This special appeal arises from an order of the learned Single Judge dated 1 December 2015. The learned Single Judge has (i) set aside an order of release of the premises dated 14 July 2014 passed by the Prescribed Authority; (ii) directed the dropping of execution proceedings and in consequence, the appeal filed by the respondent; and (iii) rejected the prayer of the appellants for return of the plaint for fresh presentation.
Suit No.19 of 2013 was instituted by the appellants against the respondent for an order of eviction from a shop bearing no.32/23-C situated at Bhusauli Tola, Allahabad. The appellants also sought a decree for rent between the period 1 May 2013 to 31 August 2013. The suit was instituted in the Court of the Additional Chief Judicial Magistrate-XII, acting as the Prescribed Authority. Paragraph 3 of the plaint contains an averment that on 3 April 2013, the term of eleven months in respect of the premises had expired and though the plaintiffs had requested the defendant to vacate the shop on the ground that it was required for the need of his son, the defendant was avoiding to do so. Moreover, it was alleged that the defendant was not paying the rent from 1 May 2013. The plaintiffs have also sent a notice to the defendant dated 14 August 2013, demanding the arrears of rent and terminating his tenancy after the expiry of thirty days from the receipt of the notice. The defendant has, it was alleged, refused to accept the notice.
The record indicates that on 9 December 2013, the proceedings were transferred to the Court of the Additional Chief Judicial Magistrate, Court No.2, from the Court of the Additional Chief Judicial Magistrate, Court No.12, Allahabad. The suit was decreed ex parte on 14 July 2014. On 18 September 2015, the respondent filed an appeal before the District Judge at Allahabad. On 28 September 2015, an application was filed for stay of execution of the decree. The application was rejected on 13 October 2015. The respondent-defendant thereupon, instituted a writ petition, being Writ-C No.61130 of 2015, seeking to challenge the order dated 13 October 2015, declining to stay the execution of the decree. The relief which was sought in the writ petition was in the following terms:
"i) issue a writ, order or direction in the nature of certiorari quash the order dated 13-10-2015 passed by Prescribed Authority/A.C.J.M. Court No.8 District Allahabad in P.A. no.19 of 2013 (Ramesh Chandra and others Vs. Om Prakash Rajpoot Vishwakarma)."
One aspect of the record which needs to be mentioned, at this stage, is that neither in the appeal which is pending before the District Judge, nor in the writ petition was a ground specifically advanced to the effect that the decree was a nullity for want of jurisdiction.
The learned Single Judge, by the judgment and order impugned dated 1 December 2015, came to conclusion that from the averments contained in the plaint, it was clear that the suit for eviction filed under Section 20 of U P Act 13 of 1972 was not cognizable by the Prescribed Authority and, admittedly, the officer concerned was designated as the Prescribed Authority under the Rent Control Act. The learned Single Judge held that he had no jurisdiction to entertain or proceed with the suit for eviction filed on the ground of default in payment of rent and termination of tenancy. The learned Single Judge held that either the officer was not acquainted with the legal position or has received extraneous consideration in entertaining the matter and passing an order of eviction. Consequently (i) the order of release dated 14 July 2014 was set aside; (ii) the execution proceedings were directed to be dropped; and (iii) the prayer for return of plaint for fresh presentation was refused.
Against the order of learned Single Judge, the present Special Appeal has been filed.
A preliminary objection which has been raised at the hearing of the special appeal is that, having due regard to the provisions of Chapter VIII, Rule 5 of the Allahabad High Court Rules 1952, a special appeal would not be maintainable against the order of the learned Single Judge. Dealing with this submission, it has been urged on behalf of the appellants that the contention of the appellants is that the learned Single Judge has transgressed the jurisdiction which was invoked in the form of a writ petition under Article 226 of the Constitution for challenging an order of the Prescribed Authority declining to stay the execution. In a writ petition, challenging the order of the Prescribed Authority declining to grant stay of execution, it was urged that the learned Single Judge has not only set aside the original decree, but has also set aside the execution proceedings and even rejected the subsequent prayer for return of the plaint. In these circumstances, it has been urged that as a result of the impugned order of the learned Single Judge, which arose from a writ petition challenging an order declining to stay the execution, the original proceedings have been set aside, the appeal stands concluded and the appellants are foreclosed even from pursuing their rights and remedies in accordance with law.
