suo motu power under Section 84-C of the Act was not exercised by the Mamlatdar within a reasonable time. Accordingly, the appeal is allowed. The impugned orders are set aside. No costs."

 

50. Reliance has also been placed in this regard upon the decision in Ram Chand V. Union of India- (1994)1 SCC- 44 connected with Ved Prakash and others V. Union of India and others  wherein it has been held that where no time limit is prescribed for exercise of a power under a statute it does not mean that it can be exercised at any time; such power has to be exercised within a reasonable time.

51. Counsel for the petitioners further concludes his arguments on limitation submitting that in view of the decisions by Hon'ble the Apex court that Article 137 of the Limitation Act prescribes limitation of three years and for filing any sort of application, whether made under the provisions of Code of Civil Procedure or any other Act. Thus, limitation of three years applies to applications under Section 23 of the Rent Control Act also and that as application was filed by the landlord having been filed after 14 years is clearly barred by limitation hence the right of the landlord for possession of the property, in the circumstances, stood extinguished and in view of the law above, after three years in view of Section 27 of the Limitation Act.

III Adverse Possession/ Perfection of Right:

52. The counsel for the petitioners contended that the matter may be looked at from a different angle of adverse possession also i.e. after vacation of the main hotel by Mr. Barnett, he ceased to have any right or interest in the property in their occupation of the petitioners as they had been inducted in possession by him. Thus, the possession of the petitioners became clearly adverse to the landlord as well as new tenants Mr. Dutta and Mrs. Verma and after expiry of 12 years, i.e. in 1959, the landlord or the tenant Mr. Dutta and Mrs. Verma lost every remedy to eject the petitioners and by virtue of their adverse possession in view of Article 27 of the Limitation Act.

53. In the alternate, he argued that after passing of the ejectment order under Section 21 against the allottee-tenants, possession of the petitioners also became adverse and they matured their title under Article 27 of the Limitation Act. In this regard, he urged that reference may be made to the judgment of the Apex Court in Ajeet Chopra V. Sadhu Ram and others- AIR 2000 SC-212 wherein it has been held inter alia  that after expiry of 12 years and the period granted to the tenants to vacate, title of the tenant is matured under Article 64 of the Limitation Act through adverse possession.

Contentions of Counsel for the respondent

54. Before rebutting the arguments raised by counsel for the petitioners, the counsel for the respondents sought permission of the Court to bring to its notice certain material aspects of the case, which according to him have been concealed or not placed in their proper context by counsel for the petitioners

55. In this regard, he submits that the petitioners have claimed that they came in possession over the servant quarters about 100 years before when their ancestors were inducted by previous tenants of Barnett Hotel - Mr. Barnett and/or his predecessor-in-interest, which is not borne out from the pleadings of the writ petitioner or the pleadings before the Executing court.  

56. It is stated that admittedly the premises was let out to Barnetts in 1929 by the landlords and the petitioners or their predecessors could not be in possession of the outhouses for more than 100 years claiming it through alleged permissive occupation of the Barnetts and it is for the first time that this contention has been raised by the counsel for the petitioners during the course of arguments now in the writ petition.

57. He states that premises no. 16 M.G. Marg (now renumbered as 118 M.G. Marg) consisted of main building, several servant quarters and outhouses. The entire premises was let out by the landlord to Mrs. Nirmala Verma and Sri N.S. Dutta under the allotment order dated 25.4.1947 (copy whereof is contained in Annexure C.A.-1 to the Counter Affidavit). The release application was filed in respect of building No. 16 M.G. Marg without excluding any portion and a bare perusal of the same indicates that the release of the entire building which had been allotted in 1947 had been sought by the landlord.  

58. It is urged that the occupants of the servant quarters and out-houses had no independent legal status of their own for occupation but were residing there as employees or servants or staff of Barnett Hotel of either of the tenants i.e. Mr. Barnett or the allottee-tenants- Mr. N.S. Dutta and Mrs. Nirmala Verma. The release application against the allottee-tenants for release of entire premises - 16 M.G. Marg, Allahabad was allowed by the Prescribed Authority vide order dated 1.5.1982 and was upheld by the High Court as well as by the Apex Court as such, the contention of counsel for the petitioners that the release application was confined only to the main building of the hotel and did not include the servant quarters in which the petitioners were residing is incorrect.

59. He submits that the copy of the release application filed by the petitioners as Annexure 2 to the writ petition is not the true copy. The correct copy of the release application has been filed as Annexure C.A-2 to the Counter Affidavit. It is stated that in  the said true copy of the application filed by the petitioners they have deliberately left out the prayer portion of the application after paragraph 32 of the application to mislead the Court in which it was clearly stated that the building no. 16 M.G. Marg, in dispute, may be released in favour of the applicant.

60. The counsel for the respondents then referred to definition of building  defined in Section 3(i) of the Act. Relying upon the definition, he submits that the word ''building' has been defined in Section 3(i)  of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)Act, 1972. It is an exhaustive definition and includes land appurtenant as well as outhouses. It is urged that since "building" means a residential or non-residential roofed structure and includes-

(i) any land (including any garden), garage and out-houses, appurtenant to such building;

(ii) and furniture supplied by the landlord for use in such building;

(iii) any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof:

the building in release order means includes land and the outhouses in occupation of the petitioners in the premises no. 16 M.G. Marg, Allahabad.

61. It is also stated by him that from the record it is apparent that the landlord had filed application Misc. P.A. Case no. 29 of 1983, under Section 23 of the Act for enforcement of the eviction order. The Prescribed Authority vide order dated 16.5.1984 directed that Sri N.S. Dutta and others as well as other persons claiming through them be evicted and possession of entire premises no. 16 M.G. Marg be delivered to the landlord.  The landlord was, however, put into actual possession of only the main building excluding the servant quarters and outhouses on 17.5.1984. It is stated that the petitioners also filed an application submitted by 21 persons before the Court of Rent Control and Eviction Officer, Allahabad in respect of the building No. 16 M.G. Marg clearly mentioning that they had been residing in the back portion of the building in different outhouses on behalf of the Barnett Hotel and though the possession of the main building had been given to the landlord on that date by use of Police force, but on their request the landlord had given them permission to reside as licensee for some days.   A report was submitted by the Police on 19.5.1984 that partial possession of the building had been delivered to the landlord.  On the same day, i.e. 19.5.1984, an application appended as Annexure C.A.6 to the Counter Affidavit was filed by the landlord before the Prescribed Authority making reference to the report of the Police regarding partial possession having been given to the landlord but complaining that the landlord had not been given possession of certain portion in possession of Nav Bharat Times and out-houses and further stating that the landlord had not consented to any person remaining in possession in the building or in any portion thereof. Thus the claim of the petitioners that they were not residing in the outhouses on behalf of the Barnett Hotel is absolutely incorrect.  

62. The counsel for the respondents next submits that the petitioners knew throughout that they were bound by the eviction order under Section 21 of the Act which was being enforced under Section 23 of the Act hence they prayed vide application dated 17.5.1984 for grant of some time be given to them to vacate the premises and at no point of time did they ever contend, and indeed, they could not do so, that they were not bound by the eviction order passed under Section 21 of the Act as the said order related to the main building only excluding the outhouses and servant quarters as such in the circumstances the case now argued by the counsel for the petitioners is completely against the records of the case.

