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Vijai Kumar Khanna vs Iind Additional District Judge, ...

High Court Of Judicature at Allahabad|30 November, 1999


JUDGMENT Sudhir Narain, J.
1. The petitioner seeks to quash the order dated 16.7.1999 passed by respondent No. 1 whereby he has granted injunction order restraining the petitioner from taking possession of the property in dispute which has been released in his favour. The chequered history of the case is briefly stated as under :
2. The petitioner purchased house No. 118/241 (c-6), Kaushalpuri, Kanpur Nagar. One Sardar Ram Singh was alleged to be tenant of the house. He got constructed his own house No. 8/70. Krishna Nagar. Kanpur City, wherein he shifted his possession. His son Ajeet Singh continued in possession and the rent receipt was issued in his name. The petitioner gave a notice on 20.1.1981 demanding arrears of rent, he failed to comply with the notice. The petitioner filed a Suit No. 262 of 1982 on 20.3.1982. The suit was decreed ex parte. Ajeet Singh filed an application to set aside the decree. His application was allowed and the said suit is still pending.
3. The petitioner also filed an application for release of the disputed house under Section 22 (1) (a) of the U. P. Act No. XIII of 1972 against Ajeet Singh, the tenant on the ground that it was bona fide needed by him. Ajeet Singh contested the application. It was denied that the need of the landlord-petitioner was bona fide. The Prescribed Authority allowed the application on 23.6.1986 on the finding that the disputed house was bona fide required by the petitioner. Ajeet Singh filed an appeal against the said judgment. The appeal was dismissed on 16.1.1987. He further filed Writ Petition No. 2572 of 1987. But no stay order was passed by the Court at the time of filing of the writ petition.
4. As there was no stay order in the said writ petition, mother of Ajeet Singh, namely, Trilochan Kaur, respondent No. 2, filed Suit No. 387 of 1987 against the petitioner for injunction alleging herself to be sole tenant of the disputed house. She filed an application for interim injunction. The trial court granted interim injunction. The petitioner filed an application for vacating the injunction order. The injunction order was vacated on 30.5.1987. In the meantime, Writ Petition No. 2572 of 1987 was admitted and the Court granted interim stay order slaying eviction of Ajeet Singh from the disputed house. Thereafter Trilochan Kaur got her Suit No. 387 of 1987 dismissed on 17.8.1987 and filed another Suit No. 1326 of 1987 wherein she alleged that she was co-tenant of the disputed house along with Ajeet Singh and obtained a temporary injunction in her Second Suit No. 1326 of 1987. The petitioner filed an application before the trial court to vacate injunction order. The trial court vacated injunction order on 12.4.1999. Trilochan Kaur filed Misc. Civil Appeal No. 247 of 1999 against the order dated 12.4.1999. Respondent No. I has allowed the appeal vide impugned order dated 16.7.1999 and has granted injunction restraining the petitioner from evicting her from the disputed premises till the decision of the suit.
5. In the meantime, writ petition filed by Ajeet Singh S/o Trilochan Kaur has been dismissed on 27.1.1999 by this Court.
6. Another limb of the relevant fact is that the petitioner was staying In another premises in house No. 118/400 owned by one Shri Ramesh Chand Bhatia. He filed an application before the Rent Control and Eviction Officer that the accommodation in occupation of the petitioner be treated as vacant and be released in his favour. His application was allowed by the Rent Eviction Officer. The petitioner preferred a revision against this order which was dismissed. He further filed a Writ Petition No. 44516 of 1998 and it has been dismissed on 28.1.1999. The petitioner was, however, granted six months' time to vacate the accommodation which was owned by Ramesh Chand Bhatia.
7. Now the result is that the petitioner is being sought to be evicted from the accommodation which is owned by Shri Ramesh Chand and on the other hand, he has not obtained the possession of the house which he got released under Section 21 (1) (a) of the U. P. Act No. XIII of 1972.
8. Trilochan Kaur has filed a Suit No. 387 of 1987 claiming herself to be sole tenant. She withdrew the suit and filed another Suit No. 1326 of 1987 alleging that she is co-tenant along with her son. Her version was that her husband Ram Singh remarried another lady in the year 1965 and thereafter she continued to occupy the house in question along with Ajeet Singh. It has not been disclosed as to how the tenancy did arise. Ram Singh, the alleged tenant is alleged to have constructed his own house in Krishna Nagar. The accommodation has been declared vacant. The landlord subsequently accepted Ajeet Singh as tenant. He was paying rent. An application was filed against him by the petitioner in the year 1983 under Section 21 (1) (a) of the Act. A written statement was filed by Ajeet Singh and in that written statement, he never alleged that his mother Trilochan is also one of the co-tenants. The prescribed authority allowed the application of the petitioner on 23.6.1986. Ajeet Singh filed an appeal against the said order. The appeal was dismissed on 16.1.1987. He further filed Writ Petition No. 2572 of 1987 and the writ petition was dismissed on 27.1.1999. Trilochan Kaur never filed an application in this proceeding that she is co-tenant and she should be impleaded as a party.
Even otherwise, if she was a joint tenant, her interest was represented by her son. It was never the case of Trilochan Kaur that her son was not residing in the disputed house. In case her son was residing along with her, their interest was common and there was no justification not to come forward in the petition filed by the petitioner under Section 21 (1) (a) of the Act against her son.
9. Respondent No. 1 has taken the view that there are certain rent receipts which are alleged to have been issued by the petitioner in the name of Trilochan Kaur. This fact is denied by the petitioner. It is, however, not necessary to go into the question of fact as I have found that the interest of Trilochan Kaur, the respondent and her son Ajeet Singh was common. Considering the entire facts, the proceeding in the suit filed by her is abuse of the process of the Court.
10. In H.C. Pandey v. C. C. Paid, AIR 1989 SC 1470, it was held that where the tenant dies, his heirs succeed as joint tenants and not as tenant-in-common. The incidence of the tenancy would be the same as those enjoyed by the original tenant. There will be no division of the premises or the rent payable thereof. In case of tenants were joint tenants residing together and one of the tenants never raised any objection to the proceeding under Section 21 (1) (a) of U. P. Act No. 13 of 1972, it will be deemed that the interests were jointly represented before the Prescribed Authority. The application was filed by the landlord under Section 21 (1) (a) of the Act on the ground of bona fide need. The tenant contested on the ground that it is not bona fide need. He also pleaded his own hardships. On the facts in the present case as indicated, it is clear that respondent Nos. 2 and 3 were in collusion. Respondent No. 3 is contesting the matter since the year. 1981 and more than 18 years have already passed.
11. In Smt. Raj Kumari Kapoor v. Civil Judge, Kanpur and others. 1986 12) ARC 469, were the suits were filed seeking injunction against the order passed by the Prescribed Authority, the Court examining the facts, held that the proceedings in the suit may amount to abuse of process of Court and it can be quashed under Article 226 of the Constitution of India.
12. Considering the facts and circumstances of the entire case, the writ petition is allowed, and I quash the order passed by the respondent No. 1 dated 16.7.1999. The prescribed authority is to execute the release order passed in favour of the petitioner immediately and the Senior Superintendent of Police. Kanpur Nagar is directed to take the possession of such premises from respondent Nos. 2 and 3 within one week from the date of production of certified copy of this order and handover its possession to the petitioner.
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Vijai Kumar Khanna vs Iind Additional District Judge, ...


High Court Of Judicature at Allahabad

30 November, 1999
  • S Narain