JUDGMENT S.U. Khan, J.
1. The property in dispute is a shop which has been allotted to Mahendra Singh Chaudhary, respondent No. 1 by R.C. and E.O., Mathura on 1.1.2003. Petitioner was in possession of the shop. In execution of the aforesaid allotment order he was dispossessed on 3/4.3.2004. According to the petitioner he was owner of the shop and running a medical store in the shop in dispute for long time. Respondent No. 2 Smt. Shashi Gupta consented for allotment of the shop in favour of respondent No. 1 through an endorsement on the allotment application of respondent No. 1. In the allotment application it was mentioned that Smt. Shashi Gupta was the owner.
2. Against allotment order dated 1.1.2003, petitioner claiming to be the owner filed review under Section 16 (5) of U. P. Act No. 13 of 1972 before R.C. and E.O., Mathura. Thereafter against allotment order revision was also filed by the petitioner along with application for condonation of delay which was registered as Misc. Case No. 171 of 2003. District Judge, Mathura, on 21.5.2003 rejected the delay condonation application and dismissed the revision as barred by time. Unfortunately the said order of District Judge dated 21.5.2003 was not promptly challenged. The said order has been challenged along with other orders passed prior as well as subsequent to the said order through this very writ petition filed on 4.3.2004. According to the learned Counsel for the petitioner in the review petition R.C. and E.O. did not grant any stay order, hence petitioner was compelled to file revision against allotment order (which was also sought to be reviewed before R.C. and E.O.). After rejection of revision as barred by time on 21.5.2003 R.C. and E.O. rejected the review petition on 28.6.2003, holding that the allotment order dated 1.1.2003 sought to be reviewed had been affirmed by the revisional court by dismissing the revision as barred by time on 21.5.2003, hence R.C. and E.O. had no jurisdiction to review the said order. Against order dated 28.6.2003, passed by R.C. and E.O. rejecting the review petition petitioner filed Civil Revision No. 4 of 2003. District Judge, Mathura, dismissed the revision on 26.2.2004 agreeing with R.C. and E.O. regarding absence of jurisdiction to hear the review petition on the ground that the order which was sought to be reviewed had merged in the revisional court's order dated 21.5.2003. Through this writ petition following orders have been challenged.
(1) Allotment order dated 1.1.2003.
(2) Order dated 21.5.2003, rejecting delay condonation application by District Judge in the revision filed against allotment order dated 1.1.2003.
(3) Order dated 28.6.2003, passed by R.C. and E.O. rejecting review petition.
(4) Order dated 26.2.2004 passed by District Judge dismissing the revision directed against order of R.C. and E.O. dated 28.6.2003.
3. It has been argued on behalf of learned Counsel for the allottee respondent No. 1 that the petitioner was initially owner of the shop in dispute but on 16 (or 26) September, 1969, he executed registered gift deed in favour of Smt. Sushila Devi (since deceased and survived by Smt. Shashi Gupta, respondent No. 2 her adopted daughter), hence petitioner was no more landlord. Respondent No. 2 Smt. Shashi Gupta has filed application in this writ petition through Sri Vashishtha Tiwari, learned Counsel. In the said application she has stated that she was not the owner of the shop in dispute, she was not in possession thereof and she has no concern with said shop and petitioner was owner in possession of the said shop in which he was running medical store by the name of Gupta Medical Store. In the said affidavit dated 9.3.2004, filed along with application dated 10.3.2004, Smt. Shashi Gupta further stated that she was duped by one Fateh Chandra Sharma and by misrepresentation he had obtained her no objection on the allotment application filed by respondent No. 1 and that later on she had cancelled the power of attorney of Mahendra Singh Chaudhary, respondent No. 1. Respondent No. 1 filed counter-affidavit to the said application. Smt. Shashi Gupta filed rejoinder-affidavit reiterating the allegations in her original affidavit dated 9.3.2004.
4. Learned counsel for respondent No. 1 has cited two authorities of this Court in Ram Narain v. Vth Additional District and Sessions Judge 1976 AWC 626 and Vikram Singh v. District Judge, Aligarh and Ors. 1978 ARC 416, to contend that even if revision is dismissed as barred by time, order challenged in the revision merges with the order of the revisional court and the court below whose order was challenged in the revision ceases to have any jurisdiction to review its order. Learned counsel for the petitioner has not been able to show that review petition filed by the petitioner remained competent even after dismissal of the revision as barred by time.
5. However, I do not agree with the order dated 21.5.2003 through which delay condonation application of the petitioner seeking condonation of delay in filing revision against the order dated 1.1.2003, was rejected. Petitioner could very well challenge allotment order as well as order rejecting his review petition in one revision. However, the explanation of the petitioner that due to absence of stay order by R.C. and E.O. he was under imminent apprehension of dispossession, hence he" filed the revision against allotment order during pendency of review petition is quite plausible. In any case pendency of review petition is a good ground to "condone the delay In filing appeal or revision.
6. Learned counsel for the petitioner has very vehemently argued that as grave injustice has been done to the petitioner, due to his dispossession one day before filing of the writ petition, hence this Court shall directly determine the validity of the vacancy declaration order and allotment order. However, I do not agree with the argument of learned Counsel for the petitioner in this regard for two reasons. Firstly such a procedure is desirable only if matter is quite old. The Supreme Court has held that in old matters remand shall be avoided. Secondly petitioner ought to have realized that after dismissal of his revision as barred by time on 21.5.2003, his review petition did not remain maintainable, hence he should have challenged that order promptly. He failed to do the same.
7. Accordingly writ petition is allowed in part. Order dated 21.5.2003, is set aside. Delay condonation application of the petitioner is allowed. District Judge, Mathura, is directed to decide the revision directed against allotment order dated 1.1.2003, within four months from the date of production of certified copy of this order. District Judge may either himself decide the revision or transfer the same to any other Additional District Judge. Parties are directed to appear before District Judge on 26.9.2005. If in the revision vacancy declaration order has not been challenged then through amendment the same may also be challenged as the Supreme Court in Achal Mishra v. A.D.J. 2005 (1) ARC 877, has held that in revisions against allotment or release order vacancy declaration order can also be challenged.
8. The property in dispute is a shop. No rent was fixed in the allotment order. However, it has been stated that rent is being paid/deposited at the rate of Rs. 150 per month. For a shop in which medical store was being run rent of Rs. 150 per month is virtually no rent hence it is directed that w.e.f. September 2005 onward respondent No. 1 shall pay or deposit rent of the shop in dispute at the rate of Rs. 1,500 per month.