JUDGMENT Prakash Krishna, J.
1. The aforesaid three writ petitions were heard together and the learned counsel for the parties agreed that the Writ Petition No. 42239 of 1998 be treated as leading case.
2. The leading writ petition arises out of execution of a release order passed on the ground of bona fide need of the petitioner under Section 21 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) in favour of the petitioner, Mohd. Akbar Ilyas (hereinafter referred to as landlord). The other two writ petitions are off shoots of the execution of the release order.
3. It is said that real difficulty arises only when a person becomes a decree holder. The facts of these petitions do disclose a sorry state of affairs. A release order which was passed in favour of the petitioner (landlord) as far back as on 20th of April, 1978 by the Prescribed Authority and was confirmed by the first appellate authority on 14.10.1981 and was thereafter confirmed in the Writ Petition No. 589 of 1992 on 20.11.1985 is still awaiting its execution due to the successive attempts made by the judgment debtor and other persons to nullify it. Two decades have passed away still the landlord Mohd. Akbar Ilyas who is the petitioner in the leading writ petition is unable to reap the fruits of the release order.
First Round of litigation, against tenant Ashfaq Ali Khan :
4. Late Dr. Mohd. Ilyas, father of the petitioner and of the respondent No. 3 filed an application under Section 21 (1) (a) of the Act for release of southern portion of the premises No. 88/450 Chaman Ganj, Kanpur under Section 21 (a) of Act for release. The said release application was filed on the ground of bona fide need to establish his son, the present petitioner, who is an advocate, in the disputed accommodation. The tenant namely Ashfaq Ali Khan contested the said release application tooth and nail. Ultimately the accommodation in possession of the tenant Ashfaq Ali Khan was released by the statutory authority (Prescribed Authority) for the bona fide need of the landlord by the order dated 20th of April, 1978 vide Annexure-5 to the writ petition. This order was confirmed in rent appeal No. 37 of 1978 by the first appellate authority by its judgment dated 14th of October, 1981, Undaunted by failure Ashfaq Ali Khan filed a Writ Petition No. 589 of 1982 which was dismissed by this Court by the judgment dated 20th of November, 1985 and two months' time was granted to the tenant to vacate the accommodation in dispute. This was the first round of the litigation.
5. During the continuance of the release proceedings Dr. Mohd. Ilyas, the father of the petitioner expired in the year 1978 and in his place his heirs namely the petitioner and his mother and two sisters, one of them is respondent No. 3 (Jamila Khatoon) were impleaded in the proceedings. After the death of Dr. Mohd. Ilyas the need of the petitioner landlord was set up, under Section 21 (1) (7) of the Act. The need of respondent No. 3 was neither set up nor it was released for her need. The need of the petitioner was found bona fide.
6. Application under Section 23 of the Act for delivery of released portion, giving details of the accommodation in occupation of the tenant of premises No. 88/150 Chamanganj, Kanpur was filed, a copy of which has been enclosed as Annexure-7 to the writ petition.
Second round of litigation, at the instance of a third party (Syed Aafaq Ahmad Zaidi) :
7. One Syed Aafaq Ahmad Zaidi filed objections against the aforesaid application filed under Section 23 of the Act on the allegations that originally disputed accommodation was in the tenancy of Ashfaq Ali Khan who on or about December, 1972 surrendered his tenancy right in his favour and the landlord accepted him as tenant and he has paid a sum of Rs. 5,000 vide receipt dated 19.12.1972 as advance rent of the accommodation. The said rent receipt was duly signed by Mohd. Ilyas, father of the petitioner.
Now the second round of the litigation started at the instance of Syed Aafaq Ahmed Zaidi.
8. The said objections were rejected by the Prescribed Authority by the order dated 8.10.1984 on the finding that the objector is not tenant of the disputed accommodation nor he could produce any evidence in support of his plea. Thereafter, Syed Aafaq Ahmed Zaidi (3rd party) filed a Suit No. 1389 of 1981 for permanent injunction restraining the present petitioner and others not to dispossess him in pursuance of the release order dated 20th of April, 1978 passed in Rent Case No. 96 of 1977 by the Prescribed Authority, Kanpur as subsequently confirmed in Rent Appeal No. 37 of 1978. Boundaries of the property in dispute in the suit exactly tally with the boundaries as mentioned by landlord in the application under Section 23 of the Act.
9. Allegation is that the said suit was filed by Syed Aafaq Ahmed Zaidi in collusion with Ashfaq Ali Khan (outgoing tenant). No injunction order was passed. The suit was dismissed in default. It was restored subsequently. It was again dismissed and was again restored. Ultimately the suit was dismissed finally. Sufficient time lapsed in these proceedings but the execution of release order could not be proceeded further due to pendency of the suit.