63. The learned Senior counsel for the respondents then submits that it is apparent from the records that the 13 persons mentioned in the report of the Police were impleaded as opposite parties no. 10 to 22 in the application dated 11.8.1999 filed by the landlord out of the order on the application against which the present writ petition arises. He states that the Prescribed Authority recorded a specific finding in its order dated 15.3.1985 that from the documents it is clear that the persons residing in the outhouses and the servant quarters were the employees of erstwhile Barnett Hotel.  It is also apparent from the aforesaid order that the premises no. 16-M.G. Marg, Allahabad had been finally released in favour of the landlord as such it was appropriate that the possession of the servant quarters and outhouses of the said premises be also given to him. It is stated that the Court rightly and finally allowed the application vide order dated 15.3.1985 directing the Police to deliver the possession of the outhouses and servant quarters and submit the report by 25.3.1985 in the circumstances of the case.

 64. It is urged that the aforesaid order dated 15.3.1985 became final and was not challenged by the petitioners at any stage, though the petitioners were fully aware of the proceedings for eviction before the Prescribed Authority under Section 23 of the Act because when they were to be evicted by use of Police force on 17.5.1984 they themselves submitted an application that on their request the landlord had permitted them to stay for some time and so they may not be evicted. It is, therefore, not open to them, in these circumstances, to contend that they were not liable to be evicted in pursuance to the eviction order passed under Section 21 of the Act.

65. It is stated that in the present writ petition, an interim order was passed on 8.10.1999 in which there is no mention of the order dated 5.10.1999 at all and only the earlier order dated 21.9.1999 was sought to be quashed. He submits that the petitioners have tried to create an impression after filing of the writ petition that they filed an application before the Prescribed Authority for recalling the order dated 21.9.1999. The petitioners are, therefore, guilty of concealment of material facts and the instant petition is liable to be dismissed on this ground alone.

66. It is urged that it is only subsequently that by means of amendment application the order dated 5.10.1999 has been sought to be challenged and that the orders dated 21.9.1999 and 5.10.1999 passed by the Prescribed Authority which have been impugned in the instant petition are perfectly legal and do not suffer from any infirmity as they only seek to enforce the eviction order and it is not open to the petitioners to resist the possession being given to the landlord pursuant to the release order which had become final upto Hon'ble Supreme Court.

67. The attention of the Court has been drawn to paragraphs 4 and 10 of the writ petition wherein it is submitted that the petitioners have merely averred that they were residing in the outhouses and, therefore, have no concern with the release of the main building. In paragraph 8 of the petition, they have stated that the premises was neither a part of the original order nor there was any direction from the court and that, apart from Hotel Barnett, the outhouses may also be released. Conveniently, the petitioners have not stated as to in what capacity they were residing in the outhouses/servant quarters. Even the Prescribed Authority while passing the order dated 5.10.1999 under Section 23 of the Act has observed that it has not been stated at all as to in which capacity Sri Jagdish Prasad and others were residing in the accommodation.

68. In paragraph 10 of the rejoinder affidavit it has been averred that the outhouses were never claimed by the landlord and a reference has been made to a map, it is stated that since this fact had been stated for the first time in the rejoinder affidavit, a supplementary affidavit was filed by the landlord wherein it was stated that the map had been filed by Sri N.S.Dutta along with the application dated 11.5.1984 in connection with the proposed compromise. The map was filed before the Prescribed Authority along with the compromise application by Sri N.S. Dutta, the tenant but the said compromise was not acceptable to the landlord-respondent, since adjudication ever took place regarding the map which was never a subject matter of the case either before the Prescribed Authority or at any stage before the High Court or Supreme Court.

69. On the basis of above averments in paragraphs 4 and 10 of the writ petition, it is urged that the petitioners have taken contrary stand in respect of their claim.

70. Again, referring to paragraph 14 of the rejoinder affidavit, wherein it has been stated that the landlord himself surrendered the portion of the land on which these outhouses had been built and, therefore, he cannot revert back and claim the same by moving an application under Section 23 of the Act and to paragraph 23 of the rejoinder affidavit wherein it has been stated that the right of the petitioners is protected and their possession cannot be disturbed in view of general mandamus issued by this Court, it is submitted by the counsel for the respondents that presumably the petitioners are making reference to the judgment in Gopal Krishna Sinha and others V. State of U.P. and others given by this Court in the matter of renewal of leases in Civil Lines, Allahabad, a copy of which has been appended as Annexure 4 to the writ petition.

71. Rebutting the arguments raised by counsel for the petitioners on the merits of the case in the writ petition, the counsel for the  respondents submits that so far as question of enforcement of release order under Section 23 of the Act is concerned, the petitioners, who had been residing in the outhouses/servant quarters were the servants of the tenant against whom the release order had been passed under Section 21 of the Act.  The release order under Section 23 of the Act could be enforced against persons whom an order has been made under Section 21 of the Act or against any other person found in actual occupation, for putting the landlord into possession. The petitioners were, therefore, liable to be evicted, as has been held in the order dated 15.3.1985, passed by the Prescribed Authority. The sub-tenants/licensees are legally bound by the orders passed against the main tenant.

72. With regard to limitation, counsel for the respondents submitted that in the first instance Section 23 of the Act does not provide any limitation for enforcing an eviction order even though specific periods are prescribed under Sections 10,18 and 22 of the Act for filing appeals and revisions. Under Section 35 of the Act and only three Sections of the Limitation Act, namely, Sections 4,5 and 12 have been specifically made applicable.

73. In support of his above contentions, he relied upon the decision rendered in Uttam Namdeo Mahaley V. Vittal Deo and others- 1997 SCBFRC-349 wherein the Supreme court considered almost identical provisions of Mamlatdars' Courts Act, 1906. In Section 5 of the Mamlatdars' Courts Act, power has been given to every Mamlatdar to give immediate possession of any land or premises while Section 21 of the said Act provides for giving effect thereto of the order by issuing such orders to the village officers, or to any subordinate under his control or otherwise, as he thinks fit. Section 5 of the Mamlatdar's Courts Act, 1906 placed by him in support of his above contention, is as under :-

"5(i) Every Mamlatdar shall preside over a Court, which shall be called a Mamlatdar's Court and which shall, subject to the provisions of Section 6 and 26 have power, within such territorial limits as may from time to time be fixed by the State Government-

(a) to remove or cause to be removed an impediment, erected otherwise than under due authority of law, to the natural flow in a defined channel or otherwise of any surface water naturally rising in or falling on any land used for agriculture, grazing, trees or crops, on to any adjacent land, where such impediment causes or is likely to cause damage to the land used for such purpose or to any such grazing, trees or crops thereon;

(b) to give immediate possession of any lands or premises used for agriculture or grazing or trees, or crops or fisheries, or to restore the use of water from any well, tank, canal or water-course, whether natural or artificial used for agricultural purposes to any person who has been dispossessed or deprived thereof otherwise than the course of law, or who has become entitled to the possession or restoration thereof by reason of the determination of any tenancy or other right of any other person, not being a person who has been a former owner or part-owner, within a period of twelve years before the institution of the suit of the property or use claimed, or who is the legal representative of such former owner or part owner :

Provided that, if in any case the Mamlatdar considers it inequitable or unduly harsh to remove or cause to be removed any such impediment or to give possessionof any such property or to restore any such use to a person who has become entitled thereto merely by reason of the determination of any such tenancy or other right or if it appears to him that such case can be more suitably dealt with by a Civil Court, he may in his discretion refuse to exercise the power aforesaid, but shall record in writing his reasons for such refusal.

