Praveen Kumar Mishra vs Dr. Gaurav Mishra And Another
2023 Latest Caselaw 16933 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

					Neutral Citation No. - 2023:AHC:123210
 
							A.F.R.				
 
						         Reserved On :- 15.05.2023
 
						         Delivered On :-31.05.2023
 
Court No. - 2
 
Case :- MATTERS UNDER ARTICLE 227 No. - 4795 of 2023
 
Petitioner :- Praveen Kumar Mishra
 
Respondent :- Dr. Gaurav Mishra And Another
 
Counsel for Petitioner :- Pankaj Agarwal,Gaurav Tripathi
 
Counsel for Respondent :- Ramesh Chandra Agrahari
 

 
Hon'ble Neeraj Tiwari,J.

1. Heard Sri Pankaj Agarwal, learned counsel for petitioner and Sri Anoop Trivedi, learned Senior Counsel assisted by Sri Ramesh Chandra Agrahari, learned counsel for respondents.

2. Present petition has been filed seeking following relief:-

"It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to call for the records of the court below and set aside the impugned order dated 10.04.2023 passed by Additional Judge Small Causes Court No. 2, Kanpur Nagar in Execution Case No. 02/23/2022 and allow the Execution Case No. 206/23/2022 and also allow the instant petition striking of the said execution in its full satisfaction in view of the fact that the tenant-respondent IInd Set had delivered possession to the petitioner in the capacity of the owner and landlord of the shop in question; and/or such other and further order be passed as is expedient in the interest of justice."

3. Since, only legal question is involved in the present petition, therefore, with the consent of parties, without inviting for affidavits, petition is being decided at the admission stage itself.

4. Brief facts of this case are that Release Application dated 22.07.2008 has been filed by three plaintiffs, which was registered as P.A. Case No. 5 of 2008. During the pendency of the said Release Application, plaintiff No. 1, mother of plaintiff No. 2 and grandmother of plaintiff No. 3 died. The Release Application was ultimately allowed vide order dated 13.01.2020, against which, Rent Appeal No. 16 of 2020 has been filed by tenant-respondent, which was dismissed by the District Judge vide order dated 24.01.2022. The tenant-respondent preferred Writ Petition under Article 227 before this Court, being Civil Misc. Writ Petition No. 1343 of 2022, which was also dismissed by this Court vide order dated 08.03.2022. The order dated 13.01.2020 passed in P.A. Case No. 5 of 2008 has attained finality.

5. Sri Pankaj Agarwal, learned counsel for petitioner submitted that for execution of order dated 13.01.2020, two execution applications have been filed; one by petitioner-plaintiff No. 2 dated 15.10.2022 and another by plaintiff No. 3 dated 02.03.2022. Both the execution applications are still pending for final disposal. It is next submitted that during the pendency of execution proceeding, possession of shop was handed over to plaintiff No. 2, therefore, it is required on the part of Execution Court to close the proceedings, but instead of that, Execution Court has proceeded to pass order dated 21.03.2023 directing respondent/plaintiff No. 2 to hand over the possession of shop to respondent/plaintiff No. 3. He firmly submitted that once the possession is given to any of the landlord, Execution Court has no authority to proceed with the execution proceedings in absence of collusion between tenant or landlord.

6. It is further submitted that said order was challenged before this Court by filing Matters Under Article 227 No. 3373 of 2023, which was disposed of vide order dated 28.03.2023 with direction to the Execution Court/Prescribed Authority to decide both the applications within 10 days from production of certified copy of order. Order dated 28.03.2023 was served upon the Execution Court on 31.03.2023, but at that time, Advocates at Kanpur District Court were on strike, therefore, parties were appeared in person. In the present case, due to strike of Advocates, petitioner-plaintiff No. 2 has sought adjournment vide application dated 06.04.2023, but without hearing counsel for parties, judgment was reserved on 07.04.2023 and ultimately pronounced on 10.04.2023.

7. Learned counsel for petitioner has assailed the impugned order on two grounds; first ground which is taken in Matters Under Article 227 No. 3373 of 2023 that once the possession is handed over to one of the landlord, it is required on the part of Execution Court to close the proceedings. Secondly, impugned order has been passed without hearing petitioner-plaintiff No. 2. In fact his presence was recorded in the court room as the Judge was sitting in his Chamber and without hearing his counsel, order has been passed, which is in gross violation of principle of natural justice.

