Mohd. Yaseen vs Hari Shanker
2021 Latest Caselaw 3283 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 4
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 1724 of 2021
 

 
Petitioner :- Mohd. Yaseen
 
Respondent :- Hari Shanker
 
Counsel for Petitioner :- Dharmendra Prasad Singh,Shiv Om Vikram Singh Chauhan,Vishnu Gupta Sr. Advocate
 
Counsel for Respondent :- R.P. Tiwari
 

 
Hon'ble Vivek Kumar Birla,J.

Heard Sri Dharmendra Prasad Singh, learned counsel for the tenant-petitioner and Sri R.P. Tiwari, learned counsel appearing for the caveator- landlord- respondent.

Present petition has been filed with following prayers:-

"i) Set aside the judgment and order dated 11.2.2021 passed by District Judge, Mahoba in Civil Revision No. 11 of 2020 Mohd. Yaseen Versus Hari Shanker (Annexure No.1) and thereby dismissed the revision and order dated 10.12.2020 passed by Civil Judge (S.D.), Mahoba in Execution Case No. 7 of 2020 Mohd Yaseen Versus Hari Shanker (Annexure No.2) "

By the impugned order dated 10.12.2020 passed by the execution court objections filed by the tenant- petitioner herein under Section 47 of C.P.C. were rejected. The application was filed on the ground that the trial court did not have the jurisdiction to decide the case; the renewal of contract was not seen; and the application filed for the appointment of commissioner was also illegally rejected. The main submission of learned counsel for the tenant- applicant before the execution court was that 'Judge, Small Causes Court' has decided the release application whereas he has no jurisdiction to decide the same. This ground was raised, which was rejected by the trial court that merely because 'prescribed authority' words were not used, the judgment cannot be said to be without jurisdiction. Against the rejection of the objections filed under Section 47 C.P.C., a revision was filed by the tenant- petitioner which was also rejected by the revisional court.

It is not in dispute that the judgment of the court/ prescribed authority was challenged before this Court by filing Matter Under Article 227 No. 8186 of 2019 (Mohammad Yaseen vs. Harishankar), which was dismissed by this Court vide order dated 3.12.2019. The said order is quoted as under:-

"This writ petition under Article 227 of the Constitution of India has been filed challenging the order dated 15.7.2019 passed by the Additional District Judge (Court No. 1), Mahoba in Civil Appeal No. 1/2017 (Mohammad Yaseen Vs. Harishankar) and the judgment and decree dated 4.5.2017 passed by Judge, Small Causes Court, Mahoba in SCC Suit No. 2/2-15 (Harishankar Vs. Mohammad Yaseen) whereby the suit filed by the landlord has been decreed and the appeal filed by the petitioner-tenant has been dismissed.

The facts of the case in short are that petitioner is a tenant of the shop on the ground floor of building No. 48 (New No. 74) situated at Main Bajar, Grantganj, Mahoba at the rate of Rs. 100/- per month from the time of grandfather of the plaintiff.

Plaintiff had given a notice dated 6.10.2015 of arrears of rent and eviction and, therefore, had filed a suit in the Court of Judge, Small Causes Court, Mahoba under the provisions of Section 21(1) (a) of UP Act No. 13 of 1972 on the ground of bonafide requirement of any member of his family.

It is alleged in the application that son of the plaintiff Himanshu is a graduate and unemployed, therefore, suit property was required.

In the written statement, defendant had denied the plaint allegations and had submitted that landlord has one more shop in his possession situated at mohalla Jariganj, Mahoba in addition to the shop in question at Grantganj, Mahoba. However, unemployment of the son of the plaintiff was also dined.

It was alleged that the Court below has illegally decreed the suit and appeal filed under the provisions of Section 22 has been wrongly dismissed without appreciating the facts of the case in the correct perspective.

Learned counsel for the petitioner submits that the Trial Court had no authority to decide the suit as per the provisions contained in Section 3(e) of the Act of 1972. On the basis of such submissions, counsel for the petitioner prays for rejection of the impugned judgments.

When specifically asked as to whether petitioner had placed any notification before the Judicial Officer concerned to point out that such Judicial Officer / Prescribed Authority was not having jurisdiction to hear a particular case from this writ petition originates, counsel for the petitioner fairly concedes that no such notification was brought on record before any of the authorities to show that they were not authorized to hear and decide the such case.

Even in the present writ petition no such notification is enclosed to substantiate the plea of the petitioner that the Prescribed Authority was not having jurisdiction to hear and decide the case. In fact, no such issue was framed before the Prescribed Authority as to the applicability of the provisions of the Act and, Prescribed Authority being not authorize to decide the suit and, therefore, at this stage when there being any cogent material such plea cannot be entertained.

There is no infirmity or illegality in the aforesaid impugned orders as an alternate accommodation was admittedly not in the same locality and then it is plaintiff who is best judge of the requirement of the family members. It is also settled principle of law that it is plaintiff whose convenience and requirement is to be seen and that of the defendant tenant. Therefore, writ petition being devoid of merits deserves to be dismissed, and it is dismissed."

Although, in paragraph 8 it was stated that Special Leave Petition challenging the said judgment including the judgment of the trial court is pending, however, learned counsel for the petitioner fairly submitted that the Special Leave Petition has been dismissed few days back on 4.3.2021. A copy of the same was produced by learned counsel appearing for the cavetaor- landlord- respondent before this Court.

The objections raised by the tenant- petitioner before this Court was considered by the lower appellate court and the appeal was dismissed and thereafter, the petition, challenging the same was also dismissed by this Court. Further, even the Special Leave Petition was also dismissed by the Hon'ble Supreme Court.

In such view of the matter, I do not find any good ground to interfere in the order impugned herein by which identical ground again taken before the execution court was rejected.

At this stage, learned counsel for the petitioner submites that some time may be granted to the tenant- petitioner to vacate the premises in question.

Having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that:

(1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 12.6.2021;

(2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of self- attested copy of this order;

(3) The tenant-petitioner shall pay entire decretal amount within a period of two months from the date of receipt of self- attested of this order.

(4) The tenant-petitioner shall pay damages @ Rs. 500/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 12.6.2021 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount;

(5) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute;

(6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period;

(7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.

(8) In case the premises is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt.

With the aforesaid observations/ directions, present petition stands dismissed.

Order Date :- 12.3.2021

Aditya