(2) The said Court shall also, subject to the same provisions, have power within the said limits where any impediment referred to in sub-section (i) is erected, or an attempt has been made to erect it, or when any person is otherwise than by due course of law disturbed or obstructed or when an attempt has been made so to disturb or obstruct any person, in the possession of any lands or premises used for agriculture or grazing, or trees, or crops or fisheries or in the use of water from any well, tank, canal or water course, whether natural or artificial used for agricultural purposes, or in the use of roads or customary ways thereto to issue an injunction to the person erecting or who has attempted to erect such impediments or causing, or who has attempted to cause such disturbance or obstructions, requiring him to refrain from erecting or attempting to erect any such impediment or from causing or attempting to cause any further such disturbance or obstruction.

(3) No suit shall be entertained by a Mamlatdar's Court unless it is brought within six months from the date on which the cause of action arose

(4) The cause of action shall be deemed to have arisen on the date on which the impediment to the natural flow of surface water or the dispossession deprivation or determination of tenancy or other right occurred or which the impediment, disturbance or obstruction, or the attempted impediment or disturbance or obstruction, first commenced."

 

74. After dealing with aforesaid Section 5 of the Malmatdar Courts Act, the Supreme court held in the case of Uttam Namdeo Mahaley (supra) that the order of ejectment against the appellants having become final and no limitation having been prescribed under Section 21 of the Act within which the order needed to be executed, the necessary implication is that the law of limitation provided in the Limitation Act stands excluded. It was further  held that the High Court was, therefore, right in holding that since no limitation had been prescribed, the order could be executed at any time.  In the aforesaid case, the execution was sought to be enforced after more than 12 years of the passing of the order for possession under Section 5 of the Mamlatdars Courts Act.

75 On the strength of the above decision rendered by the Apex Court it is submitted that even under Section 23 of  Act No. XIII of 1972, no limitation has been prescribed within which the order for eviction should be enforced and in the absence of any such limitation, the order can be executed at any time and as such the petitioners are not correct in contending that the provisions of the Limitation Act apply as the Legislature in its wisdom has made only Sections 4,5 and 12 of the Limitation Act applicable  to Act No. XIII of 1972, hence, by necessary implication, the remaining provisions of the Limitation Act will not apply to it. It is further contended that such a provision does not exist in the Acts referred to in the aforesaid three cases cited by the counsel for the petitioners.

76. He contended that the cases cited by the petitioners, namely, The Kerala State Electricity Board Trivandrum (supra); AIR 1997 SC-282, Union of India V. M/s Momin Construction Co. (supra) and Dindayal and another (supra) have no application to the facts of the present case. Case and submits that Uttam Namdeo Mahaley  (supra) is squarely applicable to the present case wherein afroresaid cased relied upon by the counsel for the petitioners have been specifically considered and overruled. That apart, it is submitted that the said three cases hold that the application has to be submitted before a Civil Court. He states that the case of the landlord is that the Prescribed Authority under Section 23 of the Act is not a Civil Court and is merely an authority to enforce the eviction order passed under Section 21 of the Act. It is urged that Section 34(1) of the Act provides that the District Magistrate, the Prescribed Authority or any appellate authority or revising authority shall for the purposes of holding any enquiry or hearing any appeal or revision under the Act have the same powers as are vested in the Civil Court when trying a suit in respect of the matters enumerated in various Sub-Sections including appeal under Section 22 of the Act but the Prescribed Authority does hold an enquiry and nor does it hear any appeal or revision under Section 23 of the Act and as such, he cannot be termed as a Civil Court for the purpose of Section 23 of the Act.  It is further urged that likewise even under Section 34(2) of the Act, since the Prescribed Authority is neither holding any enquiry or hearing any appeal or revision, it cannot be deemed to be a Civil Court.

77. The landlord filed the application under Section 23 of the Act in 1983 which application was registered as P.A Case no. 29 of 1983.  Since only partial possession was given to the landlord another application dated 19.5.1984 was filed by him for giving possession of the outhouses and servant quarters. The Prescribed Authority by an order dated 15.3.1985 directed the Police to deliver possession to the landlord of the servant quarters and the outhouses.

78. As regard issue of the application being consigned to records on the statement of the counsel for the landlord, he submits that when the matter was taken up by the Prescribed Authority on 9.9.1985 when it was noticed by the counsel that steps had not been taken by the landlord and in that event the counsel for the landlord prayed that the application may be consigned to record.  Accordingly, the Prescribed Authority ordered the application to be dismissed and consigned to records and was not decided on merits.

79. It is stated that as the eviction order had till then not been completely enforced, in as much as possession of the outhouses and servant quarters had not been delivered to the landlord, in these circumstances, an application dated 11.8.1999 was submitted by the landlord for revival/continuance of the earlier application which was filed within time. It is urged that the nature and character of the application did not change and it was in respect of those very premises of which possession had not been given earlier, namely, the outhouses and servant quarters as such the question of the said application being barred by limitation, in the circumstances does not arise, at all.  

80. Reliance in this regard may be made on Full Bench decision of Rajasthan Hitgh Court in Government of Rajasthan and another V. Sangram Singh and another -AIR 1962 Rajasthan-43 wherein a decree was passed by the High Court on 28.4.1941 in exercise of its original civil jurisdiction and on 30.7.1941 an application for enforcement of the decree was filed. On 27.2.1942 the counsel appearing for decree holder did not want to continue the execution proceedings and on his request it was consigned to record. After expiry of the alleged period of limitation, the State of Rajasthan applied for execution of the aforesaid decree against the judgment debtor. One of the objections raised by the judgment debtor against the execution of the decree was that the execution application was barred by time.  The Civil Judge  held that the application for enforcement of the decree was barred by time and dismissed it.  Against that order, an appeal was filed by the State before the High Court wherein in paragraph 8,  the Full Bench posed the question whether the application filed by the decree holder could be considered to be an application for revival of the execution application disposed of by the High Court on 27.2.1942. the Full Bench answered the said question in paragraph 28 that the order clearly showed that the counsel appearing on behalf of the decree holder did not want to continue his execution proceedings and that on his request it was consigned to record. The Court observed that it had rightly been pointed out by the Civil court that operative part of the order is that the application of the decree holder be dismissed as the decree holder did not want to proceed with the case. The first application of the decree holder could not be said to have been consigned to record by the order of the Court. The High Court, therefore set aside the order of the Civil Judge for dismissing the execution application of the decree holder as time barred.  