We find merit in the submission of the appellants that the special appeal would not be barred by the provisions of Chapter VIII Rule 5 of the Rules of the Court. In the present case, the order of the learned Single Judge is assailed in the special appeal on the ground that in issuing the aforesaid directions, the learned Single Judge has transgressed the limitations on the jurisdiction of the Court under Article 226 of the Constitution. As we have indicated, the limited prayer before the learned Single Judge was a challenge to the order dated 13 October 2015, declining stay of execution of the decree passed by the Prescribed Authority in Suit No. 19 of 2013. The learned Single Judge, in the limited issue which had arisen before her, was called upon to decide whether a case was made out for stay of execution of the decree or otherwise pending disposal of the appeal before the District Judge. The learned Single Judge has not confined the decision of the Court merely to this aspect. The learned Single Judge holds that the decree itself has to be set aside and has, accordingly, set aside the release order dated 14 July 2014. The execution proceedings have been set aside. Moreover, the prayer made by the appellants for return of the plaint has also been rejected. As a result of the last of the directions, the appellants have been foreclosed for seeking remedies which are available in law. In this view of the matter, the learned Single Judge has acted in excess of jurisdiction. Hence, it cannot be held that the special appeal is not maintainable under Chapter VIII Rule 5 of the Rules of the Court.
The narration of above facts would indicate that the writ petition which was filed by the respondent was against an order declining stay of execution. The limited prayer was to set aside an order rejecting the application for stay which was passed on 13 October 2015. While entertaining the writ petition, the learned Single Judge could have ordered the stay of execution pending disposal of the appeal. In the writ petition, there was no challenge to jurisdiction of the Prescribed Authority.
In this background, the directions which have been issued by the learned Single Judge, are manifestly in excess of jurisdiction and cannot be sustained.
We are of the view that the ends of justice would require that the execution of the ex parte decree should be stayed during the pendency of the appeal before the District Judge. It would have been appropriate and proper for the learned Single Judge to allow the writ petition by setting aside the order dated 13 October 2015, refusing to stay the execution of the order dated 14 July 2014.
For these reasons, we allow the special appeal in the following terms:
(i) The impugned order of the learned Single Judge dated 1 December 2015 is set aside;
(ii) The order of the Prescribed Authority dated 13 October 2015, declining to stay the execution of the decree in pursuance of the release order dated 14 July 2014 is set aside; and
(iii) Pending disposal of the appeal before the District Judge, the execution of the release order dated 14 July 2014 shall remain stayed.
In the circumstances, the writ petition filed by the respondent before the learned Single Judge shall, accordingly, stand allowed in the aforesaid terms. However, we grant liberty to the respondent to move an appropriate application for amendment before the District Judge, to specifically raise an issue of jurisdiction of the Prescribed Authority, which we keep open to be considered in accordance with law. Any objection of the appellants to the application for amendment will be considered in accordance with law.
Before concluding, we also record that the observations which were made against the Prescribed Authority to the effect that the order was passed either without knowledge of the legal provisions or for extraneous consideration were not warranted. It is well settled that such observations against the judges of the district judiciary should not be made lightly. The observation about extraneous consideration is without notice to the judge. Since we have set aside the impugned order of the learned Single Judge, those observations would no longer survive.
The impugned order of the learned Single Judge shall stand substituted by the aforesaid directions.
The original records are returned to the District Judge, Allahabad.
The special appeal is, accordingly, disposed of. There shall be no order as to costs.
Dt. 04.04.2016 RKK/-