Allahabad High Court
Laxmi Narain Sahu And Others vs A.D.J. Iv And Others on 4 September, 2013
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Judgment reserved on 14.8.2013
Delivered on 4.9.2013
Court No. - 21
Case :- RENT CONTROL No. - 74 of 1993
Petitioner :- Laxmi Narain Sahu And Others
Respondent :- A.D.J. Iv And Others
Counsel for Petitioner :- D.C. Mukherjee
Counsel for Respondent :- K.P. Srivastava,K.P. Singh
Hon'ble Sibghat Ullah Khan,J.
At the time of hearing, no one appeared on behalf of contesting respondents (legal representatives of respondent no.2). Even though the case was taken up in the revised cause list. Accordingly the arguments of learned counsel for the petitioners were heard.
Petitioner no. 2 M/s Firm Chandu Lal Nagar Mal through petitioner no.2(1) to 2(4) is the tenant. Other petitioners are rival claimants to the ownership of the accommodation in dispute. Release application under Section 21 of U.P. Act No. 13 of 1972 was filed by original respondent no. 2 Prem Chand Sahu son of Nand Kishor Sahu since deceased and survived by legal representatives. In the release application, copy of which is Annexure 9 to the writ petition tenant petitioner no. 2 was impleaded as opposite party no.1 and Laxmi Narain Sahu petitioner no.1 was impleaded as opposite party no. 2.
Landlord applicant Prem Chand Sahu was nephew of opposite party no. 2/petitioner no. 1 Laxmi Narain Sahu. Initially the accommodation in dispute belonged to the three brothers i.e. petitioner no.1 Laxmi Narain Sahu, Nand Kishor Sahu father of applicant respondent no. 2 Prem Chand Sahu and Jamuna Prasad Sahu (petitioners no. 5 to 7 are his legal representatives). Through an arbitration award of 1964 partition of the accommodation in dispute took place between the three brothers which was made rule of the Court on 1.6.1967. In the award it was provided that if certain amount which was payable by Nand Kishor to Laxmi Narain Sahu was not paid within the time fix therein, share of Nand Kishor would go to Laxmi Narain Sahu. Default was committed by Nand Kishor hence decree dated 1.6.1967 was put in execution (Execution Case No. 20 of 1970) and in the execution possession was delivered to petitioner no.1, through order dated 29.8.1970. Nand Kishor Sahu challenged the arbitration award through Civil Suit No. 247 of 1964 which was dismissed on 17.12.1970 by Munsif, Sitapur against which Civil Appeal No.11 of 1971 was filed which was dismissed on 24.5.1976.
The applicant respondent no. 2 in the release application giving rise to the instant writ petition took up the case that unregistered agreement had been executed by petitioner no.1 on 31.10.1975 recognizing the right of his father Nand Kishor in the house in dispute. The prescribed authority Munsif, Sitapur where release application had been registered as Case No. 8(R/C) of 1983 Prem Chand Sahu vs. Firm Chandu Lal Nagar Mal and others dismissed the release application on 3.1.1989 holding that no agreement was executed as opposite party no.2/petitioner no.1 denied the signatures on the agreement of 1975 and secondly such an agreement could be arrived at only through registered document. The prescribed authority after recording the said finding did not say a single word about bonafide need or comparative hardship. Against the said order, respondent no. 2 filed R/C Appeal No. 2 of 1989. IV ADJ, Sitapur through judgment and order dated 28.11.1992 allowed the appeal, set aside the order of prescribed authority and remanded the matter to the prescribed authority to decide all the questions together i.e. right of the applicant his bonafide need and comparative hardship after holding that validity and genuineness of the agreement of 1975 should have been decided by the prescribed authority on merit. The said order of the appellate court has been challenged through this writ petition.
I do not agree with the remand order passed by the lower appellate court. It is utterly illegal. The prescribed authority after giving reasons held that the alleged agreement had not been executed by petitioner no.1 and it was not valid for want of registration. Lower appellate court did not say anything in this regard.
However in my opinion, complicated question of title was involved. In view of earlier litigation in between father of respondent no. 2 and petitioner no. 1 and the alleged agreement of 1975. Respondent no. 2 was himself aware of the complicated nature of the title dispute in between him and petitioner no. 1 hence he himself impleaded petitioner no.1 as opposite party no. 2 in the release application. Earlier suit for eviction had been filed by petitioner no. 1 against the petitioner no. 2 (para 8 of the writ petition) which was compromised.
Accordingly in view of Budhu Mal vs. Mahavir Prasad AIR 1988 Supreme Court 1772 plaint should have been returned for filing before regular Civil Court in accordance with Section 23 Provincial Small Causes Courts Act. However, now at this distant juncture no useful purpose would be served by adopting the said course. Supreme Court in Shamim Akhtar vs. Iqbal Ahmad AIR 2001 SC 1 has held that findings regarding title recorded by JSCC in the suit in between landlord and tenant is subject to the result of regular suit based on title. Same principle will apply when such finding is recorded by P.A. in a case under Section 21 of U.P. Act No. 13 of 1972.
Accordingly writ petition is allowed. Impugned order passed by lower appellate court is set aside. However liberty is granted to the legal representatives of respondent no.2 to file title suit before regular civil court on the basis of the alleged agreement dated 31.10.1975 impleading therein the tenant petitioner no. 2 also and seeking relief of eviction against him. If such a suit is filed, it shall be decided without taking into consideration any finding recorded by the prescribed authority in its judgment dated 3.1.1989 or order dated 28.11.1992 passed by the appellate court in appeal filed against the order dated 3.1.1989 or in the revision which was filed against an interim order passed by the P.A. in the said case.
Order Date :- 4.9.2013
Ravi