10. Another Suit No. 475 of 1986 was filed by Syed Aafaq Ahmed Zaidi for injunction more or less on the identical pleas. The injunction was also refused in the suit. The injunction matter was taken up in appeal No. 9 of 1987 which was also dismissed by the order dated 19th of January, 1987 by the Third Additional District Judge, Kanpur. Thereafter a Writ Petition No. 2596 of 1987 was filed in this Court against refusing to grant injunction. This was dismissed as withdrawn. Ashfaq Ali Khan filed two writ petitions No. 17458 of 1987 and connected with Writ Petition No. 1169 of 1998 in this Court challenging the order dated 14.5.1987 dismissing the application filed by him for recall of the release order dated 20.4.1978 and for quashing the execution proceedings in pursuance of the release order under Section 23 of the Act. Both these writ petitions were dismissed by this Court. It is appropriate to quote some of the observations made in the body of the judgment :
"The facts stated above will clearly show that the present proceedings are nothing but an abuse of the process of the Court. The conduct of the petitioner in this case is highly deplorable and smacks cunningness. The filing of the objection again before the Prescribed Authority out of which the present writ petition arises was clearly frivolous and vexatious. The course adopted by the petitioner is destructive of basic principle of the administration of the justice.".............................................................................................................................
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................................................................................... The proceedings taken by the petitioner is direct attack on the status of this Court as the highest in hierarchy of judicial administration in the State. This is a fit case where the Prescribed Authority may take immediate steps to enforce the release order passed under Section 23 of the Act, the validity of which has been upheld upto the state of writ petition by this Court."
11. This order was passed on 13th May, 1988 and the High Court desired that time has come when the landlord should be put in possession of the released accommodation in his favour. But the hope of the High Court was belied. Undeterred, by the strong observations made by this Court in the above writ petitions Aafaq Ahmed Zaidi again raised an objection that the landlord wants to take possession of the portion which is allegedly in his possession and the portion under tenancy of Ashfaq Ali Khan has been released to the landlord. A confusion was sought to be created by raising a plea that the release order could not be executed in view of its ambiguity and uncertainty in respect of portion which has been released in favour of the landlord. This objection was considered and rejected by a well reasoned order dated 10th of June, 1988 passed by the Prescribed Authority, filed as Annexure-19 to the writ petition. The relevant portion is quoted below :
"It is also evident from documents on record that Shri Aafaq is in possession of portion which was under tenancy of Shri Ashfaq. It can also not be disputed that the possession of Shri Aafaq in the premises in question is not any authority of law but he is simply a tresspasser thereof. From perusal of record and writ of possession issued earlier but not executed, there remains no ambiguity of uncertainty in respect of portion, which has been released in favour of landlord."
Third round of litigation at the instance of respondent No. 2 :
12. Having lost from all the corners Aafaq Ahmed Zaidi left the scene and Riazuddin, the present contesting respondent No. 2 entered into the scene. This gave the birth of third round of litigation. Now Riazuddin filed an objection dated 8.7.1988 under Section 23 of the Act. He came up with the case that although one Aafaq Ahmed had filed objections which were rejected earlier, but Ashfaq Ali Khan the original tenant, left the accommodation occupied by him in which Smt. Jamila Khatoon, one of the co-landlord is in occupation and thus the release order stood "exhausted and there remained nothing to be enforced/executed." He also set up a case that he is tenant of a different portion and had advanced a sum of Rs. 15,000 adjustable towards the rent (plea which was similar to the plea of Ashfaq Ali Khan regarding the payment of Rs. 5,000 as advance), claimed tenancy rights on a monthly of Rs. 25 since 1971. This objection was dismissed by the Prescribed Authority by its order dated 23rd of August, 1988. The Prescribed Authority directed issuance of writ of possession immediately. Against this very order a Writ Petition No. 16894 of 1988 was filed in this Court which was ultimately got dismissed on 7.10.1988, as in the mean time Riazuddin filed original suit No. 1033 of 1988. The interim relief by way of injunction was claimed in the suit which was granted by the trial court and confirmed in appeal challenging the interim injunction orders, the Writ Petition No. 10286 of 1990 has been filed which is connected with the leading case.
13. The third Writ Petition No. 20116 of 1997 has been filed by Riazuddin for quashing the orders dated 31.3.1997, 4.4.1997, 27.5.1997 and 23.11.1997 ordering the issuance of writ for delivery of possession passed by the Prescribed Authority. In this writ petition during summer vacation an interim order dated 13th June, 1997 directing the parties to maintain status quo till the next date of listing, was passed.
14. In the leading Writ Petition No. 42239 of 1998 quashing of the impugned orders dated 19th September, 1998 and 31st of October, 1998 have been prayed. In addition to it a writ in the nature of mandamus commanding the respondent No. 1 to execute the release order dated 20.4.1978 under Section 21 (1) (a) of the Act and to put the petitioner into possession of the accommodation described in the relief clause has been claimed. The necessity to file this writ petition arose on account of fact that the Prescribed Authority later on very conveniently rejected the execution application filed under Section 23 of the Act on the short ground that as per allegation of Smt. Jamila Khatoon, (sister of the petitioner), she has been delivered possession of the disputed accommodation. The executing court has come to the conclusion that it is a dispute being between two co-landlords, the same cannot be adjudicated upon in the proceedings under Section 23 of the Act.