8. Per contra, Sri Anoop Trivedi, learned Senior Counsel vehemently opposed the submissions of counsel for petitioner and submitted that so far as present controversy is concerned, same issue was subject matter of Writ Petition No. 20599 of 2007 (Sri Ram Gupta vs. Prescribed Authority/Civil Judge (S.D.), Kanpur Dehat and Ors., in which, this Court after framing the questions, has replied the same and the questions so framed by the Court are exactly same which is in dispute before this Court. He next submitted that Court has considered this fact that bona fide need was set up in favour of co-landlord whereas tenant has given possession to another co-landlord and Court after framing questions, has replied that Prescribed Authority committed patent error of law in rejecting the application for delivery of possession filed under Section 23 of the Act by the petitioner-landlord, simply on the ground that the possession has been delivered to a co-landlord. He further submitted that as the facts are same, therefore, ratio of law laid down is very well applicable in this case also.

9. So far as issue of hearing of parties is concerned, he firmly submitted that the presence of parties is very well recorded by the Prescribed Authority, therefore, oral averments contrary to the findings of Court cannot be accepted, if not supported by the conclusive evidence.

10. In his rejoinder argument, Sri Pankaj Agarwal submitted that in the matter of Sri Ram Gupta (Supra), there was issue of collusion between co-landlord and tenant whereas in the present case, there is no allegation of collusion between the parties and possession has admittedly handed over to the petitioner by the tenant, therefore, this judgment would not be applicable in the present case.

11. I have considered rivals submissions made by counsel for parties and perused the records as well as judgments cited above.

12. Brief facts of the case is that earlier a suit was filed by plaintiff Nos. 1, 2 & 3 against the defendants setting the bonafide need of plaintiff No. 3. During the pendency of proceeding, plaintiff No. 1 died and ultimately suit was allowed. Upon that, two execution applications were filed; one by plaintiff No. 2 and another by plaintiff No. 3. It is undisputed that suit was filed on the ground of bonafide need of plaintiff No. 3 and during the pendency of execution proceeding, defendant has given possession to plaintiff No. 2. Issue before the Court is as to whether after possession, proceeding shall continue before the Execution Court or not and further Execution Court can pass order directing plaintiff No. 2 to hand over possession to plaintiff No. 3, for whom bonafide need was set up.

13. Similar issue was subject matter of this Court in the matter of Sri Ram Gupta (Supra) and while deciding the same, Court has framed two issues, which is quoted below:-

"8. The following two issues on these facts fall for consideration in the present petition:-

(1) Whether an application for delivery of possession of the released property is liable to be rejected, where the tenant alleges that he has delivered the possession to a co-landlord, whose need was not set up and/or the possession has not been handed over to a co-landlord whose need was subject-matter of release proceedings?

(2) Whether there is collusion in between the respondent Nos. 2 and 3? Taking the first point first let us have a look to the provisions of section 23 of the Act.

Section 23 of the Act reads as follows:-

Enforcement of Eviction Order.--(1) The prescribed authority may use or caused to be used such force as may be necessary for evicting any tenant against whom an order is made under section 21 or on appeal under section 22, as the case may be, or against any person found in actual possession, and for putting the landlords into possession.

(2) Every order of the prescribed authority in proceedings under this section shall be final."

14. First issue is relevant for the present controversy and the same was replied in foregoing paragraphs i.e. Paragraph Nos. 9 to 14, which are quoted below:-

"9. The section 23 casts statutory obligation; (1) to evict any tenant against, whom an order has been made; or (2) against any other person found in actual possession; and (3) put the landlord into possession. The word 'landlord' in this provision (section 23) should have a restricted meaning. 'Landlord' has been defined in section 3(j) of the Act. The relevant portion is quoted below:-

In this Act unless the context other wise requires:-

a..... ...... ......

b ..... ...... ......

c..... ...... ......

d ..... ...... ......

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

10. The definition of 'landlord' as given in the definition clause is subject to "unless the context otherwise requires". Admittedly the release was sought for and was granted for the need of Shri Ram Gupta, the petitioner, landlord. Sri Ram Chandra Gupta's need was not set up in the release application. He was the co-landlord. The word 'landlord' in section 23 shall draw its colour from the word 'landlord' used in section 21 of the Act. As a matter of plain grammatical construction it is obvious that the word 'landlord' under section 23 of the Act should be interpreted with reference to section 21(1)(a).

