Ajay Kumar Kesharwani And Another vs Hasnain Ata Peer Bux And 2 Others
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Allahabad High Court

Ajay Kumar Kesharwani And Another vs Hasnain Ata Peer Bux And 2 Others on 21 December, 2023

Author: Prakash Padia

Bench: Prakash Padia

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:241645
 
Judgement Reserved on 08.12.2023
 
Judgement Delivered on 21.12.2023
 
Court No. - 4
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 12315 of 2023
 

 
Petitioner :- Ajay Kumar Kesharwani And Another
 
Respondent :- Hasnain Ata Peer Bux And 2 Others
 
Counsel for Petitioner :- Yanendra Pandey
 
Counsel for Respondent :- Anand Tiwari
 

 
Hon'ble Prakash Padia,J.
 

1. The present petition under Article 227 of the Constitution of India has been filed by the petitioner, challenging the order dated 4.9.2023 passed by the Additional District Judge, Court No. 1, Allahabad in Rent Control Appeal No. 22 of 2009.

2. In the present petition, two persons, namely, Ajay Kumar Kesharwani, son of Amrit Lal & Meena, daughter of Amrit Lal have been impleaded as petitioners-plaintiffs. Hasnain Ata Peer Bux (deceased) and Faiz Ahmad has been impleaded as defendants-respondents. One Ashok Kumar, son of Late Amrit Lal has been impleaded as proforma respondent- defendant.

3. The facts as stated in the petition are that the petitioner no. 1/Ajay Kumar Kesharwani is grandson of Late Makhdoom Ram and son of pre-deceased Late Amrit Lal. One Smt. Kalawati Devi, who was appellant no. 3 in rent control appeal, was the mother of petitioner nos. 1 & 2. She died during pendency of the rent control appeal. It is further stated that Late Makhdoom Ram took 2 rooms of house No. 1166 (old) 1398 (new), Old Katra, Allahabad on rent for business purpose from the father of the respondent no. 2, namely, Late Hasnain Ata Peer Bux for running the shop. It is further stated that Late Makhdoom Ram died leaving behind the petitioner no. 1 and his daughter-in-law Smt. Kalawati Devi, who along with the petitioner no. 1 inherited the assets and liabilities of Late Makhdoom Ram (as father of the petitioner no. 1 had already died), as such, the tenancy devolved upon them.

4. The father of respondent no. 2 has moved an application under section 21(1)(a) of U.P. Act No. 13 of 1972 to release the aforesaid two rooms which was registered as P.A. Case No. 1 of 1997 (Hasnain Ata Peer Bux Vs. Ashok Kumar & others).

5. The Prescribed Authority allowed the release application by judgment and order dated 3.2.2009. Copy of the said judgment and order has been annexed as annexure- 1 to the petition.

6. Being aggrieved with the aforesaid judgment and order dated 3.2.2009, an appeal under section 22 of U.P. Act No. 13 of 1972 was filed being Rent Control Appeal No. 22 of 2009 (Ajay Kumar & others Vs. Hasnain Ata Peer Bux), which is still pending.

7. It is stated in paragraph 14 of the petition that Smt. Kalawati Devi died on 16.4.2016 and a substitution application under Order XXII Rule 3 read with Order VI Rule 17 C.P.C. was filed along with the delay condonation application in August 2023. In paragraph 15 of the petition it is stated that the heir and legal representatives of Smt. Kalawati Devi are two daughters, namely Beena Kesharwani & Meena, the petitioner no. 2. The said application has been rejected by Appellate Court by order dated 4.9.2023. The said order dated 4.9.2023 has been challenged in the present petition.

8. The caveator representing the respondent no. 2 on the very beginning, has stated that there is material concealment in the petition. He has further stated that during the pendency of the aforesaid substitution application before the Court below being Application No. 175Ka was filed by Meena for her impleadment under Order I Rule 10 CPC. The said application has been rejected by lower Appellate Court by order dated 25.9.2022. The said order has not been brought on record by the petitioner, whereas Meena is petitioner no. 2 in the present petition.

9. It is further stated by the learned counsel for the caveator that the affidavit of the present petition has been sworn by Meena on 28.10.2023, as such, she is having full knowledge about the said order. On the objection being raised about the concealment of the fact, the Court passed the following order on 4.12.2023:-

?1. Today when the matter is taken-up, a prayer has been made on behalf of counsel for the petitioners to adjourn this case for the day.

2. On the other hand, it is argued by learned counsel for private-respondents that the serious concealment of facts has been made while filing the present petition. It is further argued that an application under order I Rule 10 of C.P.C. was filed by the petitioner no. 2 before the court below. The same was rejected on 25.9.2023 but this facts has not been disclosed in the present petition, though the affidavit was sworn on 28.10.2023.

3. In view of the above, prayer on behalf of learned counsel for the petitioner for adjournment is allowed.

4. In the interest of justice, put up this matter on 8.12.2023 as fresh.?

10. On 8.12.2023, when the matter had been taken up, the learned counsel for the petitioner has failed to explain as to why the said order has not been brought on record and any fact regarding the said order has not been incorporated in the petition.

11. The learned counsel for the caveator/respondent no. 2 has also raised following two objections regarding maintainability of the petition:

(i) The present petition has been filed, impleading Meena, as petitioner no. 2. The petitioner no. 2 is not party in the pending appeal. The application filed for substitution, by Ajay Kumar Kesharwani has been rejected and the application filed by Meena under Order I Rule 10 CPC has also been rejected. Since the order, rejecting the application filed by her, under Order I Rule 10 CPC has not been challenged in the present petition, as such, she cannot be impleaded as petitioner no. 2 in the present petition.