15. At this juncture the case of the present petitioner is that Smt. Jamila Khatoon has colluded with Riazuddin, the defendant No. 2 and possession has not been delivered to Smt. Jamila Khatoon at all. Collusion and fraud vitiated the entire proceedings. It was the landlord who has been contesting all the proceedings throughout since 1973 and was told by the executing court that too at the instance of a stranger, that he can reap the fruits of the release order.
16. Heard the counsel for the parties at great length and thoroughly perused the record of the case.
17. The locus standi, of Riazuddin, the respondent No. 2 to object the delivery of possession to landlord in pursuance of the release order, is the moot question involved in all the three writ petitions.
18. The learned counsel for the petitioner invited my attention towards the release application and the release order and submitted that the release application was filed for the need of the petitioner who is an advocate to establish him for brighter prospects for having a good office, a necessity for a practising advocate.
19. The said release application was allowed. During the pendency of the appeal Dr. Mohammad Ilyas, the father of the petitioner expired and his son, daughters and widow were substituted. The appellate court considered the need of the petitioner and his mother only. The relevant portion is quoted below :
"The present petitioner Nos. 1 and 2 namely Sri Akbar Ilyas and Smt. Tameeza Khatoon are the son and widow of the petitioner Dr. Mohd. Ilyas and they were living with the original petitioner in house No. 102/79, it is only for their needs that the present application is now being pressed after the death of the original landlord."
20. Now the question that falls immediately for the determination is as to whether the impugned orders in the leading writ petition passed by the respondent No. 1 holding that possession having been delivered to Jamila Khatoon is legally sound? To decide this question it is necessary to have a look to the provisions of Section 21 and Section 23 of the Act.
21. Section 23 of the Act reads as follows :
"Enforcement of Eviction Order.--(1) The Prescribed Authority may use or cause to be used such force as may be necessary for evicting any tenant against whom an order is made under Section 21 or on appeal under Section 22, as the case may be, or against any person found in actual possession, and for putting the landlord into possession.
(2) Every order of the Prescribed Authority in proceedings under this section shall be final."
The Section 23 casts statutory obligation : (1) to evict any tenant against whom an order has been made or (2) against any other person found in actual possession and (3) put the landlord into possession.
22. Riazuddin is the person who is in actual possession of the released portion. It is duty of the Prescribed Authority to evict him by using force and put the landlord into possession. The word "landlord" in this provision should have a restricted meaning. 'Landlord' has been defined in Section 3 (j) of the Act. The relevant portion is quoted below :
"In this Act unless the context otherwise requires :
(a)...........................................................................................
(b)...........................................................................................
(c)...........................................................................................
(d)...........................................................................................
(e)...........................................................................................
(f)...........................................................................................
(g)...........................................................................................
(h)...........................................................................................
(i)...........................................................................................
(j) 'landlord' in relation to building, means a person to whom its rent is or if the building, were let would be, payable, and includes, except in Clause (g), his agent or attorney, of such person."
23. The definition of 'landlord' as given in the definition clause is subject to "unless the context otherwise requires". Admittedly the release was sought for and was granted for the need of Mohd. Akhtar Ilyas, the petitioner, landlord, Smt. Jamila Khatoon's need was not set up in the release application. She became the co-landlord after the death of the father of the petitioner being one of the daughters. The word 'landlord' in Section 23 shall draw its colour from the word 'landlord' used in Section 21 of the Act. As a matter of plain grammatical construction it is obvious that the word 'landlord' under Section 23 of the Act should be interpreted with reference to Section 21 (i) (a) of Sub-section (7) of Section 21. Sub-section (7) of Section 21 provides that after the death of a landlord the release application can be prosecuted by the legal representatives "on the basis of their own need in substitution of need of deceased (landlord)".
24. The Supreme Court in a case under Tamil Nadu Buildings (Lease and Rent Control) Act, K. V. Muthu v. Anga Muthu Ammal. AIR 1997 SC 628, has held that the effect of words "unless context otherwise requires" in the definition clause has to be read in the light of the context and scheme of the Act as also the object for which the Act was made by the legislator. While interpreting the definition, it has to be borne in mind that interpretation placed on it should not only be not repugnant to the context, it should also be such as would aid the achievement of the parties which is sought to be served by the Act. A construction which would defeat or so likely to defeat the purpose of the Act has to be ignored and not accepted. If a wider meaning is given to landlord to include the whole body of the landlord under Section 23 of the Act it would defeat the very purpose and object of Section 21 of the Act. Section 24 of the Act gives option of re-entry to the tenant evicted in the proceedings under Section 21 of the Act. The object of the Act will be achieved only when the possession of the released accommodation is delivered to that landlord for whom it was released.
25. The learned counsel for the petitioner has placed reliance in the case of Smt. Dhanwanti Devi v. Shri Ram Shanker Prasad, 1982 ARC 747. This Court in para 17 has considered Section 21 (7) and Section 23 of the Act and has held that in view of Sub-section (7) of Section 21 it is clear that only those legal representatives have right to claim eviction under Section 23 whose needs and hardships have been subject to the scrutiny of the Prescribed Authority. This case law clearly supports the contention of the learned counsel of the petitioner that the possession could have been delivered under Section 23 of the Act to the present petitioner and not to Smt. Jamila Khatoon.