81. In this connection, he also referred to a decision in Chidambaram Chettiar V. Periyaswamy Chettiar-AIR 1978 Madras-370 wherein the decree was passed on 29.4.1961. An execution petition was filed for sale of the properties and on 31.3.1973, the District Munsif passed an order that since no bidders came for the sale on 28.3.1973 and no steps had been taken, the execution petition may be dismissed. Thereafter on 27.7.1973 the decree holder filed a petition to bring the properties for sale. The said petition was dismissed on the ground that it was barred by limitation.  The High Court in paragraph 3 of the judgment held that if the execution petition is dismissed for statistical purposes, there being no adjudication of the rights of the parties on merits or there being no disposal of the contentions of the parties conclusively, such an order is not final order and must be deemed to be an order passed for statistical purposes. Such being the case, a fresh application filed must be deemed to be one for revival or continuation of the former application.  The Court, therefore, quashed the order of the Court below and ordered that the execution petition shall be disposed of in accordance with law.

82. Reliance has also been placed upon Chattar Singh and another V. Kamal Singh and others-AIR 1927 Allahabad -page 16 wherein the Full Bench has held that there is no prohibition either express or implied for making an application for revival of the execution under the Limitation Act.

83. In view of what has been argued above, he urged that even if it be held that the Limitation Act applies, then too, when the initial application was filed well within time under Section 23 of the Act for enforcement of the release order, the subsequent application is only for continuance/revival of the earlier appliation which had been disposed of.

84. In so far as adverse possession is concerned, he urged that in Dr. Bargava and Company and another V. Shyam Sunder Seth and others-1995(1) ARC-402, Hon'ble the Apex Court has observed that it is settled law that the applicants whose possession was permissive cannot claim title on the basis of adverse possession unless they show specific overt act and assertions on their part that they disclaim the title of the true owner.  It requires a definite overt act and assertions on the part of the appellant.

85. He submits that, in Kamla Prasad and others V. District Magistrate Allahabad and others- 1985(1) ARC- page 473 also it has been held in paragraph 16 that in order to constitute adverse possession, it is necessary to prove by some overt act showing hostility as against the claimant or by denouncing his title openly.

86. Counsel for the respondents then urged that the application under Section 23 of the Act had been filed by the landlord for enforcement of the eviction order well within time and the question of adverse possession dos not arise at all.  In the application filed by the petitioners before the Prescribed Authority, it was stated that though they were liable to be evicted but the landlord had granted them some days time to remain in possession of the outhouses and servant quarters as licensees.  This fact was immediately denied by the landlord in the application dated 19.5.1984 clearly averring that the landlord had not given his consent to any person to remain in possession in the building or any portion thereof. The Prescribed Authority had also passed a detailed order dated 15.3.1985. It is vehemently urged that on aforesaid facts, the petitioners never claimed possession adverse to the landlord and, therefore, the plea of adverse possession is totally  misconceived and such a contention has not even been pleaded in the writ petition.

87. Counsel for the respondents next contended that the petitioner is totally misconceived as the petitioners do not possess any right, whatsoever, under Article 226 of the Constitution to challenge the orders dated 21.9.1999 and 5.10.1999 passed by the Prescribed Authority for enforcing the release order under Section 23 of the Act.  In support of this contention, he placed  reliance on a decision in Ubaidur Rahman V. District Judge, Saharanpur and others-1986(1) ARC-364 and urged that in the said case after the writ petition challenging the release order had been dismissed by this Court, the landlord obtained possession on 27.7.1980.  On the next day, one Amir Ahmad -respondent no. 2 filed a suit for injunction claiming that he was co-partner and on 1.8.1980, he with one Noor Mohd. forcibly took possession of the shop.  In paragraph 3 of the judgment, the Court noticed that Amir Ahmad on his own showing could not claim any right in the shop in dispute. He remained an unauthorized occupant. The Court observed that under Section 23 of the Act empowers the Prescribed Authority to use force, if necessary to evict not only a tenant against whom an order of release under Section 21 of the Act is passed but also a person found in occupation to enable the landlord to obtain possession and it does not debar a person from approaching the Prescribed Authority again for enforcement of the order passed.

88. It has been urged by counsel for the respondent-landlord that there are 20 petitioners. The have not mentioned anywhere either in the writ petition, the rejoinder affidavit or in the affidavit in support of the amendment application, their right, status and capacity in which they were occupying their accommodation in the premises- 16 M.G. Marg released in favour of the respondent-landlords. They have also not mentioned any legal right which entitles them to remain in possession as unauthorized occupants. It is submitted that an occupant of an accommodation, who is not the owner of the same, can claim himself tenant or sub-tenant of the tenant, licensee of the landlord or the tenant of landlord to remain in occupation but the  petitioners have not claimed themselves to be tenant and even if they claim themselves to be sub-tenants, they are liable to be dispossessed in an application under Section 23 of the Act against the tenant without being made party or notice to them. The position in respect of a licensee is also same. Neither the Barnetts' nor Sri N.S. Dutta and others the proprietors of ''Barnett Hotel' after having purchased the shares of the hotel from the erstwhile owner of hotel were ever the owners of the premises including the building no. 16 M.G. Marg, Allahabad or the landlords of the petitioners.

89. The petitioners have claimed in this writ petition that their predecessors were employees of Mr. Barnett and were in possession of the outhouses on his behalf but did they ever pay rent to the Barnetts' is nowhere on record. It is stated that from perusal of Section 23 of the Act it is clear that the Prescribed Authority may use or cause to be used such force as may be necessary for evicting any tenant against whom an order under Section 21 has been passed against any other person found in actual occupation.

90. Concluding his arguments, the learned Senior counsel reiterated that Section 23 of the Act does not provide any limitation for enforcing an eviction order as is provided under Sections 10,18 and 22 of the Act for filing appeal and revision. Limitations have been provided for filing appeals under the aforesaid three Sections and for cetain contingencies in Section 24 of the Act.  Only Sections 4,5 and 12 of the Limitation Act have been made applicable as provided in Section 35 of  Act No. XIII of 1972 .

91. That nowhere in the writ petition or in the amendment application, the petitioners have disclosed their status as to in which capacity they are occupying the premises and that title cannot be perfected under the provisions of the Act No. XIII of 1972 on ground of adverse possession as are being tried to be set up by the petitioners as their possession is not hostile to the landlords. Per contra a contrary plea has now been taken by them that their possession is permissive and in this regard also they have not filed any document before the Prescribed Authority after they were impleased as a party or even in the writ petition.

92. He also urged that it is settled law that no arguments can be raised in the absence of pleadings. In support of this contention, he placed reliance on a decision of Hon'ble Supreme court in Uttar Nam Deo V. Vittham Deo and others-AIR 1997 SC-2695 and that the writ petition relates to judicial review of the order passed by the Court below and no grounds which have not been pleaded either in the objection or in the petition before this Court can be agitated, for the first time, in the writ petition.