(ii) Ajay Kumar Kesharwani & Meena have been described as petitioners/plaintiffs in the array of party and the respondent nos. 1 & 2 have been described as respondents-defendants. The said description is wrong. The petitioner no. 1 was. defendant in Case No. 1 of 1997 and the respondent no. 1 was plaintiff in the said suit.

12. Despite pointed out the said illegality by the counsel for the respondent, the counsel for the petitioner has not intended to make amendment or file any application for correcting the description of the party. Thus the petition suffers from mis-joinder of party as well as wrong description of the party.

13. In the impugned order, the Court below has recorded a finding that the substitution application has been filed by inordinate delay and there is no explanation for filing such a belated substitution application. The learned Appellate Court has also recorded a finding that Ashok Kumar, Ajay Kumar Kesharwani & Smt. Kalawati Devi, who were defendants in Case No. 1 of 1987, in their written statement has nowhere stated that apart from them there is any other legal heir of pre-deceased Amrit Lal. The Appellate Court has further recorded a finding that House No. 49A/159, Rajapur, Allahabad was in name of Late Kalawati Devi, wife of Amrit Lal and after death of Kalawati Devi, the proceedings for mutation of name of Ajay Kumar & Ashok Kumar were initiated and in the said proceedings, Ashok Kumar has submitted no objection for recording the name of Ajay Kumar as legal heir of Smt. Kalawati Devi and accordingly, the name of Ajay Kumar was recorded in Nagar Nigam, Allahabad over House No. 49A/159. Rajapur, Allahabad.

14. The Court below has also recorded a finding that two affidavits were filed before the Nagar Nigam, Allahabad, one by Ajay Kumar and another by Ashok Kumar, both sons of Late Amrit Lal. In both the affidavits, it is stated that they are only legal heir of Smt. Kalawati Devi. Ashok Kumar in his affidavit has stated that his younger brother, namely, Ajay Kumar is legal heir of Smt. Kalawati Devi. The Appellate Court has further recorded a finding that no evidence has been brought on record to establish that Beena & Meena are the daughters of Late Amrit Lal and Smt. Kalawati Devi, as such, the application for substitution application being Application No. 188Ka has been rejected.

15. In the entire petition, not even a single word has been stated as to how the finding recorded by the Appellate Court are perverse. No evidence has been brought on record to establish that Beena & Meena are the daughters of Smt. Kalawati Devi.

16. The learned counsel for the respondent no. 2 has further pointed out that the rent case was filed in the year 1987 and admittedly at that time, Amrit Lal was not alive. In support of the present petition, the affidavit of Meena daughter of Late Amrit Lal has been filed. In the said affidavit, the age of Meena is mentioned as 33 years. The Adhar-Card of Meena having No. 9119 2327 4520 has been annexed at page 43 of the petition. In the said petition, the year of birth of Meena is mentioned as 1990. Thus the year of birth of Meena is 1990, as mentioned in the Adhar-Card and she has also admitted her age in her affidavit as 33 years.

17. The rent case was instituted in the year 1987, in which it was specifically stated that the premises in dispute was let out to Late Makhdoom Ram and before the death of Makhdoom Ram, his son Amrit Lal was died, as such, in rent case, the legal heirs of pre-deceased son Amrit Lal, namely, Ashok Kumar, Ajay Kumar Kesharwani & Smt. Kalawati Devi was impleaded as defendants.

18. Since the original tenant was Late Makhdoom Ram, as such, after his death, the tenancy was jointly inherited by his legal heirs, namely. Ashok Kumar, Ajay Kumar Kesharwani & Smt. Kalawati Devi.

19. There is no document on record to establish that Meena & Beena are the daughters of Late Amrit Lal. Moreover, before the trial Court in proceedings of Case No. 1 of 1997, Smt. Kalawati Devi, Ashok Kumar & Ajay Kumar have filed their written statement. They have not stated in their written statement that there are other legal heir of Late Amrit Lal. As already stated above, the date of birth of Meena is 1990, whereas from the judgment and order dated 3.2.2009 it is clear that even prior to institution of the said proceedings under section 21(1)(a) of U.P. Act No. 13 of 1972, Amrit Lal died. Admission of Meena, the petitioner no. 2 regarding her age in the affidavit filed in support of the petition, clearly established that she was born in 1990. The proceedings are pending before the Court below since 1987 i.e. for more than about 36 years. The claim set-up after 36 years regarding other legal heir of Late Amrit Lal, on the death of Smt. Kalawati Devi it appears to be a claim to prolong the proceedings for indefinite period.

20. There being no pleading and no evidence that Meena is the daughter of Late Amrit Lal & Smt. Kalawati Devi. On the contrary there being sufficient evidence on record to establish that in proceedings for last 36 years, at no point of time, the fact was brought on record about Meena & Beena. The object of the petitioner is apparently clear to prolong the proceedings by one way or the other. There being admission of Ajay Kumar Kesharwani, the petitioner no. 1 and Ashok Kumar in proceedings for mutation of house recorded in name of Smt. Kalawati Devi, about them being only legal heirs, the entire claim is misconceived. Thus the petition lacks merit, suffers from latches and concealment of fact and is hereby dismissed.

21. In view of the above, the petition is hereby dismissed with costs.

Order Date :- 21.12.2023

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