26. I am of the firm opinion that the finding of the Prescribed Authority in the impugned orders that possession has been delivered to Smt. Jamila Khatoon and as such the execution cannot be proceeded with any further is based upon no evidence and the said finding besides being perverse is also illegal. The impugned orders do suffer from manifest error apparent on the face of record. It is duty of the Court to see that the person in whose favour release order has been passed gets its fruits. I am of the firm view that both the impugned orders cannot be allowed to stand.
27. The sole basis for rejecting the execution application to deliver the possession to the landlord is the alleged affidavit filed by Smt. Jamila Khatoon, the co-landlord. The Prescribed Authority has not gone into the question of collusion which is writ large. During the course of argument the learned counsel for Riazuddin could not point out as to on what point of time possession was delivered to Smt. Jamila Khatoon and who has delivered the possession to her. The crux of the order of the Prescribed Authority is that possession has been delivered to Smt. Jamila Khatoon. The said affidavit is wholly vague and lacks material particulars. The present petitioner is fighting the litigation since last more than two decades. All of sudden when the erstwhile tenant has lost and thereafter Sayed Aafaq Ahamed Zaidi lost and the possession was going to be delivered to the present petitioner, Riazuddin came in the fray. When order of delivery of possession was passed he obtained status quo order from this Court and thereafter an affidavit purporting to be on behalf of Smt. Jamila Khatoon has been filed, a copy of which was never served on the counsel of the present petitioner namely Mohd. Akbar Ilias.
28. On coming to know of the filling of the aforesaid affidavit of Smt. Jamila Khatoon the petitioner filed an application under Order XIX Rules 1 and 2, C.P.C. read with Section 34 (1) (a) of the said Act for permission to cross-examine her on the ground that Smt. Jamila Khatoon has colluded with Riazuddin in order to injure the interest and right of the applicant. The contents of paras 6 to 13 of this application are quoted below :
"6. That Smt. Jamila Khatoon has filed her application and affidavit, out of ill will and having recently become hostile against the Applicant No. 1/1 and his family. The relations between the applicant Nos. 1/1 and 1/4 are strained now and they are not even on visiting terms nor wishing terms.
7. That Smt. Jamila Khatoon is in collusion with Raizuddin in order to injure the interest and rights of the applicant No. 1/1 so that the applicant No. 1/1 could not reap the fruits of the release order.
8. That the aforesaid application and affidavit dated 30.7.1997 are collusive one with mala fide intention and in the circumstances the veracity and genuineness of the said affidavit need be judged in this case.
9. That the said Smt. Jamila Khatoon now falsely alleged that possession of the released portion has been delivered to her and that she has added that released portion in her possession.
10. That this is a new version which has never been earlier taken by her or the unauthorised occupant in this case and was never intimated to this applicant No. 1/1 even till now.
11. That in fact no possession of the released portion was ever delivered to the said Smt. Jamila Khatoon and was never added with her residential portion.
12. That the said released portion is still continuing under illegal occupation of Riazuddin in contravention of that release order.
13. That in the alternative Smt. Jamila Khatoon had no right to take delivery of possession of the released portion inasmuch as the same was released for the exclusive use of the advocate applicant No. 1/1 and his family members."
29. The application was rejected by the executing court by its order dated 20.5.1998 on the short ground that since Smt. Jamila Khatoon who is co-landlady having admitted the delivery of possession the further execution is struck off. Thereafter the executing court passed the orders dated 19.9.1998 and 31st of October, 1998 refuse to recall the order dated 19.9.1998 rejecting the application for delivery of possession under Section 23 of the Act being not maintainable. These orders have been annexed as Annexures-32 and 33 to the writ petition. The crux of the order is that the possession having been delivered to Smt. Jamila Khatoon the application for possession does not survive.
30. The executing court found it convenient to set at naught the efforts, time and energy so spent by the landlord and the various judgments passed by the High Court on the earlier occasions by the executing court itself as mentioned supra in a cursory manner. The basis of the impugned orders is the application and the affidavit of Smt. Jamila Khatoon, the validity of its veracity and genuineness was very much doubted by the landlord. He questioned the truthfulness of the affidavits of Smt. Jamila Khatoon by filing an application for permission to cross-examine her. Strangely enough the executing court has preferred to rely upon a document which was under challenge by the petitioner without caring to examine its genuineness and validity.
31. One important factor to be noticed is that it is the respondent No. 2 Riazuddin who has been contesting the present writ petition and Smt. Jamila Khatoon, the respondent No. 3, has not come forward to contest it. From the perusal of the impugned orders it is clear that Riazuddin has been contesting all through and is instrumental in passing of the impugned orders and Smt. Jamila Khatoon has not come forward. The affidavit and application of Smt. Jamila Khatoon were got filed in the High Court through a lawyer in Writ Petition No. 20166 of 1999. A copy of which was not served on the petitioner's counsel.