CONCLUSIONS:

93. After hearing respective submissions advanced by counsels for the parties and going through the record, the questions that emerge for determination in the instant writ petition are (1) as to whether the petitioners who claim themselves to be sub-tenants/licensees of Mr. George Henery Barnetts were entitled to notices and hearing before passing the order of eviction under Section 23 of Act No. XIII of 1972; (2) whether the claim of the landlord is barred by limitation and (3) whether the petitioners have perfected their rights for occupation of the accommodation by adverse possession?

94. The contention of counsel for the petitioners with regard to permissive occupation of the petitioners except Sri Eugine son of Smt. K. Zinke petitioner no. 19 has no force for the following reasons :

(a) In case of petitionere no. 19, there is an allotment order in  favour of her mother Smt. K. Zinke. Apart from this correspondence is also available on record from the Rent Control and Eviction Officer informing the landlord about the allotment of outhouse, 1- Colvin Road to her as well as of the landlord regarding timely payment of rent not being made by her and her reply etc.

(b) There is not an iota of evidence- documentary or oral on behalf of other petitioners in support of their case that they had been permitted by the Barnetts who were tenants nor the landlord to occupy the servant quarter and outhouses in premises no. 16, M.G. Marg, Allahabad.

(c) No evidence has ever been produced by the petitioners before the Station Officer when he came to execute the release order or even before the Rent Control and Eviction Officer when they were heard by him on the application of Sri Jagdish Prasad regarding their permissive occupancy as claimed by them.

(d) No document has also been filed even in the writ petition particularly when they were given full opportunity to establish their case before this Court under Article 226 of the Constitution.

(e) Further the counsel for the petitioners grudgingly admitted that Smt. Yuzin- petitioner no. 19 had a legal right to occupy the servant quarter no. 1, Colvin road Allahabad under the allotment order but the other petitioners do not have any allotment order in their favour or any other such evidence or document executed by the landlord Sri B.K. Tandon or the tenants Mr. George Henery Barnett, Mr. N.S. Dutta and Smt. Nirmala Verma giving their permission for occupancy of any servant quarter or outhouse.

95.   In fact, in so far as information was given by the petitioners to the Station Officer ,the Rent Control and Eviction Officer under application dated 17.5.1984 that they have been granted permission by Sri B.K. Tandon to live in the quarters for some time till they are given land elsewhere, is concerned, it has been denied by the landlords in their application before the Rent Control and Eviction Officer in reference to the report submitted by the Police in this regard that they had not given any consent to any person to occupy the outhouses or any other portion of the building.  

96. An occupant of an accommodation who is not the owner of the accommodation could claim following rights in order to claim a right to remain in occupation :-

(i) tenant of the landlord

(ii) Sub-tennant of the tenant and

(iii) Licensee of the landlord or the tenant

97. The petitioners have not claimed to be tenants. Even if they had claimed to be sub-tenants, they would be liable to be dispossessed in an application filed under Section 23 of the Act against the tenant without being made a party or notice to them and the same will be the position if they had claimed to be licensees.  Even if they were sub-tenants or licensees, they were not entitled to any notice nor did they have any right to file objections. Sri N.S. Dutta and others were the proprietors of Barnett Hotel having purchased the same from the erstwhile owner of the hotel Mr. Barnett. Neither Mr. Dutta nor Mr. Barnett were ever owners of the building no. 16 M.G. Marg, Allahabad.

98. The case now argued before this court is that the petitioners or their predecessors were the employees of Mr. Barnett or were in possession of the outhouses on his behalf before Mr. N.S. Dutta or Mrs. Nirmala Verma proprietor of Barnett's Hotel came on the scene and had nothing to do with Mr.N.S. Dutta.  This plea was not raised before the Courts below or even before this Court and for the first time, the petitioners have raised this plea in the instant case.  

99. Admittedly, the case of the petitioners is that they were put in possession by the predecessors of Barnetts about 100 years back as their servants. The Barnetts left India for England in 1947 after selling his shares to allottee-tenants Mr. N.S. Dutta and Smt. Nirmal Varma.  The petitioners continued to  reside as servants of Barnetts Hotel though their occupation was limited only to service in the aforesaid Barnet hotel being its servant. The contention of counsel for the petitioners that there was no privity of contract beween the petitioners and the new tenants- Mr. N.S. Dutta and Smt. Nirmal Varma would be of no help to them.  The contention of counsel for the petitioners that there was no privity of contract beween the petitioners and the new tenants- Mr. N.S. Dutta and Smt. Nirmal Varma would be of no help to them. Even otherwise, once Mr. Barnett closed his business in India and left for England, there remains no legal right of the petitioners to occupy the accommodation which allegedly had been given to them on licence by Mr. Barnett.

100.   If the case of the petitioners is accepted that that there was no privity of contract between the petitioners and the tenants- Mr. N.S. Dutta and Smt. Nirmal Varma, they had no lic4ence to continue in occupation as their right to continue to hold the accommodation was limited only till their tenure of service with the Barnetts.  There was no hostile proclamation or overt act of assertion on the part of the petitioners regarding adverse possession of the servant quarters and outhouses situate in 16 M.G. Marg. They had always claimed as servants of hotel Barnetts. This is apparent from the licence of the Barnetts. Per contra, through their letter dated 17.5.1984 given by the 21 person occupying the outhouses :-

""ge yksx mDr edku esa ihNs dh rjQ lkxj is'ks dh vyx vyx ihNs dh dksBfj;ksa esa ckjusV gksVy dh rjQ ls vkckn gksrs vk jgs gSa vkt ckjusV gksVy dh csn[kyh iqfyl dh enn ls U;k;ky; ih0,0 bykgkckn ds vkns'k ds ikyu esa dj fn;k x;k gS A

ge yksxksa ds fuosnu ij Jh ch0ds0VUMu edku ekfyd usa dqN fnu ds fy, jgus dh btktr crkSj ykblsUlh ds viuh rjQ ls ns fn;k gS A bwljh txg fn;s tkus ij ge yksx rqjUr [kkyh dCtk o n[ky ns nsaxs A"

101. The petitioners neither denounced the title of the landlord openly nor defined hostile assertion and overt act of possession. Per contra, the petitioners had themselves admitted that they were licensees and had been permitted by the landlord Sri B.K. Tandon to live for some time that they will vacate the disputed premises on being given land presumably by the Court in pursuance of the guidelines laid down by High Court in Civil Misc. Writ No. 2293 of 1969 (decided on 25.3.1986)- Gopal Krishna Sinha and others V. State of U.P. and others (1999 Revenue Judgments-161) which was also relied upon by the petitioners in respect of second prayer in the writ petition, in their writ petition and arguments. The aforesaid judgment is in respect of expiry of leases and is not germane to the controversies in this case. In fact giving land did not pertain to an act by the landlord but the State Government hence, it had no nexus with the order passed by the Prescribed Authority under Section 23 of the Act No. XIII of 1972.  This clearly shows that their possession was not adverse rather under a licence and they recognised Sri B.K. Tandon as their landlord and did not claim any right under licence of the Barnetts.  

