Bachchan Pandey vs Additional District Judge Court No.5 ...
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Allahabad High Court

Bachchan Pandey vs Additional District Judge Court No.5 ... on 8 April, 2025

Author: Pankaj Bhatia

Bench: Pankaj Bhatia

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025: AHC-LKO:19739
 
Court No. - 6
 
Case :- CIVIL MISC REVIEW APPLICATION No. - 14 of 2025
 

 
Applicant :- Bachchan Pandey
 
Opposite Party :- Addl. District Judge Court No 5. Unnao And 4 Others
 
Counsel for Applicant :- Purusottam Awasthi
 
ALONG- WITH
 
Case :- WRIT - A No. - 1000151 of 2013
 

 
Petitioner :- Bachchan Pandey
 
Respondent :- Additional District Judge Court No.5 Unnao And Ors.
 
Counsel for Petitioner :- Ravi Nath Tilhari, Mohiuddin Khan, Purusottam Awasthi, Shiv Nath Tilhari
 
Counsel for Respondent :- Manish Kumar, Adnan Ahmad
 

 
Hon'ble Pankaj Bhatia,J.
 

Order on Review application

1. Heard the counsel for the applicant and Sri Adnan Ahmad who appears for the respondents.

2. The review application has been filed seeking review/recall of the judgment dated 13.12.2024.

3. The contention of the counsel for the applicant is that it was an ex-parte order and the counsel for the petitioner could not appear, as such, the writ petition was dismissed without hearing the counsel for the petitioner.

4. The cause shown is genuine. The review application is allowed. The judgment dated 13.12.2024 is recalled. The matter is heard on merits.

Order on Writ Petition

5. The present writ petition has been filed challenging the orders dated 25.10.2013, 14.08.2013 and 27.09.2013 passed by the learned Additional District Judge, Unnao as an appellate authority in exercise of powers under section 22 of the U.P. Act no.13 of 1972. The petitioner has also challenged the judgment and order dated 19.01.2011 passed by the Prescribed Authority in P.A. Case No.14 of 2007 (Jalaluddin vs. Bachchan Pandey).

6. The facts, in brief, that emerge from the pleadings are that the father of the respondent no.4 to 6, had filed an application under section 21(1)(a) of the U.P. Act no. 13 of 1972 seeking the release of the shop in question which is under the tenancy of the petitioner on the ground that the same was required for establishing the business of photography and the same was personally needed. The said application came to be allowed by means a judgment dated 19.01.2011. Aggrieved against the said judgment, an appeal was preferred by the petitioner being Appeal No.1 of 2011 (Bachchan Pandey vs. Jalaluddin). During the pendency of the appeal, the landlord i.e. the applicant of the release application namely Jalaluddin passed away, as such, an application was moved by his two sons seeking amendment of the release application. The said amendment application was allowed. In terms of the amended prayer, it was pleaded that after the death of the father, the two brothers are unemployed and there was no other means of fulfilling their livelihoods, as such, the shop in question should be released in their favour. The said release application, on the basis of the amended pleadings, came to be allowed by means of a judgment dated 25.10.2023, which is under challenge.

7. The submission of the counsel for the petitioner is that the amendments were carried out in the release application during the pendency of the appeal and thus, it was incumbent upon the appellate authority to have remanded the matter and failing to do so, the right of appeal which flows in favour of the petitioner by virtue of Section 22 has been denied. He further argues that during the pendency of the appeal, affidavits were filed by the respondents, the sons of the original landlord, demonstrating that they were unemployed, to which a counter affidavit was filed by the petitioner stating that the first son of the deceased landlord was working somewhere in Indonesia and the second son was running a shop as a tenant at Kanpur and was doing the same business.

8. In support of the said objection, affidavit of the son of the landlord, where the shop was being run as a tenant, was also filed. It is further argued that an application for cross examination was moved, which was rejected. An application for remanding the matter to the prescribed authority was moved, which too was rejected and thus, the appellate court proceeded to decide the appeal based upon the evidences which were not even permitted to be cross examined.

