Allahabad High Court
Suman Talwar @ Usha Talwar And 3 Others vs Subhash Chandra And Another on 14 November, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:179036
Court No. - 4
Case :- WRIT - A No. - 17706 of 2024
Petitioner :- Suman Talwar @ Usha Talwar And 3 Others
Respondent :- Subhash Chandra And Another
Counsel for Petitioner :- Arvind Srivastava
Counsel for Respondent :- Vaishali Sahu
With
Case :- WRIT - A No. - 1325 of 2024
Petitioner :- Suman Talwar @ Usha Talwar And 3 Others
Respondent :- Subhash Chandra And Another
Counsel for Petitioner :- Arvind Srivastava
Counsel for Respondent :- Vaishali Sahu
And
Case :- WRIT - A No. - 3679 of 2024
Petitioner :- Suman Talwar @ Usha Talwar And 3 Others
Respondent :- Subhash Chandra And Another
Counsel for Petitioner :- Arvind Srivastava
Counsel for Respondent :- Vaishali Sahu
Hon'ble Ajit Kumar,J.
1. Heard Sri Arvind Srivastava, learned counsel for the petitioners as well as Sri Atul Dayal, learned Senior Advocate assisted by Ms. Vaishali Sahu learned counsel for the respondent/ landlord.
2. These three petitions are connected with each other as they arise of the orders passed on different Misc. Applications in P.A. Case No. 49 of 2019 and accordingly are being heard and decided together. Writ petition no. 17706 of 2024 is taken up as leading petition for the purposes of reference as to the facts and the controversy involved.
3. The petitioner before this Court was the tenant of original owner of the property namely Chaman Lal and has continued till date to be tenant of the premises in question.
4. It is submitted on behalf of the petitioner that late Chaman Lal died issue-less but before his death he bequeathed his properties including the property in question. The predecessor in interest of the landlord Sri Subhash Chandra claimed to have been bequeathed with the property in question by Chaman Lal by executing a Will, whereas other persons namely Saroj Gupta and Shailesh Gupta also set up their title under a different Will claimed to have been executed by that very Chaman Lal. Mr. Srivastava submitted that there is a serious dispute as to the title of property between the above persons and the matter is also engaging attention of this Court in pending First Appeal. It is submitted that while the parties were in serious dispute the present landlord Subhash Chandra got purchased the property from Saroj Dubey vide registered sale deed executed on 30.01.2016 and has now applied for release of the premises in question claiming to be the landlord. Mr. Srivastava submitted that he never paid any rent to Mr. Subhash Chandra acknowledging him to be his landlord as owner of the premises in question and therefore, unless and until the dispute qua the property in question pending between the rival parties claiming title from Chaman Lal is decided, the P.A. Case ought not to have proceeded with. This is why he submits, petitioner filed an application under Order 7 Rule 11 C.P.C. which has been dismissed and against which writ petition being Writ - A No. 1325 of 2024 has been filed. With regard to Writ - A No. 3679 of 2024 it is submitted by learned counsel for the petitioner that the petitioner on the question of bonafide need set up by the alleged landlord, filed an affidavit disclosing certain more properties of which the landlord was the owner and since he had sufficient alternative accommodations, the need was not a bonafide one and for this fact being disputed by landlord by means of affidavit, this could have been asserted only by getting the property surveyed through a Survey Commission. He submits that in these circumstances, he had moved an application which has been rejected by the Prescribed Authority and the said order has been questioned in Writ - A No. 3679 of 2024. Mr. Srivastava further submits that faced with these orders rejecting both Order 7 Rule 11 C.P.C. application as well as the application for Survey Commission, he was left with no other option but to apply for cross examination of the landlord so as to get it elicited from his own mouth factum of ownership of the property being referred to by the present petitioner in his affidavit. He claims that this being very crucial for determination of the point of 'bonafide need' viz-a-viz the comparative hardships, the Prescribed Authority manifestly erred in rejecting the said application also, which is now challenged before this Court in Writ - A No. 17706 of 2024.
5. Mr. Srivastava, thus, submits that the manner in which every such important miscellaneous application has come to be rejected by the Prescribed Authority, there appears to be absolutely one sided adjudication of the case and petitioner certainly will not be having opportunity to demonstrate that there are sufficient alternative accommodations available with the landlord to non suit him in P.A. case filed for release of the accommodation in question.
6. Mr. Dayal, learned Senior Advocate appearing for the respondents submitted that ever since the P.A. Case has been instituted, the tenant petitioner has been moving one after another application to somehow delay and prolong the proceedings and it is with this intention only to frustrate proceedings that he has moved a large number of misc. applications and three such applications upon which orders have been passed are before this Court. He submits that in the matter of release filed under Section 21(1)(a) of Act No. 13 of 1972 the Court has to only look into the jural relationship of landlord and tenant and for deciding that Court will certainly go incidentally into the question whether the person claiming to be the landlord is real landlord or not so as to apply for release. He submits that all these questions, if were to be gone into, there was no occasion for the petitioner to have moved application under Order 7 Rule 11 C.P.C. to get the release application dismissed at the very threshold of proceedings. He submits that it is germane in every P.A. Case under Act No. 13 of 1972 to determine the jural relationship for release of the tenanted premises and the Prescribed Authority, therefore, is hide bound in law to determine this point of jural relationship in the first instance but that can be done along side other points as to bonafide need and comparative hardships. He submits that since the adjudication has to be done summarily, there is no point in getting particular issue decided or particular point decided as preliminary issue or point.
