Heard learned counsel for the parties and perused the record.
This writ petition has been filed with the prayer for quashing the orders dated 23.12.2008 passed by IInd Additional Civil Judge (Junior Division), Kanpur Nagar in Misc. Case No. 1/74/2007 and order date 31.8.2007 passed by Additional Civil Judge (Junior Division), Kanpur Nagar in P.A. Case No. 31 of 2001: Smt. Vinod Bhandari vs. Madan Lal Agarwal (since deceased).
The brief facts of the case are that the petitioner is a tenant of premises no. 40/4 Parade Kanpur Nagar. The respondent-landlord filed an application under section 21 (1) (a) which was registered as Rent Case No. 31 of 2001 of U.P. Urban Building Regulation of Letting (Rent and Eviction) Act, 1972, hereafter referred to as 'Act' for release of the accommodation in dispute for her need. The release application was contested by father of the petitioner Madan Lal Agarwal by filing written statement to inter alia that he was tenant of the premises in dispute.
During pendency of the proceedings in Rent Case No. 31 of 2001, Madan Lal Agarwal expired on 18.7.2004. Thereafter, the petitioner-Jawahar Lal Agarwal being his son continued in accommodation in dispute on the ground that tenancy devolved upon him as a tenant. The Rent Case No. 31 of 2001 proceeded ex parte and was decided by order dated 31.8.2007 in favour of the landlord. In the aforesaid circumstances, the petitioner approached his counsel on 20.9.2007 and enquired about the case and upon an inspection came to know on 22.9.2007 that the Prescribed Authority has allowed the release application on 31.8.2007.
Thereafter, an application under Order 9 Rule 13 read with Section 34 (1) (g) and Rule 22 (b) (f) for restoration and recalling the ex parte order dated 31.8.2007 along with an affidavit was filed inter alia that he had no knowledge of the proceedings. It was averred in the application that no registered notice or summon was received by the petitioner and the endorsement of refusal on envelop has been obtained by the landlord in collusion with the local postman and that he had also approached his counsel, but intimated that he would move substitution application after receiving notices.
One of the ground has also been taken by the petitioner that he did not file paper no. 37 intimating the Court about death of his father Madan Lal Agarwal and the aforesaid paper is a forged document which does not contain his signature.
Counter affidavit was filed by the landlord denying the averments of affidavit inter alia that substitution was allowed on 28.9.2004 when notice by registered post was refused by the petitioner. It was also stated in the counter affidavit that after transferring the case from one court to another court the petitioner was again intimated who made an endorsement that he had no instructions after death of his client and, therefore, the Court rightly proceeded ex parte. Per contra learned counsel for the petitioner had also filed rejoinder affidavit denying the averments of the counter affidavit.
Consequently, the court below vide its order dated 23.12.2008 rejected the restoration application of the petitioner. Hence the present writ petition.
The contention of learned counsel for the petitioner is that the courts below have committed gross illegality in rejecting the restoration application as it did not consider that no notice of the substitution application was ever received or served upon the petitioner and that the report regarding refusal of registered notice was collusive and was obtained by the respondent in collusion with the postman. It was also stated that the petitioner has no concern with the premises no. 40/3 and 40/3B Parade Kanpur and, therefore, notice sent upon the aforesaid address could not deemed to have been served upon the petitioner who is resident of premise in dispute being premise no. 40/4. It is lastly contended by the petitioner that the courts below has failed to consider that notices should actually be served upon him and mere sending of notice is not sufficient and that the restoration application was filed within a month without any delay.
Per contra learned counsel for the respondent has submitted that admittedly the petitioner had contacted his counsel on 20.9.2007 and enquired about the case. It is further submitted that the petitioner had also come to know the case having been decided after he made an inspection on 22.9.2007 and that in the aforesaid backdrop he had also moved recall application on 26.9.2007 though he denies moving of such application.
It has also been stated by the learned counsel for the petitioner that it is admitted fact by the petitioner that his counsel had advised him that he will contest his case after the petitioner receives notice through summon,therefore, it cannot be said that the petitioner had no knowledge about the ex parte order within time. What has been averred in the restoration application is that he had not received any notice by registered post. This statement can also be read in the manner that, he did not deliberately receive the summons to delay the matter on advice of his counsel that he should do pairvi in the case only after receipt of the notice/summon as such avoided its service through post. The petitioner knew about ex parte order and notice having been sent by the court.
In the circumstances, for all the reasons stated above, it cannot be said that the courts below have committed any illegality in rejecting the restoration application.
The writ petition is, accordingly, dismissed.
Dated: 22.9.2010 RCT/-