Atteqey And Others vs Masoom Ali @ Mohd. Ahmad (Deceased ...
2023 Latest Caselaw 1254 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 19
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 124 of 2023
 

 
Petitioner :- Atteqey And Others
 
Respondent :- Masoom Ali @ Mohd. Ahmad (Deceased Thru. L.R.,S) Km. Kahkasha Parveen And Others
 
Counsel for Petitioner :- Mohd. Shakeel
 
Counsel for Respondent :- Manju Nagaur
 

 
Hon'ble Manish Mathur,J.

Heard learned counsel for petitioners and learned counsel for opposite parties who have appeared on the caveat.

Petition under Article 227 of Constitution of India has been filed assailing order dated 19th April, 2022 passed by trial court rejecting application No. C-150 for summoning of documents filed by petitioners-defendants. Revisional order dated 10th October, 2022 passed under in S.C.C. Revision rejecting the same has also been challenged.

Learned counsel for petitioner submits that property in question was under title of one Kallu who passed away in the year 1984 issueless and his wife had precedeased him. It is submitted that during the period he was alive, the property in question had been leased out to father of petitioners and during the life time of Kallu, the opposite party No.1 Masoom Ali was introduced by Kallu as his agent only for the purposes of collection of rent on his behalf. It is submitted that upon death of Kallu, the agency stood automatically terminated and Masoom Ali thereafter did not have any right or title or claim as land lord over the property in question but still filed suit under Section 20 of U.P. Act No.13 of 1972 which was registered as Suit No. 109 of 2022. During pendency of aforesaid proceedings, Masoom Ali passed away and has been substituted by his heirs and legal representatives. It is further submitted that although in the plaint, it has been claimed that Masoom Ali is the land lord of the premises in question being the son of late Kallu, the petitioners-defendants denied the said claim in their written statement with specific assertion that Masoom Ali in fact was the son of one Hasmat Ali and not Kallu. It is submitted that it is in pursuance of aforesaid pleadings in the written statement that application C-150 was filed seeking a direction to the plaintiffs to produce documents to indicate that Masoom Ali was the son of late Kallu and not Hasmat Ali. It is submitted that although certain documents had been filed by the plaintiff to substantiate his claim that he was son of late Kallu but none of the documents adduced by the plaintiff are capable of being treated as evidence.

Learned counsel for petitioner further submits that the trial court has rejected petitioners' application in a completely cursory manner only on the ground that allowing the application would be detrimental to expeditious disposal of suit which is pending since 2005 and is one of the oldest pending suits. It is submitted that trial court has also fell in error in rejecting the application also on the ground that the suit proceedings are at the stage of final hearing with evidence already having concluded and therefore also the application was not required to be allowed. It is submitted that since the application is crux of the matter particularly since it pertains to evidence being led by plaintiff in order to substantiate that he was land lord of the premises in question, there was no occasion for the trial court to have rejected the same on extraneous consideration.

Learned counsel has also assailed revisional order dated 10th October, 2022 on the ground that the same has been passed without due application of mind to actual purpose of application filed by the petitioner-defendant requiring submission of relevant documents by the plaintiff in order to substantiate the claim of being land lord. Learned counsel has adverted to judgment rendered by Hon'ble Supreme court in the case of State of Assam versus Union of India and others reported in A.I.R. 2018 Supreme Court 3446 and judgment rendered by co-ordinate bench of this court in the case of Janak Raj versus Smt. Indu Nath and another reported in 2008 (36) Lucknow Civil Decisions 2314 to buttress his claim.

Learned counsel appearing on behalf of opposite parties has refuted the submissions advanced by learned counsel for petitioners with submission that application C-150 has been deliberately filed by the petitioners-defendants only with a view to delay early disposal of suit proceedings. It is submitted that petitioner had ample opportunity to file such an application during early course of proceedings and not once evidence has already concluded and the matter is pending at the stage of final hearing. It is further submitted that once the defendants had already accepted claim of Masoom Ali being agent of Kallu, the question of title as such does not require to be established particularly in rent control proceedings. Learned counsel has also drawn attention to paragraph No.8 of the written statement to submit that defendants themselves have admitted the fact that they are no longer residing in the premises in question and have in fact shifted to new address. It is further submitted that ample documents in the shape of voter identity card and school certificate of Masoom Ali are already on record from which it can be amply ascertained whether he was land lord of the premises or not.