32. I have considered the application and affidavit of Smt. Jamila Khatoon. A bare perusal of the affidavit clearly shows that it is nothing but a collusive affidavit. She has stated in paragraphs 3, 4 and 5 thereof that she got peaceful possession in pursuance of the release order dated 20.4.1978 and she is residing therein. Further in paragraph 5 she has stated that Riazuddin, advocate, is residing in a different portion as a tenant since 1971 in pursuance of rent note of the year 1975 and that portion is quite separate to the released portion. These averments are against the voluminous evidence on the record.
Locus standi of Riazuddin :
33. The objections of Riazuddin to the application for delivery of possession are mainly (i) He is in occupation of a different portion of the house under a separate contract of tenancy, not connected with the outgoing tenant Ashfaq Ali Khan (against whom release orders were passed) and Aafaq Ahamed Zaidi. (ii) Ashfaq Ali Khan left the accommodation occupied by him and Smt. Jamila Khatoon and her husband have occupied the same. Thus, the release order stood exhausted. The said objections are dated 8th of July, 1988 and have been filed as Annexure-20 to the main writ petition. The objector Riazuddin has not mentioned boundaries of the alleged tenanted portion to him. But he has given the boundaries of the tenanted accommodation in the Suit No. 1033 of 1988.
34. I must say at once that story put forward by Riazuddin in the objection that he is in occupation as a tenant of a different portion than one released in favour of the landlord incredulous to say the least it is absurd on the face of it. It appears that there was no dispute in between the landlord and tenant Aafaq Ahamed Zaidi regarding the extent of the portion in tenancy of Ashfaq Ali Khan in the release proceedings. A commission was issued in those proceedings. The report of the Commissioner is Annexure-4 to the writ petition. He has described the tenanted accommodation in para 3 of the report. Four rooms, Dalan, open roof, kitchen and latrine, tin shed on the first floor and two rooms and verandah in front of rooms on the ground floor towards the southern side of the building No. 88/150 Chamanganj, Kanpur. The boundaries given in the application for execution of the release order are as follows :
Boundary of 1st Floor Portion :
North.--Common passage and wall, thereafter in northern portion is the tenancy of Amjad Ali.
South.--Wall of the house thereafter H. No. 88/151.
East.--Balcony thereafter Government Road.
West.--Wall of house thereafter portion in occupation of applicant No. 1/4.
Boundary of Ground Floor Portion, i.e., Two rooms North.--Wall and door at the room thereafter room in tenancy of M. R. Ansari.
South.--Wall of the house thereafter H. No. 88/151.
East.--Courtyard and boundary wall thereafter Government Road.
West.--Wall of the rooms thereafter portion in the tenancy of Barkat Ali.
The same boundaries have been mentioned by Aafaq Ahamed Zaidi who fought the second round of litigation by way of filing objections and institution of suit No. 1389 of 1981 and the writ petitions, etc.
35. Successive Dakhal Parwanas were issued in respect of the aforesaid portion described by the aforesaid boundaries. The plea of the respondent No. 2 Riazuddin that he is in occupation of a different portion than the one in respect of which release order has been passed is bogus and absurd. The respondent No. 2 came into the scene when the dakhal parwans was sought to be executed against the outgoing tenant and thereafter the third party namely Sayed Aafaq Ahmed Zaidi. This Court is concerned with the delivery of possession to the petitioner qua the released accommodation. It has already been noted in the earlier part of the judgment that this Court by its order dated 13.5.1988 directed the Prescribed Authority to take immediate steps to enforce the release order passed under Section 23 of the Act, the validity of which has been upheld upto the stage of writ petition by this Court. The executing court namely the Prescribed Authority under the Act also considered this aspect of the matter in great detail. The executing court has considered the objection and rejected the same vide order dated 23rd of August, 1988. The orders of the Prescribed Authority impugned in the Writ Petition No. 20166 of 1997 are perfectly justified and no illegality could be pointed out by the counsel of Riazuddin. The respondent No. 1 has not found that Riazuddin is in occupation of a different accommodation than the released one in any of its orders. Therefore, Riazuddin has no locus to contest the present proceedings.
36. The executing court ordered the issue of writ of possession immediately and directed the concerned Police Station Officer to comply with the order and submit report.
