Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 590 of 2019 Petitioner :- M/S Rupam Chappal Company Kanpur Nagar Respondent :- Ashok Kumar Sahu Counsel for Petitioner :- Suresh Chandra Tripathi Counsel for Respondent :- Manish Tandon
Hon'ble Manoj Kumar Gupta,J.
This is second round of litigation before this Court. On a previous occasion, the matter travelled to this Court at the behest of the petitioner in Writ-A No.21074 of 2018 challenging the order of the Prescribed Authority dated 10.11.2017 allowing the release application filed by the respondent- landlord under Section 21(1)(a) of U.P. Act No.13 of 1972 and the judgement and order dated 27.7.2018 by the appellate court dismissing the appeal. The respondent-landlord had set up need of his son Manish for the premises in dispute. The court below found his need to be genuine and bonafide and accordingly released the disputed premises in favour of the respondent-landlord. The main ground for challenging the judgement of the appellate court in the previous petition filed before this Court was that additional evidence admitted by the appellate court on 26.4.2018 was not taken into consideration while deciding the appeal. This court found the contention to be correct and accordingly set aside the appellate judgement dated 27.7.2018 and remitted the matter back to the appellate court to decide the appeal afresh after taking into consideration the additional evidence. In pursuance thereof, the appellate court, after taking into consideration the additional evidence, by the impugned judgement and order dated 27.12.2018, has dismissed the appeal.
Sri S.C. Tripathi, counsel for the petitioner submitted that in appeal, the petitioner filed an application for inspection of the disputed premises as there was a serious dispute between parties regarding extent of accommodation in possession of the petitioner. According to him, though it was alleged in the release application that the petitioner was tenant of two big hall size rooms, two small rooms, dochhatti and common latrine, bathroom etc. but it was the specific case of the petitioner that he was tenant of only two rooms, dochhatti and common latrine, bathroom and not two hall size rooms. In appeal, specific amendment was sought in memo of appeal, whereby a plea was taken that two hall size rooms, as alleged in the release application, are not in possession of the petitioner. It was further alleged that infact these are shops, which are in possession of the landlord himself, but he is keeping them locked. The said fact could be ascertained by issuing a commission and a separate application was also filed for the said purpose. The submission is that the appellate court has not dealt with the said aspect at all. It is further submitted that the appellate court has wrongly rejected the request for commission.
Sri Manish Tandon, learned counsel for the respondent-landlord concedes that the appellate court has not returned any finding with regard to the said aspect, although, the plea taken by the petitioner-tenant that the disputed accommodation was being used as karkhana and that provisions of the Act are not applicable, was repelled. He very fairly states that the matter be remitted to the appellate court for consideration of the said limited aspect, to which Sri S.C. Tripathi, learned counsel for the petitioner has no objection.
Accordingly, the impugned order of the appellate court dated 17.12.2018 is set aside and matter is remitted back to the appellate court for considering the limited issue regarding extent of accommodation in the tenancy of the petitioner. For such purpose, it is agreed to between learned counsel for the parties that the appellate court will issue a commission and will thereafter decide the appeal.
Accordingly, it is further directed that the appellate court shall issue a commission for inspecting the premises in dispute and after obtaining report from the Commissioner and inviting objections against the same, it shall decide the said issue in accordance with law expeditiously, preferably within a period of three months from the date of production of a certified copy of this order.
The petition stands allowed to the extent stated above.
(Manoj Kumar Gupta, J.) Order Date :- 30.1.2019 skv