102. The aforesaid judgment also does not lay down any ratio that the tenants or licensees of building will be given any land by the landlord.  Thus, the averment of the petitioners in letter dated 17.5.84 that they will vacate and handover peaceful possession of the disputed accommodation to the landlord on being given another accommodation is cleverly drafted to given an impression that landlord was required to give alternate accommodation to them. Paragraphx 35 and 37 of the aforesaid judgment, on which implicit reliance has been placed by counsel for the petitioners, is as under :-

"35. Legal heirs having been resolved, role of Courts defined how should the conflicting interest be reconciled due to confusing dichotomy between State endeavour to protect livelihood. The right recognized in Olga Tellha V. State of Maharashtra (AIR 1986 SC-130)  of numerous outhouses dwellers some coming down from the days of ''gora sahib' and exploited for generations and lessees for whom even late Prime Minister Jawahar Lal Nehru wrote a letter to local Self Government Minister. Although paragraph 12 of 1981 Order prohibiting letters from exercising opinion in respect of such tenements has been held to be invalid. Yet the effect this clause must have had on such dwellers cannot be undermined or ignored.  A welfare State is not only an ideal or a vision but a conviction and necessity. It is the rational basis of a modern State. Its policy implications flow from broad ideology of economic and social uplift. Whether it was political expediency or necessity which persuaded State Government to assure settlement of such tenements with those residing in it need not be committed upon or gone into but it cannot be disputed that removal of poverty by providing house to weaker sections of the society is a step towards realization of Welfare State. That such an assurance or even hope having been extended it appears the government should stick to it and give shape to its intention of providing houses by :

(i) Directing Collector, Allahabad to get survey of the bungalows done within a period of two months, if possible, from the date copy of Government order is received by him and get a list prepared of all such dwellers,

(ii) It may initiate necessary proceedings immediately for building a colony sufficient to house all such persons at one place

(iii) The colony should be constructed as soon as possible but not beyond five years

(iv) Houses so constructed should be settled or leased to such persons on such terms and conditions as may be determined by the Government. But it should be reasonable and within their reach as a part of social and economic uplift.

(v) Such persons shall not be evicted for a period of five years or till the colony is constructed whichever is earlier.

37. In the result these petitions succeed and are allowed. A direction is issued to opposite parties to (i) grant fresh leases to all those who had deposited the premium or at least one instalment on terms and conditions mentioned in 1959 Order read with 1960 Ordeer

(ii) To issue notice to all those lessees to whom no notice was issued and determine their premium etc., on terms and conditions contained in 1959-60 Orders expeditiously.

(iii) To determine premium etc., of others to whom notices were issues but it could not be finalized for one reason or other at an early date.

(iv) Determine rate of premium etc., for premises which are used as residential-cum-commercial purpose in light of 1965 Order

(v) Determine rate of premium used for commercial purpose in light of various orders till 1965

(vi) Lessees shall after grant of fresh lease file the necessary forms etc., within one month before the Prescribed Authority under Urban Ceiling Act, 1976 (Act 33 of 1976) if it had already not been filed who shall proceed to decide the same as expeditiously as possible."

103.   In any case, a bare perusal of the aforesaid paragraph 35 makes is clear that such persons may not to be evicted only for a period of five years according to the guidelines framed by the Court but the petitioners have been living in the outhouses now for more than ten years even after the order under Section 23 was passed for execution of release order.

104. Now comes the issue of adverse possession. In Dr. Bargava and Company (supra), it has been held by Hon'ble the Apex Court that it is settled law that the applicants whose possession was permissive cannot claim title on the basis of adverse possession unless they show specific overt act and assertions on their part that they disclaim the title of the true owner.  It requires a definite overt act and assertions on the part of the appellant. Same view has been reiterated  in Kamla Prasad and others(supra).

105 The petitioners have played their first innings and have not vacated outhouses and servant quarters when the litigation was going on between the joint tenants- Sri N.S. Dutta, Smt. Nirmala Varma and the landlord, which attained finality after rejection of appeals by Hon'ble the Apex Court filed by the tenants.

106. The petitioners then played the second innings inter alia that they have not been impleaded as party by the landlord as per Section 23 read with Section 25 of the Act. Their contention that they were not afforded any opportunity before the order of eviction was passed has also no force as is apparent from the narration of facts in the body of the judgment that Sri Jagdish Prasad and other petitioners were impleaded by the landlord and they were heard on the application of Sri Jagdish Prasad.  After hearing them, the Prescribed Authority rightly came to the conclusion relying upon the judgments rendered in Hakim Safdar Khan V. P.A. Rampur-A.R.C 1988(1)-246; Ubebur Rahman Vs. D.J. Saharanpur -A.R.C 1986(1)-364; Vishnua Kant Sharma V. P.A -A.R.C 1983 (2)-19;  Syed Asadullah Kazmi V. A.D.J. allahabad- A.R.C-1981 S.C-543 and Lala Prasad Jaiswal v. P.A. Allahabad -A.R.C 1996(1)-353 that no notice for hearing was required to be served upon them under Section 23 read with Section 25 of the Act.  

107. It may be noticed that it is not the case of the petitioners that they are tenants of the landlord. On their own showing, they may be treated to be licensees of Barnetts and thereafter licensees of Sri B.K. Tandon, the landlord (as per their application dated 17.5.1984). Their right to remain in occupation extinguished after Mr. Barnett left India after independence. Even if it is assumed that the licence of the petitioners continued under Sri N.S. Dutta and Smt. Nirmal Verma when they continued the business of Barnett Hotel (which is not the case of the petitioners) their rights came to an end after the order of the Prescribed Authority regarding eviction was finally decided against the tenants- Sri N.S. Dutta and Smt. Nirmala Verma by Hon'ble the Supreme Court and they sought time to vacate the outhouses admitting that licence to stay for sometime had been given to them by Sri B.K. Tandon . In either case, the petitioners could not establish their case of adverse possession and perfection of right on ground of limitation or otherwise.

108. The Court below has relied upon the Commissioner's report (paper no. 25) which contains the names of petitioner nos. 10 to 22.  It is apparent from the aforesaid report that some of the petitioners and predecessors-in- interest of others were occupying servant quarters and outhouses on behalf of Hotel Barnetts. In this regard, order dated 15.3.1985 passed on the application (paper no. 32) assumes significance wherein it has been held that from the Commissioner's report, it is clear that the persons were permitted to occupy the accommodation on behalf of Hotel Barnetts. The order of release in respect of premises no. 16 M.G. Marg was in regard to whole of the premises, which included the main building, outhouses and servant quarters as well as the land appurtenant thereto.  The order of release dated 1.5.1982 was contested by the tenants of the building up to High Court. Civil Misc. Writ No. 3658 of 1983 was dismissed by High Court vide judgment dated 11.11.1983 (reported in 1985(1) ARC-113).  S,L.P. No. 1716 of 1984 was also dismissed by Hon'ble the Apex Court on 31.5.1984. The order of release dated 1.5.1982 thus attained finality. Therefore, it has rightly been held by the Prescribed Authority that the petitioner were not entitled to notices and hearing on the order passed under Section 23 of the Act No. XIII of 1972. This order of the Prescribed Authority is in accordance with law. Even otherwise the petitioners were impleaded by the landlord and had been heard by the Prescribed Authority on the application by Sri Jagdish Prasad. Even it may be claimed to be a post dismissal hearing but it cannot be said that they have suffered any irreparable loss or injury as the release order could not be finally executed to full satisfaction till date and the petitioners are still in occupation of the outhouses.  

