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Om Prakash & Others v. V.A.D.J.,& Others - WRIT - A No. 17064 of 1996 [2006] RD-AH 16214 (18 September 2006)


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Court No.20

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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