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Om Prakash & Others v. V.A.D.J.,& Others - WRIT - A No. 17064 of 1996  RD-AH 16214 (18 September 2006)
Civil Misc. Writ Petition No.17064 of 1996
Om Prakash and others
Vth Addl.District Judge and others
Hon. Sanjay Misra, J.
Heard Sri Atul Dayal, learned counsel for the petitioners and Sri A.N.Bhargava, learned counsel appearing on behalf of the respondents.
The application u/s 21(1)(a) of the Act filed by the petitioner has been rejected by the Prescribed Authority and in appeal the said order has been confirmed.
Learned counsel for the petitioner contended that the lower appellate court while considering the provision of Rule 16(2)(a) of U.P. Urban Buildings (Regulation of Letting Rent and Eviction ) Rules 1972 has recorded that there is nothing on record of the case to indicate that tenant had any alternative accommodation where he could shift and since the tenant is occupying the shop in dispute since 1963 therefore taking into consideration the provision of sub rule (a) of Rule 16(2) the application of the petitioners for release was rightly rejected. Learned counsel for the petitioner has contended that he had made an application for amendment before the lower appellate court, a true copy whereof has been filed as annexure-6 to the writ petition, wherein it was stated by the petitioner that respondent nos.7 and 8 had purchased a shop in the name of their sons Lal Babu by a sale deed dated 14.7.1995 opposite the disputed shop and as such the aforesaid shop was available to the respondent tenant. In the release application, the petitioner has categorically stated that the respondents have purchased a building through registered sale deed dated 23.7.1983 and as such they had two shops available in the aforesaid
building. It is contended by learned counsel for the petitioners that the finding of the lower appellate court to contrary is erroneous particularly when the said amendment application was allowed by the appellate court on payment of cost.
Learned counsel for the respondents has contended that he had filed his evidence disputing the allegations regarding purchase of two other buildings by the respondents tenants. Such evidence led by the tenant ha not been considered by the lower appellate court.
In view of aforesaid submissions and after perusing the impugned order it appears that the appellate court while deciding the appeal in light of the provision of Rule 16(2)(a) of the Rules has not taken into consideration any evidence led by either party on the issue referred to above and as such the impugned order can not be sustained and is accordingly set aside. The matter is therefore remanded back to the appellate court to consider the evidence already on record and pass orders on the issue in question in accordance with law.
The writ petition stands allowed to the above extent. No order is passed as to costs.
Sri A.N.Bhargava, learned counsel for the respondents has contended that he has filed affidavit before this court with respect to availability of other shop with the petitioner landlord. His contention has been controverted by the petitioner by filing affidavit in reply without expressing any opinion on the said affidavits it will be for the parties to raise their points before the appellate court. Since the proceedings are very old it is expected that the parties will cooperate with the proceedings before the appellate court and the appellate court will decide the issue in question preferably within a period of six months from the date a certified copy of this order is produced before it.
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