109. The settled law is that the applicants whose possession was permissive cannot claim title on the basis of adverse possession unless they show specific overt act and assertions on their part that they disclaim the title of the true owner. it is necessary to prove by some overt act showing hostility as against the claimant or by denouncing his title openly.

110. As regards the question whether the claim of the landlord was barred by limitation, I find that the Prescribed Authoirty has dealt with this question exhaustively in the impugned order and has held that in view of the language used by the legislature in Section 23 read with Section 35 of the Act, the provisions of Limitation Act would not be applicable. By harmonious construction of the aforesaid two Sections, it is apparent that only Sections 4,5 and 22 of the Limitation Act are only applicable to Act No. XIII of 1972 and not any other provision of the Limitation Act. The order of the Prescribed Authority is thus in accordance with law.

111. From the reading of Section 23, it is clear that the said Section does not provide any limitation for enforcement of the eviction order.  In the scheme of the Act No. XIII of 1972, specific period of limitation are prescribed where the legislature has thought it prudent to provide limitation such as Sections 10,18 and 22 of the Act for filing appeals and revisions.  Since under Section 35 of the Act, only three Sections of the Limitation Act, i.e., Sections 4, 5 and 12 have been made applicable, the other provisions of Limitation Act would not apply. Provisions akin to Section 23 of the Act are also contained in Section 5 of the Mamlatdars' Courts Act, 1906., which has been quoted in the body of the judgment.

112. The aforesaid provisions came up for consideration before Hon'ble the Apex Court in Uttam Namdeo Mahaley(supra). It was held that as no limitation has been prescribed in Section 21 of the Mamlatdars' Courts Act, 1906 against the order of ejectment within which the order has to be executed, the necessary implication is that the law of limitation provided in the Limitation Act stands excluded. Hon'ble Supreme Court in that case, while upholding the order of High Court, further held that since no limitation had been prescribed, the order could be executed at any time.  In that case, the execution was sought to be enforced after more than 12 years of the passing of the order for possession under Section 5 of the Mamlatdars Courts Act. According to Hon'ble Supreme Court, where there is statutory rule operating in the field the implied power of exercise of the right within reasonable limitation does not arise.

113. Similarly in Bombay Gas Company V. Bhopal Bhiba-1963 (7) FLR0304, the Hon'ble Apex Court discussed the provisions of Section 33 (c)(2) of Industrial Disputes Act and held that since no limitation has been prescribed under the Act, application under the aforesaid Section could be moved at any time and provisions of Limitation Act would not apply. Therefore, the contention of counsel for the petitioners that the action of the respondent-landlord is barred by limitation cannot be sustained in view of plain language of Section 23 reas with Section 35 of the Act as well as law laid down by Hon'ble Apex Court in the aforesaid cases.

114. Recently in B. Leelawati V. Hammamma -(2005) 11 SCC-115, the Hon'ble Supreme Court has laid down the law that ingredients and commencement of prescription of period of limitation must be pleaded and proved.  

115. It has already been held by the Court that the petitioners were, at best, licensees and were not on adverse possession over the accommodation in their possession in the premises 16 M.G. Marg.  The release application was in respect of the whole of the premises and not in regard to part of it.  In view of the law laid down in Dr. Bargava and Company (supra), and B. Leelawati V. Hammamma(supra) the possession of the petitioners over the accommodation, in dispute, was not hostile to the landlords according to their own admitted case. From the record, it appears that on the one hand the petitioners have claimed to remain in occupation over the disputed outhouses/servant quarters on the basis of permissive occupation and on the other, they claim their right on the basis of adverse possession. Both the claims are contradictory. Moreover, they resisted their being evicted on the ground that they will vacate the premises when the State Government will provide them land/accommodation anywhere else under the order passed in favour of the landlord.  The petitioners have failed to establish their right to retain the disputed property either on the basis of permissive occupation or on the basis of adverse possession.

116. The petitioners are not tenants and, therefore, the aforesaid provisions of Limitation Act do not apply to them.  Sections 2-J, 3 and entry 67 in Schedule V Part V of the Limitation Act are as under :-

"2-(j) ''Period of limitation means the period of limitation prescribed for any suit, appeal or application by the Schedule, and ''prescribed period' means the period of limitation computed in accordance with the provisions of this Act.

3. Bar of Limitation- (1) Subject to provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.

(2) for the purposes of the Act -

(a) A suit is instituted-

(i) in an ordinary case when the plaint is presented to the proper officer;

(ii) in the case of a pauper, when his application for leave to sue as a pauper is made and

(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;

(b) any claim by way of a set off, or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted-

(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;

(ii) in the case of a counter claim, on the date on which the counter claim

(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court.

Entry 67:

Description of suit Period of limitation   Time from

                                                                   which period

                                                                   begins to run

67. By a landlord to    Twelve years     When the tenancy

    recover possession                           is determined

    from a tenant.

117. The aforesaid Entry 67, on perusal, makes it clear that a period of 12 years of limitation is provided to the landlord where possession is to be taken by him from the tenant. The contention of counsel for the petitioners that right of the landlord to recover possession from the tenant expired under section 2-J, Section 3 read with Schedule V Part V Entry 67 of the Limitation Act is incorrect. It is evident from perusal of Sections 2-J, 3 and Schedule V Part V Entry 67 aforesaid that the period of limitation is prescribed for taking possession from the tenant and not from the licencees.  Admittedly, the petitioners have based their claim on the ground of adverse possession and in the alternate licensees of Mr. Barnetts and after his departure from India, licensees of Mr. Dutta and Mrs. Nirmala Verma.  

118. Further, only Sections 4.5 and 12 of the Limitation Act have been made applicable to the provisions of Act No. XIII of 1972.  Tthe provisions contained in the aforesaid Sections of Limitation Act do not support the case of the petitioners.

119. However, even assuming that the Limitation Act applies, then too the application filed by the landlord under Section 23 of the Act for enforcement of the eviction order was well within time.  

120. Moreover, according to Hon'ble Supreme Court, where there is statutory rule operating in the field the implied power of exercise of the right within reasonable limitation does not arise and where there is statutory rule operating in the field the implied power of exercise of the right within reasonable limitation does not arise.

121. As regards question of consignment of record, rights of the decree holder are not extinguished till the decree is satisfactorily executed.  The case of the respondent-landlords is fully covered by ratio laid down in Government of Rajasthan and another(supra) as well as Chidambaram Chettiar(supra) and Chattar Singh and another V.(supra)

122. Lastly, from the definition of building, quoted in the body of this judgment, it is apparent that building does not only contain structure on the land but also means outhouses/servant quarters and land appurtenant thereto.  The release order passed by the Prescribed Authority in favour of the landlord is in respect of the entire building, which includes the outhouses/servant quarters and land appurtenant thereto. Admittedly, the petitioners claim to have been in permissive occupation of the outhouses and, therefore, they are liable to be evicted in pursuance of the impugned orders dated 21.9.1999 and 5.10.1999.

