Heard Sri Sanjay Singh, learned counsel for the petitioner Sri Dharmendra Singh, learned counsel appearing for the caveator - landlord - respondent.
Present writ petition has been filed seeking setting aside of the order dated 5.10.2020 passed in Misc. P.A. Case No. 1/2020 rejecting Restoration Application No. 4Ba of the petitioner as well as ex-parte eviction order dated 13.12.2019 passed in P.A. Case No. 27/2018 under Section 21 (1) (a) of U.P. Act No. 13 of 1972. A further prayer to direct the concerned Court/Prescribed Authority to decide P.A. Case No. 27/2018, Smt. Sarla Gupta and others Vs. Raj Gopal Sharma on merits after affording appropriate opportunity of hearing to the applicant/petitioner.
By the impugned order the court below has rejected the restoration application Paper no. 4Ba filed by the petitioner for recalling the order dated 13.12.2019 with the direction that the P.A. case be restored to its original number.
It is not in dispute that the restoration application was filed within thirty days and was thus within limitation. However, findings have been recorded the petitioner deliberately avoid service of notice and reason has not been mentioned for non-appearance.
Per-contra, learned counsel appearing for the caveator - respondent - landlord has supported the impugned order that the registry was received back with the endorsement of refusal and therefore, no interference is warranted.
Replying the same, learned counsel for the petitioner submits that this endorsement was made with the collusion of the landlord and he had no knowledge about the notice.
Since the restoration application was filed within time and not much time has passed, in the interest of justice, exercising powers under Article 227 of the Constitution of India the order dated 5.10.2020 passed in P.A. Case No. 1 of 2020 rejecting the restoration application is set aside subject to payment of costs of Rs. 10,000/- to the landlord to be paid within one month from today. In case landlord refuses to accept the same, he may deposit the same in the Court and the landlord shall be at liberty to withdraw the same without prejudice to his right. Consequently, the ex-parte order setting aside the release application dated 13.12.2019 also stands recalled. The proceedings of P.A. Case No. 27 of 2018 filed under Section 21 (1) (a) of U.P. Act No. 13 of 1972 is restored before the competent court. It is further provided that the release application itself shall be decided as expeditiously as possible in the light of Rule 15 (3) of the Rules of 1972 not later than six months. In case any adjournment is sought by the tenant, the same shall be granted on payment of heavy costs not less than Rs. 2,000/- per adjournment.
A reference may be made in this regard to the judgment of the Hon'ble Apex Court rendered in the case of Hameed Kunju Vs. Nazim (2017) 8 SCC 611.
With the aforesaid observations/directions, this writ petition stands allowed.
Order Date :- 29.1.2021 p.s.