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Abdul Shakoor vs Lateef Uddin

High Court Of Judicature at Allahabad|10 December, 1975


JUDGMENT Chandra Prakash, J.
1. This is a second appeal against the judgment and decree dated 8-4-1974 of Shri K. K. Birla, District Judge, Agra, dismissing the appellant's first appeal after confirming the decree of the trial Court.
2. The Facts leading to this appeal are not in dispute and may be narrated as follows. The appellant moved an application under Section 11 of the U. P. Cantonments (Control of Rent and Eviction) Act, 1952, (hereinafter referred to as the Act), for the eviction of the defendant respondent on the allegation that the respondent was a tenant of the appellant and that more than three months' rent amounting to Rs. 4447- had fallen into arrears. This application was presented on 24-3-1971. Notice was issued to the defendant-respondent for 31-7-1971. On 31-7-1971 the defendant-respondent did not appear and the service of notice on him was held to be sufficient. The case was, however, postponed to 8-10-1971. On 8-10-1971 also the case was adjourned to 7-1-1972 on the motion of the appellant and on 7-1-1972 an ex parte order of eviction was passed against the respondent and the same was communicated to the District Magistrate. On 24-12-1972 the respondent was evicted.
3. On 8-1-1973 the respondent moved an application under Order IX, Rule 13, Civil Procedure Code read with Section 151, Civil Procedure Code for setting aside the order of eviction passed against him ex parte. Notice of that application was issued to the appellant and the appellant filed an objection against it. However, the trial Court after hearing the parties set aside the ex parte order of eviction passed against the respondent on 20-10-1973.
4. After the order of eviction had been set aside the respondent moved an application for re-delivery of possession. After hearing the parties the Court below ordered that the respondent will get the possession back.
5. Against the above order the appellant filed a first appeal in the Court below and after hearing the parties the lower appellate Court dismissed the appeal.
6. Feeling aggrieved, the appellant has come up in second appeal before me.
7. I have heard the learned counsel for the parties. I have also gone through the record. After giving the matter my anxious consideration I have come to the conclusion that the order passed by the Court below cannot be interfered with.
8. The appellant got possession under an ex parte order which had been set aside and when the order under which the appellant got possession had been set aside he is under law bound to be re-delivered back the possession.
9. It was, however, contended on behalf of the appellant that once the Court below passed the order of eviction and communicated it to the District Magistrate the Court below was functus officio and it could not set aside that order. This contention cannot be accepted for two reasons. Firstly, the ex parte order of eviction was set aside on 20-10-1973 and it has become final because no appeal or revision was filed by the appellant against that order.
10. Secondly, no doubt, it was held in Radha Rani Bhargava v. Dr. A. P. Singh, (1966 All WR (HC) 355) by a single Judge of this Court as follows:--
"There is no provision in Section 7-B for review of an order or for the setting aside of an order passed ex parte. The Mun-sif becomes functus officio alter he has passed an order of ejectment and has sent it to the District Magistrate for compliance. He has no jurisdiction to review his order. The special provision of a special law must be strictly complied with. The Munsif acts judicially in such matters and unless the statute conferring powers on the Munsif gives him specific power of review he cannot review his order once passed. If for any reason the opposite party was aggrieved by this order, the appropriate remedy for him might have been by way of revision or a writ petition. The Munsif could not, however, set aside his own order when he had sent it to the District Magistrate for execution."
11. The above ruling was reconsidered subsequently by a single Judge of this Court in Shahabuddin v. Smt. Nayan Kumari Devi, (1970 All WR (HC) 183). In Shahabuddin's case (supra) the case reported in Radha Rani Bhargava v. Dr. A. P. Singh, 1966 All WR (HC) 355 (supra) was explained and dissented from. It was specifically pointed out in Shahabuddin's case that in the former case of Radha Rani Bhargava (Supra) the scope of Section 144, Civil procedure Code was not considered. In the subsequent ruling reported in Shahabuddin v. Smt. Nayan Kumari Devi (supra) a reference was also made to a decision of the Chief Justice in Writ Petn. No. 69 of 1958 decided on 29-10-1959 (All) in which the Chief Justice had held that the Munsif had power to set aside the order passed ex parte under Section 7-B of the Rent Control and Eviction Act under his inherent powers of Section 151, Civil Procedure Code. In any view of the case the ruling reported in Shahabuddin v. Smt. Nayan Kumari Devi (supra) which is later, will prevail.
12. For the reasons given above, there is no force in this appeal and it is accordingly dismissed with costs. The stay order is vacated. The appellant is allowed two months' time to vacate the premises.
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Abdul Shakoor vs Lateef Uddin


High Court Of Judicature at Allahabad

10 December, 1975
  • C Prakash