11. The Supreme Court in a case under Tamil Nadu Buildings (Lease and Rent Control) Act K.V. Muthu v. Anga Muthu Ammal: AIR1997 SC 628, has held that the effect of words 'unless context otherwise requires' in the definition clause has to be read in the light of the context and scheme of the Act as also the object for which the Act was made by the Legislature. While interpreting the definition, it has to be borne in mind that interpretation placed on it should not be repugnant to the context. It should be such as it would aid the object which is sought to be served by the Act. A construction which would defeat or is likely to defeat the purpose of the Act has to be ignored and not accepted. If a wider meaning is given to landlord to include the whole body of the landlords under section 23 of the Act, it would defeat the very purpose and object of section 21 of the Act. Section 24 of the Act gives option of re-entry to the tenant evicted in the proceedings under section 21 of the Act. The object of the Act will be achieved only when the possession of the release accommodation is delivered to that landlord for whom it was released.

12. The Supreme Court in the case of Syed Asadullah Kazmi v. A.D.J.: 1981 ARC 542 had an occasion to interpret section 23 of the Act. It has been interpreted by the Supreme Court that once the release order having become final it cannot be reopened by the prescribed authority on the ground of subsequent events. The Supreme Court has observed as follows:

Plainly, the order dated 25thMarch, 1997 of the appellate authority releasing a portion of the premises in favour of the third respondent and leaving the remaining portion in the tenancy of the appellant acquired finality when the proceedings taken against it by the appellant failed. The order having become final was found to give effect to it. In doing so, the prescribed authority was not acting outside its jurisdiction or contrary to law..........................the order for release of a portion of the accommodation acquired finality before the death of Raj Kumar Sinha and the controversy concluded by it could not be reopened.

13. In view of the above discussion, the word 'landlord' used in section 23 of the Act should be understood, in case there are more than one landlords, the landlord for whose need the release application was allowed. In other words, the word 'need' of landlord has a nexus with the particular landlord in case of co-landlords. Reverting to the facts of the present case it is axiomatic that the shop in dispute was released for the need of the present petitioner-landlord namely Shri Ram Gupta to whom, admittedly, the tenant has not delivered the possession of the shop in question. This being the position, the prescribed authority committed patent error of law in rejecting the application for delivery of possession filed under section 23 of the Act by the petitioner-landlord, simply on the ground that the possession has been delivered to a co-landlord.

14. The above view finds support from section 24 of the Act which provides an option of re-entry by the tenant. It provides that where a building is released in favour of the landlord and the tenant is evicted under section 21 or on appeal under section 22, and the landlord puts any person different from the person for whose occupation according to the landlord's representation, the building was required, or the landlord omits to occupy it within one month or such extended time as the prescribed authority for sufficient cause allow from the date of his obtaining possession, the tenant will have an option of re-entry"

15. In the case of Sri Ram Gupta (Supra), shop in dispute was released for the need of petitioner-landlord and admittedly, tenant has not delivered the possession of the shop in question, upon which, application was filed under Section 23 of the Act which was rejected on the ground that possession has been delivered to co-landlord. Court has depreciated the same and has taken view that it is patent error of law in rejecting the application and allowed the petition with cost of Rs. 10,000/-. Court has also held that it is also getting support from Section 24 of the Act which provides option of re-entry by the tenant in such matters. Meaning thereby, the property in question must have been given to the person in whose favour, bonafide need has been set up.

16. From the perusal of issue No. 1 and its reply, it is apparently clear that facts of the present case are exactly same and Court has taken a firm view that once bonafide need is set up in favour of co-plaintiff, Execution Court has full right to proceed with and pass order for possession of property in question in favour of co-landlord for whom bonafide need was set up.

17. Further, from the perusal of order sheet, it is apparently clear that though there was strike in Kanpur District Court, but both the parties were present and after hearing them, Court has passed order complying the direction of this Court dated 28.03.2023 passed in Matters Under Article 227 No. 3373 of 2023, therefore, such allegation not supported with conclusive evidence cannot be accepted.

18. Learned counsel for petitioner has also argued about the collusion and submitted that this judgment would be applicable in case of collusion between the co-landlord and tenant which cannot accepted. Court was conscious enough with the facts, therefore, while framing the issues, has framed first issue with regard to legal question involved in the matter. Issue No. 1 was based only on the facts of that case and squarely covers the dispute before this Court. Second issue is dealt with collusion and that too is not coming in the rescue of petitioner-plaintiff No. 2 as that does not laid down any ratio of law. Therefore, this argument of petitioner is also having no force.

19. Therefore, under such facts and circumstances of the case as well as law laid down by this Court, petition lacks merit and is, accordingly dismissed.

20. No order as to costs.

Order Date :- 31.05.2023

Sartaj