37. Thereafter again fresh objections though barred by principle of res judicata on the similar pleas were filed by Riazuddin. The same were rejected by the order dated 18.8.1989 vide Annexure-24 of the writ petition. The IVth Additional Civil Judge, Prescribed Authority, took a very serious view of the matter that the release order obtained by the landlord has been confirmed upto the High Court and if any person wants to resist the execution of the delivery of possession, he is liable to be evicted otherwise it would amount non-compliance of the High Court's order. Order for immediate delivery of possession was issued. Copy of the said order dated 18.8.1989 has been filed as Annexure-24 to the writ petition. Copy of the delivery of possession has been annexed as Annexure-25 to the writ petition. It appears that police in collusion with Riazuddin submitted a report dated 22.9.1996 in favour of Riazuddin. Riazuddin was found in possession of the disputed accommodation. The police returned the order of delivery of possession unexecuted. The executing court passed a detailed order dated 23.11.1996 vide Annexure-26 to the writ petition rejecting the police report dated 22.9.1996 and directing the police to deliver the possession and submit the report within 15 days. Thereafter an application was filed by Riazuddin to recall the order dated 23.11.1996 repeating the same pleas. This application was rejected by a very detailed order dated 31.3.1997 vide Annexure-27 to the writ petition. The executing court reiterated that the police should immediately deliver the possession to the landlord and there was no error in the order dated 23.11.1996. Although objections of Riazuddin were rejected, reviewed and recall applications for rejecting the objections were also rejected and specific order for putting the landlord into possession were passed from time to time by the executing court, Riazuddin filed a fresh application No. 169 repeating the old pleas for issuance of Commission. The said application was rejected by the order dated 27.5.1997.
38. The sum and substance of the aforesaid discussion is that Riazuddin is abusing the process of Court by raising frivolous pleas again and again and has been successful in postponing the execution of release order. The release order was passed in the year 1978 and could not be executed due to the abuse of the process by Shri Aafaq Ahamed Zaidi up to the year 1998 when his Writ Petition No. 1169 of 1988 was dismissed on 13.5.1988 and subsequent application was dismissed by the executing court in June, 1998. Immediately thereafter on 8th of July, 1988 objections were filed by Riazuddin. Riazuddin came into occupation of the disputed accommodation when Ashfaq Ahamed Zaidi lost up to High Court stage. I have demonstrated that Riazuddin is resisting execution of the warrant of delivery of possession in respect of the same accommodation which was originally in the tenancy of Ashfaq Ali Khan and thereafter in possession of Aafaq Ahamed Zaidi. The one and the only conclusion from the facts of the case is that he alleged rent note in favour of Riazuddin is an act of forgery and he is a rank tresspasser having no right, title or interest.
39. The Writ Petition No. 20166 of 1997 was filed in this Court by Riazuddin challenging the various orders passed by the executing court ordering the delivery of possession and rejecting the successive objections filed by him in execution proceedings. An interim order of status quo was obtained in the said writ petition. The stay matter and the admission of the writ petition came up for hearing on 26th November, 1997. On that day this Court passed an order directing the executing court to demarcate the portion in occupation of Riazuddin that the one released in favour of the petitioner. The said order was passed on the footings that the counsel for both the parties agreed that the portion which is said to have been let out to Riazuddin is different from the portion which was let out to Ashfaq. In pursuance of the said order the proceedings were started before the executing court. In those proceedings for the first time an affidavit and application were filed by Smt. Jamila Khatoon (supra) stating that the proceedings for delivery of possession may be dropped as she has already obtained the possession from the tenant. The petitioner was shocked and was taken aback. According to him Riazuddin continued to be in possession of the released accommodation. The affidavit purported to be of Smt. Jamila Khatoon is dated 29th July, 1997 filed on 30th July, 1997 along with an application. Immediately the said affidavit and application were filed in the High Court in Writ Petition No. 20166 of 1997 without serving a copy to the present petitioner. I have already demonstrated in the earlier part of the judgment that Riazuddin has come in occupation of the disputed accommodation released in favour of the petitioner some time in the year 1978 when Sayed Aafaq Ahamed Zaidi lost up to the High Court stage. The executing court without making a categorical analysis of the affidavit of Smt. Jamila Khatoon committed gross error of law in rejecting he execution application. It is a case of total non-application of mind by the executing court. This has further perpetuated injustice to the petitioner landlord. It is unfortunate that the executing court has taken the averments made in the affidavit as gospel truth. If the affidavit is ignored there is no material to show on the record that the possession has been delivered to Smt. Jamila Khatoon.
40. It was then contended by the counsel of Shri Riazuddin that he has purchased the undivided share from Smt. Jamila Khatoon by means of a registered sale deed of the same date on which she sworn the supporting affidavit in favour of Riazuddin. It was contended that Riazuddin being a tenant and having purchased unpartitioned share from Jamila Khatoon has become a co-landlord and therefore the execution of the release order cannot be proceeded with further. This argument is liable to be rejected at its very threshold. No such plea has been set up by him in the counter-affidavit nor a copy of the sale deed was placed on the record. During the course of argument at the instance of the counsel of Riazuddin the case was adjourned to enable him to file a copy of the sale deed. A photostat copy of the sale deed has been filed. Be that as it may I have not prepared to accept the said document on the record as there is no pleading to that effect by Riazuddin.
41. Secondly the said argument on merits has apparently no force in view of the findings recorded by me as well as by the authorities below that Riazuddin is not tenant of the disputed accommodation. He is a rank trespasser. There is no question of any merger of interest.
