1. The instant second appeal is directed against the judgment and order dated 20.3.2018 passed by Additional District Judge, Court no. 4, Kanpur Nagar in Civil Appeal No. 144/12 (Mahendra Nath v. Krishna Murari Garg) and others whereby the learned lower appellate court has dismissed the appeal and has confirmed the judgment and order dated 3.10.2012 passed by Civil Judge, (Junior Division), City, Kanpur Nagar, in Original Suit No. 166/74 of 2006 (Mahendra Nath v. Krishna Murari and others).
2. Heard learned counsel for the plaintiff-appellant and learned counsel for the caveator/respondents on the point of admission and perused the available record.
3. The facts in brief giving rise to the litigation between the parties are that the plaintiff-appellant, Mahendra Nath moved an application before the trial court, i.e. Civil Judge, (Junior Division), Kanpur Nagar, under Order 21 Rule 97 CPC stating therein that he is the tenant of the disputed premises including a garage, tin shed and khaprail shed, situated at the ground floor of house no. 96/6 Chandrika Prasad Bagh, Kanpur Nagar, at the monthly rent of Rs. 10/- per month. Prior to him, one Ram Sewak Nai, was the tenant in the said premises. After the tenanted portion of the house was vacated by Ram Sewak Nai, the applicant filed an allotment application before the Rent Control Officer, Kanpur Nagar, which was allowed on 2.1.1984 and the applicant obtained possession of the tenanted accommodation. Since then, he is living as a tenant in that house. The landlord Krishana Murari Garg (defendant-respondents) filed application for cancellation of allotment which was dismissed on 11.8.96. Therefore, the applicant became the legal tenant of disputed accommodation. The applicant (tenant) tried to give rent to the landlord, but when he refused to receive it and also refused the money order sent by the applicant to him, the applicant started depositing the rent under Section 30 (1) of U.P. Urban Buildings Act No.13 of 1972 in the court of Civil Judge (Junior Division), Kanpur Nagar.
4. It was further stated in the application that on 31.10.2005, the court Amin informed the wife of the applicant that in compliance of a court decree passed on 18.3.1983 in Original Suit No. 1100/1981, the applicant would have to vacate the tenanted accommodation. Thereafter, on 7.11.2005 the applicant perused the file of Suit No. 1100/1981 and found that he has not been made a party in the suit. On the basis of the above facts, the applicant prayed that as he is residing in the tenanted accommodation in pursuance of an allotment order passed by Rent Control Officer and he was not a party in the Original Suit No. 1100/1981, the decree passed in the aforesaid suit cannot be enforced upon him and the order passed regarding his eviction is liable to be dismissed.
5. As the landlord, Krishna Murari Garg, had died by then, his legal heirs filed their objection stating therein that the applicant, Mahendra Nath is neither their tenant nor they have any information regarding the fact that he was depositing rent of the disputed premises, in Civil Court.
6. On the basis of the pleading of the parties the trial court framed the following two issues on 29.8.2009.
(i) Whether the applicant/objector is a legal tenant and is in possession of the disputed accomodation? If so, its effect?
(ii) To what relief, the applicant is entitled?
7. In support of his claim the applicant filed documentary evidence, however, he did not adduce any oral evidence.
8. From the side of plaintiff/decree holder, documentary as well as oral evidence was produced.
9. After hearing the learned counsel for the parties, learned Civil Judge, (Junior Division) dismissed the application of the appellant/applicant/objector moved under Order 21 Rule 97 CPC, by the impugned judgment and order dated 3.10.2012.
10. Being aggrieved the appellant filed an appeal which was also dismissed by learned lower appellate court /Additional District Judge, Kanpur Nagar vide impugned judgment dated 20.3.2018.
11. Now the appellant/applicant is before this Court in second appeal.
12. The legality and correctness of the impugned judgments and orders passed by both the courts below has been challenged in this appeal by learned counsel for the appellant on the grounds that both the courts below have passed the impugned judgments only on the basis of surmises and conjectures, the findings recorded by the courts below are perverse and against the weight of evidence. Learned counsel has contended that by virtue of order dated 2.1.1984, passed by Rent Control Authority, the applicant/appellant is in possession of the disputed accommodation. The review application filed by the landlord against the allotment order has been rejected by the order dated 11.8.1986. Hence, the rent control order dated 2.1.1984 under Section 16(5)(a) of Rent Act had become final. However, the defendant/respondents illegally filed execution case no. 113 of 1988 Krishna Murari Garg v. Ram Sewak Nai suppressing the material facts without impleading the appellant as a party. After the knowledge of the execution proceedings, the appellant filed miscellaneous application under Section 47 and Order 21 Rule 97 CPC annexing the photocopies of the allotment order dated 2.1.84 under Section 16(1)(a) as well as review order dated 11.8.86 under Section 16(5) of U.P. Act No.13, 1972.
13. Learned counsel has submitted that due to lack of proper assistance, the original/certified copies of the orders could not be submitted before the trial Court by the applicant. Therefore, his application was dismissed. It is further submitted that the learned lower appellate court, too, without application of judicial mind, dismissed the appeal filed by the appellant, despite the fact that the appellant had filed original/certified copies of the orders passed by Rent Control Authority under section 16(1) and 16(5) of U.P. Act No.13 of 1972 before the lower appellate court.
14. Learned counsel for the appellant has contended that the learned lower appellate court has failed to consider the legal provision of Section 37 of U.P. Act No.13, 1972 which provides that no order made in exercise of any power conferred by or under this Act shall be called in question in any court; whereas an order purports to have been made and signed by any authority in exercise of any power conferred by or under this Act, a Court shall, unless the contrary is proved, presume that such order was so made by that authority.