7. On the question of issuance of Commission, Mr. Dayal argued that Commission is normally issued in respect of a property which is tenanted one so as to determine whether the area or adjacent area also belonged to landlord and whether it is lying vacant or not or that the accommodation under tenancy as claimed is worth use for landlord or not and that the bonafide need and comparative hardships required to be determined only after Survey Commission. He submits that affidavits have been filed in the matter by the respective parties and it is always open for the Prescribed Authority to determine the issue / point on that basis and since it lies within the discretion of Prescribed Authority to issue Commission or not and Prescribed Authority has exercised the discretion judiciously, this Court under Article 227 of the Constitution may not interfere.
8. On the point of cross examination,Mr. Dayal submitted that detailed procedure of C.P.C. or evidence act is not applicable to the proceedings under the Act No.13 of1972 and it is always at the discretion of Prescribed Authority to call a witness to the witness box to be cross examined.
9. Mr. Dayal in his ultimate argument submits that since landlord has already concluded his part of evidence and arguments, the tenant respondent may not be permitted to drag the proceedings for a long period of time and since these are summary proceedings, thus, Prescribed Authority may be permitted to be decided on the basis of the pleadings raised and affidavits filed.
10. Having heard learned counsel for the respective parties and having perused the records, I find there to be three separate orders impugned in three petitions before this Court. So far as the Order 7 Rule 11 C.P.C. application is concerned, in my considered view since the jural relationship is always to be seen by the Prescribed Authority in an application for release and a point is necessarily to be framed for this purpose and since only three points required to be adjudicated, firstly the jural relationship, secondly the bonafide need and third comparative hardship, I do not see any justification for any order 7 Rule 11 C.P.C. application to be considered for the purposes of determination of first/ point and therefore, since the Prescribed Authority will have to decide the said point along side other points, I do not find any manifest error in the order of Prescribed Authority in rejecting Order 7 Rule 11 application and so also I do not find any manifest error in rejecting an application moved by the petitioner for deciding a particular issue first as a preliminary issue.
11. In so far as the application for issuing a Survey Ameen Commission is concerned, the judgment that has been cited before me in the matter of Dwarika Nath Soni v. Bhagwan Das Gupta, 2003 (1) ARC 418 and Harish Chandra Jauhari v. Sunil Bajpai and Another 2008 (3) ARC 171, I find it to be relating to the tenanted premises and the Court has held therein that it lies within the discretion of Prescribed Authority to order for Commission.
12. Looking to the facts of the case where the affidavits have been filed disputing the averments made by the rival parties qua alternative accommodation of property, I find it more appropriate that parties get themselves cross examined to elicit the truth as to the status of the property and its title. If the alternative accommodation is admitted even during the cross examination it may have bearing upon comparative hardships only and therefore, I do not find any prejudice to either party, if cross examination is allowed instead of issuing a Survey Commission.
13. Learned Advocates appearing for the respective parties Mr. Srivastava and Mr. Dayal agreed with the order to be passed for the purposes of cross examination but at the same time request is made that some time bound period may be prescribed for the purpose to conclude the cross examination and thereafter also the hearing is concluded and the P.A. case accordingly stands decided.
14. In view of the above and with the consent of the parties, while I decline to interfere with the orders passed in Writ - A No. 3679 of 2024, wherein the request for Survey Commission has been turned down and so also in Writ - A No. 1325 of 2024 wherein the order rejecting application under Order 7 Rule 11 C.P.C. has been passed and also the order rejecting application for preliminary issue, I do interfere with the order passed by the Prescribed Authority in this leading petition dated 24.09.2024, whereby application for cross examination dated 13.08.2024 has been rejected. Accordingly, Writ - A No. 1325 of 2024 and Writ - A No. 3679 of 2024 are hereby dismissed but the order dated 24.09.2024 passed by the Prescribed Authority rejecting application dated 13.08.2024 (Paper no. 106-C) is hereby set aside. The Prescribed Authority shall ensue that cross examination of witnesses both at the end of plaintiff to the release application and defendant-tenant stand concluded within a maximum period of three months from the date of production of certified copy of this order. It is further provided that court will not grant any unnecessary adjournment to either of the parties and any adjournment except in the case of natural calamity or riot or mourning in the close family for which the counsel may not appear, each adjournment shall be visited with a cost of Rs. 1,000/-. It is further provided that after the evidence of parties is concluded, the Prescribed Authority shall ensure that the final hearing is concluded accordingly also within a maximum period of one month and the P.A. Case shall accordingly be finally decided.
15. With these aforesaid observations and directions, Writ - A No. 17706 of 2024 is hereby allowed and Writ - A No. 1325 of 2024 and Writ - A No. 3679 of 2024 are dismissed.
Order Date :- 14.11.2024
IrfanUddin
