Court No. - 05
Case :- MATTERS UNDER ARTICLE 227 No. - 5392 of 2019 Petitioner :- Chandra Bhan Respondent :- Smt. Prakash Dubey And 5 Others Counsel for Petitioner :- Rishikesh Tripathi Counsel for Respondent :- Madhav Jain Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Rishikesh Tripathi, learned counsel for the defendant- tenant/petitioner and Sri Madhav Jain, learned counsel for the plaintiffs-landlords/respondents.
2. This petition has been filed praying to set aside the order dated 02.01.2019 in Misc. Case No. 53 of 2019 arising from Misc. Case No. 1602 of 2018 in Rent Control Misc. Appeal No. 187 of 2016 (Chandra Bhan vs. Smt. Prakash Dubey and others).
3. Briefly stated facts of the present case are that the respondents are owners and landlords of the disputed House No. 2/6 Madhav Ashram, Namner Agra, Ward No. 7, P.S. Sadar Bazar, Agra. The first floor of the aforesaid house is occupied by the petitioner herein as tenant. A Release Application under Section 21(1)(a) of U.P. Act 13 of 1972 being P.A. Case No. 21 of 2012, was filed by the landlords- respondents, which was allowed by the Court of Judge Small Cause Court/Prescribed Authority, Agra by judgment dated 28.10.2016. A finding has been recorded in the said judgment that the defendant- tenant/petitioner has acquired in vacant state a three-storey residential house in the same locality. The finding on the point of bonafide need and comparative hardship was also recorded in favour of the landlords-respondents. Aggrieved with that judgment, the defendant-tenant/petitioner filed a Rent Control Misc. Appeal No.
187 of 2016, which was dismissed for non-prosecution by order dated 03.10.2018 passed by the Ist Additional District Judge, Agra. The petitioner moved an Application 4ga for recall of the aforesaid order, which was registered as Misc. Case No.1602 of 2018. It was allowed by the appellate court by order dated 15.12.2018 subject to payment of cost of Rs. 1000/- to be paid within a week. The cost was not deposited. Consequently, the order dated 15.12.2018 was held to be nullified by the court below by order dated 02.01.2019. Thereafter, the petitioner filed a recall application being Misc. Case No. 53 of 2019 for recall of the order dated 02.01.2019, which has been dismissed by the impugned order dated 04.04.2019.
4. Learned counsel for the defendant-tenant/petitioner states on instructions that the petitioner undertakes to deposit a cost of Rs.1000/- as imposed by order dated 15.12.2018 and an additional cost of Rs.4000/- for recall of the order dated 02.01.2019. He further states that the defendant-tenant/petitioner shall not seek any adjournment in the aforesaid appeal, which may be decided by the appellate court within a time bound period and in the event, the petitioner seeks any adjournment, it may be granted subject to payment of a very heavy cost. Learned Counsel for the defendant-tenant/petitioner further states that in view of the undertaking as noted above, the order dated 02.01.2019 may be recalled and the order dated 04.04.2019 may be set aside. He further undertakes that in the event, any adjournment is sought, the interim order granted by the appellate court may be directed to be vacated.
5. In response to the afore-stated submissions/ undertakings, Shri Madhav Jain, learned counsel for the landlords-respondents, has no serious objection but submits that in the event the impugned order is set aside and the appeal is restored to its original number, the defendant-tenant/petitioner may be put to strict terms so that appeal may be decided within a time bound period.
6. In view of the aforesaid, this petition is disposed of, providing as under:
(i) The impugned order dated 04.04.2019 in Misc. Case No. 53 of 2019 passed by the Court of Ist Additional District Judge, Agra is set aside. The Application 4ga is allowed and the order dated 02.01.2019 also stands set aside, subject to deposit of cost of Rs. 5000/- by the defendant-tenant/petitioner before the appellate court on or before 19.08.2019. In the event, cost as aforesaid is deposited with the court below, the Rent Control Appeal Misc. Appeal No.187 of 2016 shall stand restored to its original number. In the event cost as aforesaid, is not deposited within the stipulated period, then the order dated 02.01.2019 and the impugned order dated 04.04.2019 shall automatically revive.
(ii) On 19.08.2019, the defendant-tenant/petitioner shall appear before the appellate court alongwith a certified copy of the order. On that day, the appellate court shall fix a date for hearing of the appeal and shall decide the appeal within six weeks thereafter, without granting any unnecessary adjournment to either of the parties.
(iii) In the event, either of the parties, seek any adjournment and the appellate court feels it appropriate to grant adjournment, then it shall grant adjournment for a period of not more than seven days and that too, subject to payment of cost of not less than Rs.2000/-.
Order Date :- 30.07.2019 NLY