Allahabad High Court
Mahboob Hasan vs Badruddin on 30 September, 2013
Bench: B. Amit Sthalekar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 7
Case :- WRIT - A No. - 52012 of 2013
Petitioner :- Mahboob Hasan
Respondent :- Badruddin
Counsel for Petitioner :- R.S.Mishra
Counsel for Respondent :- Shashank Tripathi
Hon'ble B. Amit Sthalekar,J.
This writ petition has been filed by the petitioner challenging the order dated 26.8.2013 passed in misc. case no. 5/24 of 2010 Mehboob Hasan Vs. Badruddin.
The case of the petitioner is that he alongwith his brother Kabul Hasan was the joint tenant of the premises House No. 130/448 Khatikana Babupurwa Kanpur Nagar. Earlier a rent case no. 96 of 1993 Badruddin Vs. Kabool Hasan and others had been filed seeking the release of the tenanted premises. The release application filed by the respondent Badruddin was allowed by the Prescribed Authority by order dated 16.3.1996. Aggrieved the petitioner alongwith Kabool Hasan filed rent appeal No. 64 of 1996 and the appellate court by its judgment dated 18.1.2000 had remanded the case to the Prescribed Authority for fresh decision. On remand the matter was heard again and thereafter the Prescribed Authority dismissed the rent case no. 96 of 1993 by order dated 18.1.2001. Subsequently another rent case no. 5 of 2003 Badruddin Vs. Kabool Hasan was filed which was allowed on 23.7.2005. Kabool Hasan filed rent appeal No. 75 of 2005 Kabool Hasan Vs. Badruddin which was dismissed on 6.1.2009 and aggrieved by the said order Kabool Hasan filed a writ petitoin No. 65744 of 2009, which is stated to be still pending. Thereafter, Badruddin-the landlord has filed an execution case no. 17/23 of 2009.
According to the petitioner he came to know about the subsequent proceedings only on 19.1.2010 when he approached the landlord for paying him the rent and the landlord provided him the copy of the judgment of the court dated 6.1.2009 passed in rent appeal no. 75 of 2005. This writ petition has been filed by the petitioner with the allegation that in the subsequent proceeding he had not been impleaded as a party although he was a co-tenant with Kabool Hasan and the said proceedings had been initiated by the landlord Badruddin only against Kabool Hasan which was a collusive proceedings. It is further alleged that in the rent appeal no. 75 of 2005 also the petitioner-Mehboob Hasan was deliberately not impleaded as a party and those proceedings were also collusive proceedings. In the writ petition filed by Kabool Hasan challenging the order of the appellate authority in rent appeal no. 75 of 2005 also the petitioner was not impleaded as party. All these proceedings are alleged to have been collusive. It is only at the stage when the execution case no 17/23 of 2009 was filed that the petitioner came to know about the order passed in the rent case no. 5 of 2003 and the order passed in rent appeal no. 75 of 2005. It is at this stage that the petitioner moved the application no. 3 under section 34(i)(g) of U.P. Act No. 13 of 1972 read with Order XXI Rule 97 C.P.C. for setting aside the ex-parte execution proceeding. The petitioner alongwith his application also filed an affidavit stating that he was a joint co-tenant alongwith Kabool Hasan and that in the earlier proceedings i.e. rent case no. 96 of 1993 he was also a party but in the subsequent proceedings he has deliberately not been made a party. The executing court considered the documents on record and by the impugned order dated 26.8.2013 has rejected the application no. 3 filed by the petitioner.
I have gone through the records of the case and perused the impugned order dated 26.8.2013. From a perusal of the impugned order it may be noticed that the executing court while rejecting the application No. 3 of the petitioner has recorded a finding that though the allegation of the petitioner is that the subsequent proceedings were collusive but it is not understandable as to why when the rent case no. 5 of 2003 was subsequently allowed by the order dated 23.7.2005 after remand and the release application was allowed the said Kabool Hasan has filed rent appeal no. 75 of 2005 and after dismissal of the same, has filed writ petition no. 65744 of 2009, which is still pending. The executing court has also held that alongwith the objections filed by Kabool Hasan in the rent case no. 5 of 2003 he had filed his family chart and in that family chart the name of the petitioner-Mehboob Hasan did not find mention and therefore, it could not be said that merely because in the earlier proceedings in rent case no. 96 of 1993 the petitioner was shown as co-tenant but subsequently in 2003 he was not residing in the tenanted premises and, therefore, it was not necessary to implead him as a party in the subsequent rent case no. 5 of 2003.
Be that as it may, it is not understandable that if the rent case no. 5 of 2003 is said to be collusive proceedings and the release application of the respondent-landlord-Badruddin was allowed why Kabool Hasan would file rent appeal no. 75 of 2005 and on dismissal of the same why he would further contest the case in the High Court by filing a writ petiton no. 65744 of 2009. In view of these facts it cannot be said that the rent case no. 5 of 2003 and the subsequent proceedings arising out of the order passed in the said rent case were collusive proceedings between the respondent-landlord-Badruddin and the tenant Kabool Hasan.
It is also not explained by the petitioner that when the Rent Case No. 96 of 1993 was dismissed on remand by the Prescribed Authority on 18.1.2001 why did he approach the landlord-respondent to pay rent only on 19.1.2010.
For the aforesaid reasons I do not find any merit in the writ petition and the same is accordingly dismissed.
Order Date :- 30.9.2013
o.k.