15. It is next contended that both the courts below have also failed to consider the legal provision of Section 20 of U.P. Act No.13 of 1972, which creates a bar of suit for eviction of tenant except on the grounds specified under Section 20 of the Act.
16. On the aforesaid grounds it has been prayed that the second appeal be admitted and be allowed by setting aside both the impugned judgments.
17. Per contra, learned counsel for the caveator/respondents has vehemently opposed the appeal by arguing that concurrent findings of facts have been recorded by both the courts below after discussing in detail each and every aspect of the matter, no arguable substantial questions of law is involved in this case. Therefore, the second appeal is liable to be dismissed at the admission stage itself.
18. Having considered the rival submissions advanced by learned counsel for the parties and on a careful perusal of the impugned judgments, it appears that no useful purpose will be served in keeping this matter pending further, which is already pending between the parties since 1981. Accordingly I am deciding this appeal on merits at the admission stage itself.
19. The judgment impugned shows that learned lower appellate court has framed the following two points for determination.
(i) Whether the finding recorded by learned lower court on Issue No. 1 is based on law and facts, after a correct appreciation of evidence on record?
(ii) To what relief, the appellant is entitled?
20. The learned lower appellate court decided the point no.1 affirmatively in favour of the decree holder/landlord and the point no.2 negatively against the applicant/appellant.
21. In the backdrop of the facts and circumstances of the case, there does not appear any illegality or irregularity in the findings recorded by learned lower appellate court. The reasons are as follows:-
22. The Original Suit No. 1100 of 1981, filed by the landlord of the disputed premises namely, Lala Krishna Murari Garg, was decreed, against the original tenant Ram Sewak Nai. The tenant Ram Sewak Nai filed Civil Appeal No. 303 of 1985 which was also dismissed on 4.2.1988. Thereafter, Execution case No. 113 of 1988 was filed by the landlord, which is still pending. In the execution case, Ram Sewak Nai moved an application on 19.10.1989, seeking sometime to vacate the disputed premises but nothing was stated in that application about the allotment of premises to another tenant Mahendra Nath (present appellant).
23. The subsequent tenant Mahendra Nath filed an application under Order 21 Rule 97 CPC in the aforesaid execution suit on 8.11.2005, but he did not appear before this Court to depose orally, due to which the opposite party was deprived of the opportunity to cross examine him on the facts mentioned by him in the affidavit. The appellant, Mahendra Nath, even in this appeal, has not stated anything to show as to why, he did not appear before the trial court to depose.
24. Admittedly, the appellant had filed only photocopies of the orders passed by Rent Control Authority before the trial court. Under these circumstances, the learned trial court held that subsequent tenant Mahendra Nath (appellant), in collusion with Ram Sewak Nai (original tenant) has tried to illegally occupy the rented premises by means of fictitious allotment order and rightly dismissed the suit with cost.
25. The facts of the case also reveal that original suit no. 1100 of 1981 was decreed in favour of the landlord on 18.3.1983 and the appeal filed by the tenant Ram Sewak Nai was dismissed on 4.2.1988. This clearly goes to show that up to the year 1988, the disputed accommodation was under the possession of Ram Sewak Nai as tenant.
26. The present appellant is claiming his right over the disputed premises on the basis of an allotment order dated 2.1.1984 passed by Rent Control Authority. Had he being in possession of the premises in question since 2.1.1984, the original tenant, Ram Sewak Nai must have brought this fact to the knowledge of the executing court. But this fact was never brought into the knowledge of executing court prior to filing of the objection under Order 21 Rule 97 of CPC by applicant Mahendra Nath.
27. Section 16(1)(a) of U.P. Act No.13, 1972 empowers the District Magistrate to require the landlord to let any building which is or has fallen vacant or is about to fall vacant, to any person as specified in the order (to be called an allotment order). Thus, it is necessary that the building to be allotted should be vacant or about to fall vacant in near future before passing of the allotment order.
28. In the present case, as the dispute between the landlord and tenant was pending at the time when the allotment order was passed on 2.1.1984, it cannot be said that the disputed premises was vacant at the time of its allotment or even it was about to fall vacant, because the original tenant, Ram Sewak Nai had already lost its case by the judgments and orders of two courts and was contesting it at the execution stage against the landlord.
29. Mere depositing the rent under Section 30(1) of U.P. Act No.13 of 1972 does not give any right of tenancy to any person. Under these circumstances the lower appellate court rightly held that the tenant Mahendra Nath in collusion with original tenant Ram Sewak Nai, has filed objection under Order 21 Rule 97 CPC, only with a view to defeat the execution case no.113 of 1988 and with malafide design to prevent the decree holder from getting the fruits of decree.
30. In so far as the applicability of Section 20 of U.P. Act No.13, 1972 in this case is concerned, it is to be kept in mind that the impugned order has been passed in execution of the appellate decree, whereas Section 20 of the U.P Act No.13 of 1972 provides for bar of "suit" for eviction of tenant except on the grounds mentioned in the aforesaid section.
31. In the present case, the parties have already litigated to the extent of execution of appellate decree. Therefore, Section 20 which restricts the institution of 'suit' for eviction of tenant except on some specified grounds, has no application.
32. In view of the aforesaid facts and circumstances this Court is of the considered view that this second appeal has been filed with malafide intention to prolong further the litigation between landlord and the tenant pending since more than 37 years and to prevent the landlord to get the fruits of decree despite the fact that he is litigating since the year 1981. The appeal is liable to be dismissed at the admission stage itself for the aforesaid reasons.
33. Accordingly, the appeal is dismissed at the admission stage itself with costs.
34. A copy of this judgment be sent immediately by FAX to the Executing Court with direction to decide the execution case within two months from the date of receiving of this order.
Order Date :- 27.9.2018 Harshita