Considering submissions advanced by learned counsel for parties and upon perusal of material on record, it appears that suit under Section 20 of U.P. Act No. 13 of 1972 has been filed by Masoom Ali claiming himself to be land lord of the premises in question on the basis of being son of late Kallu. In the written statement filed on behalf of all the defendants, the factum of Masoom Ali being son of Kalloo has been specifically denied. However in paragraph 15 of the written statement, it has been admitted that Masoom Ali was introduced by Kallu as his agent only for the purposes of collection of rent on his behalf. It has also been admitted that Masoom Ali is a distant relation of Kallu.

Hon'ble Supreme Court in the case of Shamim Akhtar versus Iqbl Ahmad and another reported in (2000) 8 Supreme Court Cases 123 has already settled law that title of a property in question can not be decided in rent control proceedings although the same may be seen as incidental for determination of question of person who claims to be land lord.

Section 3(j) of U.P. Act No. 13 of 1972 clearly defines 'land lord' in relation to a building to means a person to whom its rent is or if the building were let would be payable and includes the agent or attorney of such person except for definition indicated in clause 3(g) of the Act. Section 3(g) of the Act defines family in relation to a land lord or tenant of a building and includes male lineal descendants. The definition of Sections 3(g) and 3(j) as given in the Act are as follows:-

"3(g) family , in relation to a landlord or tenant of a building, means, his or her-

(i) spouse,

(ii) male lineal descendants;

(iii) such parents, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building.

xxxx xxxxxx xxxxxx

'3(j) 'landlord', in relation to a building, means a person to whom its rent is or if the building were let, would be, payable and includes, except in clause (g), the agent or attorney, or such person;"

Considering the aforesaid definitions, it is apparent that the question of title does not arise with regard to a claim of a person being land lord of the premises which are covered under provisions of the Act. The only aspect required to be considered is whether the plaintiff would come within definition of a 'land lord' or not. Section 3(j) already indicates land lord to mean a person to whom rent of building is payable except for an agent or attorney in the definition given under section 3(g) of the Act which defines family and family of a land lord or a tenant of a building and includes male lineal descendants.

Upon applicability of aforesaid definition in the present case, it is evident that the defendants in their written statement have clearly admitted the fact that Masoom Ali was a distant relation of Kallu and had been introduced in the year 1981 as his agent for the purposes of payment of monthly rent to him on Kallu's behalf.

In the considered opinion of this court, once the defendants themselves have admitted Masoom Ali to be distant relation of Kallu, the original plaintiff as such would be covered under Section 3(g)(ii) of the Act and would therefore be contemplated under the definition of land lord in terms of Section 3(j) of the Act.

It is also a relevant factor that the written statement has been filed on behalf of all the defendants in which in paragraph 8, the defendants have denied service of notice upon them on the ground that they have already left the disputed house and are residing at new address.

It is also relevant factor as indicated in the impugned orders that the suit is oldest pending in the court since the year 2005 in which evidence has already concluded and the suit itself is at the stage of final hearing. As such, no exception can be taken to the order impugned rejecting application for summoning of document.

So far as judgment relied by learned counsel for petitioners are concerned, it is evident that in the case of State of Assam, versus Union of India (supra) pertained to boundary dispute between two states of Union of India for which purpose certain topographical maps maintained in the head office of Survey of India were required to be produced. As such factual aspect of the aforesaid judgment is clearly not applicable in the present facts and circumstances of the case. In the case of Janak Raj (supra), the order under challenge was the order whereby certain documents had been summoned by the court which in the opinion of the Court could not be said to have resulted in failure of justice as envisaged under Section 115 of the Code of Civil Procedure. The aforesaid judgment in the respectful opinion of this Court is inapplicable in the facts and circumstances since the order impugned pertains to rejection of application for summoning of documents as being irrelevant and not is an order summoning documents.

From the material on record, it also transpires that documents pertaining to claim of plaintiff as land lord have already been filed and are on record as papers No.Ga-51/2, C52/C,52/3, papers 62/2- 62/4, 62/5-62/7, 62/8, 68/2 as well as 68/3 along with other documents on record as paper No.Ga-93/2 and 93/3. As such it appears that claim of petitioner that there are no documents on record to prove claim of plaintiff as land lord is incorrect.

In view of aforesaid, petition being devoid of merits is dismissed at the stage of admission itself.

Order Date :- 12.1.2023

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