123. Regard may be had to the fact that no rent for their permissive possession, at all, ahs been paid by them either to Mr. George Henery Barnet, or to the allottee-tenants Mr. N.S.Dutta and Mrs. Nirmala Verma or to the landlord Sri B.K. Tandon for all these years and in this view of the matter also, they are liable to be evicted. The petitioners cannot take the advantage of the decision in Gopal Krishna Sinha  (supra) as it was a case regarding renewal of lease.  The petitioners were neither party to the aforesaid litigation nor any assurance was given by the State Government to them that they will be provided alternate accommodation. Since they were not tenants of the outhouses, the aforesaid decision does not apply to them and in any case, five years period provided in the guidelines has expired long back.  The facts of that case, therefore, is not of any help to the petitioners nor does any right flow in favour of the petitioners from the aforesaid judgment.

124. In so far as argument of counsel for the petitioners with regard to coordinate Benches is concerned, the decisions relied upon by him in support of this contention are not applicable to the facts and circumstances of the instant case in view of  discussions made in the foregoing paragraphs of this judgment.

125. For the reasons stated above, the writ petition fails and is dismissed. The petitioners shall handover peaceful possession of the disputed accommodation to the landlord within a period of three months from today and in case of failure to do so, the landlord will be at liberty to evict them by the assistance of local Police according to law.

Costs:

126.   As regards costs, Hon'ble the Apex Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India, AIR 2005 SC-3353  has held that-

             " So far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on number of other issues or points, which were unnecessarily raised. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rule in force. If any of the parties has unreasonably protracted the proceedings, the judge should consider exercising discretion to impose exemplary costs after taking into account the expense incurred for the purpose of attendance on the adjourned dates."

127.       Thus from the law laid down by the Hon'ble Apex Court in the aforesaid case of Salem Advocate bar Association (supra) it is apparent that non-payment of cost is an exception for which special reasons have to be given by the Court and that in normal circumstances cost has to be awarded on the party according to the issue decided in favour of the party which were unnecessarily raised. The cost so imposed should be in accordance with rules and if the proceedings are unnecessarily protracted or adjournments have been sought it is upon the discretion of the Judge to impose exemplary cost taking also into account the circumstances etc. for the purpose of adjournment.

128. Following the ratio laid down in Salem Advocate bar Association (supra) , this Court in Civil Misc. Writ Petition No. 48752 of 2006 Nizamuddin Versus  Shakoor Ahmad considering the provisions contained in the Allahabad High Court Rules, 1951 observed that Chapter XXI Rule 11 of the Rules provides for cost in Writ in the nature of Habeas Corpus under Article 220 of the Constitution whereas Rule 9 of Chapter XXII of the said Rules provides costs in respect of Direction, Order or Writ under Article 226 of the Constitution other than a Writ in the nature of Habeas Corpus. In so far as Writ of Habeas Corpus is concerned, provision for cost is given in Rule 11 of Chapter XXI.

         Rule 9 of Chapter XXII of the Rules is as under:-

"Rule 9- Costs- In disposing of an application under this Chapter the Court may make such order as to costs as it may consider just."

Rule 11 of Chapter XXI of the Rules is as under:-

 "Rule 11- Costs- In disposing of an application under this Chapter the Court may make such order as to costs as it may consider just."

129. From the aforesaid rule it is evident that the Court can make such order as to costs as it may consider just. It is discretionary power of the Court to impose cost, hence it cannot be said to be illegal or perverse. The Court should award cost for judicious approach taking into consideration the whole set of facts and circumstances and not award cost arbitrarily or capriciously.

130. As regards cost to be awarded in suit, Sections 35A and 35B of the Code of Civil Procedure take care of it. Sections 35-A and 35-B of the C.P.C. are as under:-

         " 35. Costs- (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.

(2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing.

   35-A. Compensatory costs in respect of false or vexatious claims or defences- (1) If in any suit or other proceeding (including an execution but (excluding an appeal or a revision), any party objects to the claim or defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court, (if it so thinks fit ), may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector by the party by whom such claim or defence has been put forward, of costs by way of compensation.

      (2) No Court shall make any such order for the payment of an amount exceeding (three thousand rupees) or exceeding the limits of its pecuniary jurisdiction, whichever amounts is less:

      Provided that where the pecuniary limits of the jurisdiction of any Court exercising the jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 (9 of 1887), (or under a corresponding law in force in (any part of India to which the said Act does not extend) and not being a Court constituted (under such Act or law), are less than two hundred and fifty rupees, the High Court may empower such Court to award as costs under this section any amount not exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees:

        Provided, further, that the High Court may limit the amount which any Court or class of Courts is empowered to award as costs under this Section.

      (3) No person against whom an order has been made under this section shall, by reason thereof, be exempted from any criminal liability in respect of any claim or defence made by him.

(4) The amount of any compensation awarded under this section in respect of a false or vexatious claim or defence shall be taken into account in any subsequent suit for damages or compensation in respect of such claim or defence.

35-B. Costs for causing delay- (1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit-

(a) fails to take the step which he was required by or under this Code to take on that date, or

(b) obtains an adjournment for taking such step or for producing evidence or on any other ground,

the Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of-

(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs,

(b) the defence by the defendant, where the defendant was ordered to pay such costs.

Explanation- Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the Court to pay such costs.

(2) The costs, ordered to be paid under sub-section (1), shall not, if paid, be included in the costs awarded in the decree passed in the suit; but, if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons."

Section 34 of the C.P.C. also provides for interest.

131. In my opinion while awarding interest on a party by non-payment of principal amount or any dues should also be considered by the Court and not only interest but penal interest may also be awarded.

132.    It was held that since it was a frivolous petition, the cost was to be deterrent and exemplary. In the facts and circumstances of the case, the petition was dismissed with cost of Rs.10,000/- which was to be deposited by the petitioner before the Court of Judge Small Causes Court, Budaun in J.S.C.C. suit no. 13 of 1992. The cost so deposited was directed to be withdrawn by the respondent without furnishing any security within two months from the date of order. It was further directed that in case of failure on the part of the petitioners to make payment of the aforesaid amount, the same was directed to be recoverable as arrears of land revenue.

133. In the instant case, the petitioners have stalled the executed proceedings for one reason or the other for decades and in view of law laid down by Hon'ble the apex Court in Salem Advocate Bar Association (supra), reasonable cost has to be imposed.  Taking a pragmatic view of the matter, cost of Rs. 30,000/- (Rupees Thirty Thousand) is imposed which shall be deposited the petitioners with District Judge, Allahabad within a period of two months from today.  If the aforesaid amount is deposited, the landlord can withdraw the same without furnishing any security within a week from the date of deposit and in case the petitioners fail to deposit the amount of cost, as above, within the stipulated period, the same shall be recoverable from them as arrears of land revenue.

Dated 6th October, 2006

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Dated 6th October, 2006

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Copyright

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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