42. The Supreme Court in the case of Syed Asadullah Kazmi v. A.D.J., 1981 ARC 542, had an occasion to interpret Section 23 of the Act. It has been interpreted by the Supreme Court that once the release order having become final it cannot be reopened by the Prescribed Authority on the ground of subsequent events. The Supreme Court has observed as follows :
"Plainly, the order dated 25th March, 1977 of the appellate authority releasing a portion of the premises in favour of the third respondent and leaving the remaining portion in the tenancy of the appellant acquired finality when the proceedings taken against it by the appellant failed. The order having become final, the Prescribed Authority was bound to give effect to it. In doing so, the Prescribed Authority was not acting outside its jurisdiction or contrary to law. ..............the order for release of a portion of the accommodation acquired finality before the death of Raj Kumar Sinha and the controversy concluded by it could not be reopened."
43. An argument was raised by the learned counsel for the respondent that in Writ Petition No. 20166 of 1997 this Court passed an interlocutory order dated 26.11.1997 directing the Prescribed Authority to demarcate the released portion as well as the portion in possession of Riazuddin. This order was passed on the basis that the counsel for the parties agreed that the portion which is said to have been let out to Shri Riazuddin by late Dr. Mohd. Iliyas is different from the released portion. However, soon thereafter the landlord filed an application for correction/ recall of the aforesaid order on the ground that the petitioner never agreed that the portion let out to Shri Ashfaq Ahamed was different from the none which is in occupation of Riazuddin. The said application is dated 24th July, 1998 and is still indisposed of. In support of the application a detailed affidavit of the petitioner has been filed to demonstrate that the said part of the order has been crept due to some inadvertence or misconception without looking on the record of the case. Having heard the counsel for the parties on this application. I am satisfied that the said portion in the order dated 26.11.1997 has been crept into due to some inadvertence or crept mistake. Therefore, I correct the order dated 26.11.1997 by suitably modifying it and deleting the averments with respect to the agreement of the counsel of the parties that the portion which is said to have been let out to Riazuddin by late Dr. Mohammad Iliyas is different from the portion which was let out to Ashfaq. The correction application stands allowed.
44. In view of the findings recorded above the civil court committed illegality in granting temporary injunction orders. They have granted injunction order without caring to look into the release order passed under the Act and the orders of this Court in the writ petitions. The civil court has granted the interim order on the basis of the rent note and the rent receipt which are fake documents. The suit itself was not maintainable, therefore, the injunction orders are vacated and the Writ Petition No. 10286 of 1990 is allowed. For the same reasons there is no merit in the Writ Petition No. 20166 of 1997, the same is dismissed and the stay order is vacated.
45. In the face of the facts and circumstances, as discussed above, a question arises as to what can be done by this Court. In Malik v. Munsif Magistrate, 1996 (1) ARC 344, a learned single Judge of this Court quashed the proceedings of a suit instituted by the sons of the tenant against whom an order of eviction had become final having been contested up to the High Court. This Court had found that the suit was an abuse of the process of the Court and quashing the proceedings in the suit, awarded Rs. 2,000 as cost.
46. In Smt. Raj Kumari v. Civil Judge. 1986 (2) ARC 469, also, the tenant of a shop adopted a litigious attitude to thwart the order of eviction that had become final. The tenant filed several suits and obtained an injunction against the order of eviction. The landlady came to this Court in a writ petition under Article 226 of the Constitution of India seeking, inter alia, quashing of the proceedings of the suit. On behalf of the tenant, it was contended that against an order of injunction an appeal lies under Order XLIII, Rule 1, C.P.C. This Court held that in a case of abuse of the process of the Court by repetitive litigation, an appeal was not an efficacious alternative remedy.
47. Cases of tenants leaving no stone unturned to keep eviction at bay and resorting to repetitive litigation are not rare. Rather they are becoming quite common. One such case, again from Uttar Pradesh reached the Apex Court in Suresh Chand Jain v. Jai Kishan Goswami, 1993 (2) ARC 484. The Supreme Court observed that the course adopted by the tenant was sheer abuse of the process of Court. Quashing the orders passed by the District Judge as well as by the High Court, the Supreme Court awarded exemplary costs of Rs. 15,000 and directed police assistance to be provided for delivery of possession to the landlord.
48. Tenants are not the only persons to indulge in judicial trickery. At times, a landlord may also resort to the same. One such case came before the Hon'ble Supreme Court in a writ petition under Article 32 of the Constitution of India. The judgment of the Hon'ble Supreme Court is in Jhumman Singh v. C.B.I., AIR 1995 SC 2083. In that case, the tenants were occupying commercial property in Delhi. The third respondent manipulated decrees in favour of two persons from Gaya and Gauhati Courts and then claiming to have purchased those decrees got them transferred to Delhi Court for execution. The eviction was resisted and the clandestine process could not succeed. The tenants directly approached the Hon'ble Supreme Court under Article 32 of the Constitution of India claiming that they had never been to Gaya or Gauhati and the decrees were a fraud. They even sought a direction to the Central Bureau of Investigation to investigate the matter. The Hon'ble Supreme Court quashed the decrees finding that it was a case of blatant abuse of the process of the Courts and judicial system and the Supreme Court has power, indeed a duty, to rectify it. The Hon'ble Supreme Court also directed the landlord to pay exemplary costs in the sum of Rs. 1,00,000.