9. The counsel for the petitioner places reliance on the judgment in the case of Bhanu alias Nizamuddin vs. Nankulli and others; Second Appeal No.659 of 1993 dated 26.09.1996 and in the case of Makkhan vs. Additional Judge Small Causes Act, Aligarh and others; Civil Misc. Writ Petition No.36048 of 2000 decided on 18.08.2000

10. In the light of the said, it is argued that the appellate order deserves to be quashed and should be set aside and the matter should be remanded to the prescribed authority for consideration afresh.

11. The counsel for the landlord, on the other hand, supports the impugned order by arguing that in terms of the mandate of Section 22 read with Section 10 of the Act, the appellate court is well and duly empowered to decide the issues and no question of remand would arise in view of the specific finding that the affidavit filed by the son of the landlord was not controverted by the tenant. He further argues that in terms of the mandate of Section 21(7) of the U.P. Act No.13 of 1972, it is the prescribed that in the event of death of the landlord, the sons can move an application and established their own bonafide need which has been done. He further argues that the sons of the landlord, required the shop in question for establishing their business and there is no denial that the son of the landlord was working for repairing camera, etc. He lastly argues that it cannot be expected that merely because the release application is pending, the person would sit idle to establish his bonafide need.

12. Considering the submissions made at the bar, it is admitted position, even as per the affidavit filed by the petitioner and the supporting affidavit filed by the landlord, that the son of the landlord was running a shop at Kanpur as a tenant, the present shop sought to be released is at Unnao where the family of the landlord was staying.

13. The first submission of the counsel for the petitioner that the shop was not required as he was a tenant in another shop, merits rejection for the reason that even as per the affidavit, the son of the landlord was running a shop as a tenant and not as a owner of the shop and it cannot be expected that the landlord having his own shop should be forced to continue as a tenant elsewhere. Thus, the submission to that extent merits rejection and is rejected.

14. Coming to the second submission whether the appellate court could have gone into the evidence or not at the appellate stage, in terms of the mandate of section 21 read with section 10 of the Act, the appellate court is well and duly empowered to decide all the issues that arise including the question of facts and it is not essential that the matter be remanded as is being argued, more so when proceedings under section 21 are summary in nature and have to be decided on the basis of the affidavits which are read, the strict rule of evidence have no applicability to the procedure to be adopted and followed under the U.P. Act No.13 of 1972.

15. The reliance on the judgment in the case of Bhanu alias Nizamuddin (supra) would have no applicability as the same arose from the regular civil proceedings whereas the proceedings under UP Act No. 13 of 1972 are summary in nature. The judgment in the case of Makkhan (supra) would also not apply as the court was of the view that the further evidence led at the appellate stage with regard to dispossession would be seen as a subsequent event by the prescribed authority.

16. Finding that in the present case, the son of the landlord was, admittedly as per the submission of the petitioner also, running a shop as a tenant at a city, which is distinct from the city in which the shop in question is situate, it cannot be expected that the son who has a shop at the district of his residence to run a tenanted shop at a separate district. There is no denial of the fact that the petitioner was having a residential accommodation and was running a tent business which could be run by the petitioner from his residential accommodation also.

17. Considering the overall perspective, I do not see any reason to interfere with the appellate order. The writ petition is dismissed.

18. At this stage, the counsel for the petitioner prays that he may be granted some time to vacate the premises.

19. Considering the said submissions, the petitioner is granted six months' time to vacate the shop in question subject to the petitioner filing an undertaking within a period of fifteen days from today before the appellate authority in the form of an affidavit that he would handover the vacant and physical possession of the shop in question to the landlord and to no one else on or before 30.10.2025. The balance amount of the rent shall also be deposited by the petitioner within a period of one month from today.

20. In the event of default of filing an undertaking or deposing the rent, the order impugned shall be executed in accordance with law. The overdue rent, as directed by the interim order of this court shall be paid till 30.10.2025.

Order Date :- 8.4.2025

VNP/-