Heard Sri K.P. Tiwari, learned counsel for the petitioner and Sri K.K. Tiwari, who has accepted notice on behalf of the respondents with the consent of the parties, the writ petition is being finally disposed of.
The respondent/landlord had applied for release of the accommodation in dispute under Section 21(1) (a) of U.P. Act No.13 of 1972. The said application, which was registered as P.A. Case No. 56 of 2005 was allowed ex parte vide judgment and order dated 20.1.2010 passed by the prescribed authority.
Petitioner/tenant applied for setting aside the ex parte order under Rule 22 of the Rules framed under the Act on the allegation that he was not served with any notice of the release application and had no knowledge of the same. The application has been rejected by the impugned order dated 24.7.2010.
Aggrieved the petitioner/tenant has filed this writ petition.
The contention of the learned counsel for the petitioner is that he was never served with any notice of the date fixed in the case and that he had never refused to take notice of the same nor has avoided its service. The Court below on the basis of the endorsement of the post office that the petitioner was not available at his residence held that the service to be sufficient. On such service presuming that the petitioner had the knowledge of the proceedings, rejected the petitioner's application for setting aside the ex parte order.
No doubt such a presumption can be drawn but nonetheless in the present case it is an admitted fact that the petitioner was not served with any notice. The notice on all the occasions was returned with the endorsement that he was not found. However, there is no material to establish that the petitioner deliberately avoided service or that he was available but had actually refused to take the notice. In such circumstances, in the absence of material/finding that the petitioner was avoiding service the court below erred in not allowing the petitioner to the contest the proceedings on merits.
Learned counsel for the respondent has submitted that the petitioner in equity also is not entitled to any relief as he had not tendered rent for the last over 30 years, which fact is disputed by either side.
This aspect can be taken care of otherwise but would not be sufficient to shut the doors of justice.
In view of the above facts and circumstances, the writ petition is finally allowed of and the orders of the court below dated 24.7.2010 and 20.1.2010 are quashed with the following directions that (i) the petitioner would appear before the prescribed authority on 4th October 2010 and file his written statement; (ii) the petitioner would cooperate with the expeditious disposal of the release application and would not take long and unwanted adjournment; (iii) the prescribed authority is directed to decide the release application expeditiously in accordance with law preferably within a period of 6 months from 4th October 2010; (iv) the petitioner would deposit the entire arrears of upto date rent at the rate admitted by the 15th October 2010 and continues to pay rents/damages for use and occupation of the accommodation @ Rs.300/- per month during the pendency of the release application.
Order Date :- 16.9.2010 piyush