49. In Grindelyes Bank v. I.T.O., AIR 1980 SC 656, Hon'ble Supreme Court held that while exercising jurisdiction under Article 226 of the Constitution of India, the interest of justice requires that any underserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised. Institution of litigation by a party should not be permitted to confer an unfair advantage on the party responsible for it.
50. A judicial notice can be taken of the fact that dispute in between landlord and tenant in the State of U.P. is increasing day by day by leaps and bound. One of the main reason appears to be freezing of rent of the rent controlled building. This gives encouragement to tenants or persons who manage to enter in occupation of a building to prolong litigation as far as possible. This unnecessarily encourages dishonesty in the society. The disproportionate lower rent of a controlled building similar to one uncontrolled is one of the major factors for vexatious litigation under the Rent Control Act. Unfortunately here is no provision for deposit of rent under Section 21 of the Act. The time has come when the State Legislature should intervene and power to order recovery of arrears of rent and damages, mense profit for future occupation at the market rate should be conferred on the Court to save it from the unscrupulous litigants like the respondent No. 2. The respondent No. 2 is an advocate and it was expected from him to maintain the high standard of the legal profession by raising only such pleas which are legally permissible and available but he belied the belief.
51. The respondent No. 2 has entered into the scene some time in the month of July, 1988 when he filed objections to the execution applications. He came forward that with the plea that he is tenant of the disputed accommodation of a paltry sum of Rs. 25 per month. The disputed accommodation consists of five rooms, verandah, kitchen, bathroom, latrine, etc. in the industrial city of Kanpur. The petitioner has claimed a sum of Rs. 1 lakh as damages in the writ petition. The respondent No. 2 has gained by remaining in possession since mid of 1988. The advantage gained by him is to be neutralized to some extent by this Court in exercise of powers under Article 226 of the Constitution of India. Taking into consideration the facts and circumstances of the case I fixed the damages for use and occupation of the disputed accommodation by the respondent No. 2 at Rs. 300 per month beginning from August, 1978 till the delivery of possession. I also invoked the power of superintendence under Article 227 of the Constitution of India.
52. For the reasons aforesaid the leading Writ Petition No. 42239 of 1998 and writ No. 10286 of 1990 are allowed and Writ Petition No. 20166 of 1997 is dismissed. It is directed as under :
(1) The impugned orders dated 19.9.1998 and 31.10.1998 (Annexures-32 and 33) are quashed ;
(2) The Prescribed Authority, the respondent No. 1 is commanded to execute the release order dated 20.4.1978 passed under Section 21 (1) (a) of the Act and to put Mohd. Akbar Iliyas in actual possession of the accommodation consisting of two rooms on the ground floor and four rooms, i.e., bath room, kitchen, latrine with verandah, etc. as described in the application under Section 23 of the Act by evicting the respondent No. 2 or any other person whosoever is found in the disputed accommodation.
(3) The Writ Petition No. 10286 of 1990 is allowed. The impugned orders dated 26.11.1988 (Annexure-12) and 20.1.2001 (Annexure-14) granting injunction to the respondent No. 2 in Original Suit No. 1033 of 1988, Riazuddin v. Smt. Jamila Khatoon, is quashed ;
(4) The Writ Petition No. 20166 of 1997 is dismissed. The interim order granted by this Court is vacated. It is made clear that there is no hindrance or impediment to execute the release order under Section 23 of the Act ;
(5) The Senior Superintendent of Police and the Prescribed Authority under the Act are directed to execute the release order and put the petitioner namely Mohd. Akbar Iliyas in possession of the disputed accommodation within a period of ten days from the date of receipt of the certified copy of this order by them. The Senior Superintendent of Police, Kanpur shall provide the necessary force to the Prescribed Authority to put the petitioner in actual possession of the released accommodation and by evicting the persons found in accommodation on the spot;
(6) In executing the release order the Prescribed Authority or the Senior Superintendent of Police, Kanpur shall not entertain any objection by the respondent No. 2 or by any other person and shall not take cognizance of any order passed by any Court subordinate to this Court. All the Courts and authorities within the territorial jurisdiction of this Court are restrained from making, any order that may directly or indirectly obstruct the execution of the order of eviction of the respondent No. 2 ;
(7) The respondent No. 2 shall be liable to pay the damages for use and occupation of the disputed premises for the period commencing from August, 1988 to the date of actual vacation at the rate of Rs. 300 per month. The said amount shall be paid within the period of one month from today. The amount, shall also carry at the rate of 12 per cent per annum compound interest yearly from the date of eviction till payment ;
(8) Riazuddin shall pay costs of all the three writ petitions and of the various litigations initiated by him to the petitioner landlord that I assess at Rs. 25,000 only ;
(9) The compliance report shall be submitted by the Prescribed Authority and Senior Superintendent of Police, Kanpur by 22nd March, 2004 (Monday).