Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 6571 of 2018 Petitioner :- Arvind Kumar Singh And 13 Others Respondent :- Kamta Prasad Agarwal And 6 Others Counsel for Petitioner :- C.K.Parekh Counsel for Respondent :- Pramod Pathak,A0231,Ashish Kumar Singh Hon'ble Vivek Kumar Birla,J.
Supplementary affidavit on behalf of the petitioner and affidavit on behalf of the respondent no. 1 filed today are taken on record.
Heard Sri C.K. Parekh, learned counsel for the petitioners and Sri Ajay Kumar Singh alongwith Sri Pramod Kumar Pathak, learned counsel appearing for the contesting respondent no. 1.
Present petition has been filed with the following prayer:-
"i) exercise extraordinary jurisdiction under Article 22 of the Constitution of India to set-aside order dated 4.8.2018 (Annexure No.1) passed by Prescribed Authority/Additional Civil Judge, Senior Division, Court No. 3, Varanasi in P.A. Case No. 15 of 2013 (Kamta Prasad Agarwal vs. Avinash Singh) connecting and clubbing with P.A. Case No. 18 of 2013 (Kamta Prasad Agarwal vs. Bharat Lal Srivastava), P.A. Case No. 21 of 2013 (Kamta Prasad Agarwal vs. Dr. Satish Chand Gupta), P.A. Case No. 22 of 2013 (Kamta Prasad Agarwal vs. Dr. Satish Chand Gupta), P.a. Case No. 16 of 2013 (Kamta Prasad Agarwal vs. Shyam Lal and another), P.A. Case No. 19 of 2013 (Kamta Prasad Agarwal vs. Raj Kumar and another) and P.A. Case No. 42 of 2013 (Kamta Prasad Agarwal vs. Raj Kumar) by wrongly exercising power under section 34(g) of U.P. Act No. 13 of 1972 with Rule 22 (e) and Order 4-A of C.P.C. for joint trial;
ii) issue any other suitable order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case not to give effect the impugned order and further be pleased to direct the separate trial, because all such proceedings can not be decided upon the evidence in all or any of such proceedings or release application filed against the separate tenants of separate shop, of which separate owners or landlords;"
By the impugned order dated 4.8.2018 the court below has clubbed together 6 P.A. cases out of 7 P.A. cases as in six cases the evidence has been closed and date for final hearing was fixed. Insofar as P.A. CAse No. 18 of 2013 (Kamta Prasad Agrawal vs. Bharat Lal Srivastava) was not clubbed for the reason that the evidence is yet to begin in the aforesaid case, therefore, the same is liable to proceed separately.
I have heard Sri Parekh at length, who has advanced his arguments on merits also and crux of the argument is that there are distinguishing features in all the cases and therefore, they should not have been clubbed and moreover, P.A. Case No. 15 of 2013 (Kamta Prasad Agrawal vs. Arvind Kumar Singh) has wrongly been taken as a leading case in view of the distinguishing features.
Per contra, learned counsel for the respondent submits that since all the release applications were filed under Section 21(1) (a) as well as under Section 21 (1) (b) of the U.P. Act 13 of 1972, therefore, except the comparative hardship, all other features are common in nature and submitted that infact, in objection/written statement filed by the petitioners herein, common objection have been taken.
I have considered the rival submissions and have perused the record.
Since any observation on merits of the case may affect the consideration of release applications on merits, therefore, this Court is restraining itself from making any comment on the merits of the case.
I do not find any jurisdictional error in the order impugned herein in view of the provisions of Rule 22 (e) of the rules framed under the U.P. Act 13 of 1972.
Insofar as the argument regarding distinguishing features in each and every release application is concerned, it cannot be disputed that the hardship has to be considered separately. Once the cases are clubbed together, there can be no dispute that it has to be decided by taking one case as a leading case. However, if there are any distinguishing features in any case or cases, as the case may be, the court below is under obligation to consider the same.
Therefore, without interfering in the order impugned herein, present petition stands disposed of with the observation that the court below, apart from dealing with the common grounds and common objections thereon, shall consider the distinguishing features in all the release applications, if so asserted by the contesting respondents, on their own merits.
Order Date :- 17.9.2018 Lalit Shukla