Court No. - 26
Case :- MATTERS UNDER ARTICLE 227 No. - 4080
of 2018
Petitioner :- Om Prakash Chaurasiya Respondent :- Vishwa Nath Dubey (Died) And 4 Others
Counsel for Petitioner :- Ajay Sengar
Hon'ble Mrs. Sangeeta Chandra,J.
(ORAL) This petition has been filed by the petitioner- tenant praying for quashing of the order dated 25.05.2018 passed by the learned Civil Judge (Junior Division)/Fast Track Court, Jalaun at Orai in P.A. Case No. 4 of 2001 (Vishwanath and others vs Om Prakash and others) rejecting the application made by the petitioner Paper No. 229 Ga on grounds which according to the petitioner are not admissible in law.
I have gone through the order passed by the Presiding Officer, the Prescribed Authority, it appears that an application was filed to evict the petitioner from a shop situated at Mohalla Chandra Nagar, Qasba Orai, district Jalaun registered as P.A. Case No. 4 of 2001 (Vishwanath and others vs Om Prakash and others) under section 21(1)(a) of the U.P. Act No. 13 of 1972. The landlord wanted the shop to be released as he needed the same to establish his Chamber as he is a practising Advocate. The petitioner-tenant did not appear before the learned Civil Judge (Junior Division), Jalaun for a long time and ultimately the order dated 02.02.2002 was passed to proceed in the matter ex parte. The case was proceeded ex parte for nearly 12 years and the tenant-petitioner filed an application for recall of the order dated 02.02.2002 only on 05.03.2018 alleging that he did not have any knowledge of aforesaid case as he was never served notice. This application for recall was allowed by the Prescribed Authority. It has been alleged that since the order to proceed ex parte has already been recalled, which related to 2002, all proceedings held in between for 16 years became a nullity, and therefore, the petitioner-tenant is entitled to present his evidence and also crosss examine the witnesses, who have already deposed before the Prescribed Authority. The Prescribed Authority on the other hand has found that under Sub Rule (3) of Rule 15 of the Rules of 1972, it is expected that an application for release shall be decided as far as possible within two months of its presentation. Sixteen years had elapsed and in the meanwhile, evidence of the applicant-landlord and also evidence of the opposite parties had been taken and the matter was fixed at argument stage. He has found the application moved for cross examination of the witnesses to be malafide with the intent of further delaying the proceedings and has rejected the same. He has also referred to a judgment cited by the learned counsel for the petitioner-tenant before him i.e. Ashfaq Ahmad vs Prescribed Authority (Civil Judge) Rampur and another, 1987 Allahabad Law Journal 1452 and has come to the conclusion that the case of the petitioner is different looking into the fact that the Release Application has been pending for the past 16 years.
Learned counsel for the petitioner has relied upon a judgment rendered by Co-ordinate Bench of this Court in Rang Lal and another vs Prescribed Authority, Deoria and another, reported in 1982 Allahabad Law Journal 1131 and also also argued that it is mandatory for the Prescribed Authority to consider the legal position and according to him it is a legal issue to be decided as to whether the petitioner is entitled for cross- examination of the witnesses of the landlord.
The legal issue may be as has been argued by the learned counsel for the petitioner that the Prescribed Authority can if a situation so warrants, permit the litigants to cross-examine the witnesses of the either side as has been held by this Court in Rang Lal and Ashfaq Ahmad (supra), however, the facts of the case are such that I do not find there is any factual or legal infirmity in the order impugned.
With regard to allegation of the petitioner-tenant that there are four other shops lying vacant in the same premises, which the landlord could very well utilize for establishing his Chamber, the petitioner is liberty under section 34 to produce the evidence on affidavit.
The writ petition is dismissed.
Order Date :- 30.5.2018 Sazia