Allahabad High Court
Navin Kumar Agrawal @ Nawal Kisore ... vs Sri Rajeev Sharma on 25 September, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:173828
HIGH COURT OF JUDICATURE AT ALLAHABAD
MATTERS UNDER ARTICLE 227 No. - 11823 of 2025
Navin Kumar Agrawal @ Nawal Kisore Agrawal
.....Petitioner(s)
Versus
Sri Rajeev Sharma
.....Respondent(s)
Counsel for Petitioner(s)
:
Jitendra Kumar Srivastava
Counsel for Respondent(s)
:
Court No. - 37
HON'BLE CHANDRA KUMAR RAI, J.
1. Vakatnama filed on behalf of respondent is taken on record.
2. Heard Mr. Jitendra Kumar Srivastava, learned counsel for the petitioner and S.K. Mishra, Mr. Ajay Mishra & Mr. Anil Kumar Mishra, learned counsel for respondent.
3. Brief facts of the case are that plaintiff/respondent filed a release application in respect to the shop in dispute before the Prescribed Authority, Allahabad, which was registered as P.A. Case No.1 of 2013 under Section 21 (1) (a) of the U.P. Urban Buildings (Regulation of letting, Rent and Eviction ) Act, 1972 (hereinafter referred to as "U.P. Act No.13 of 1972"). The Prescribed Authority vide order dated 07.05..2015 decided the release application in ex-parte manner. Against the ex-parte order dated 07.05.2015 petitioner/ defendant/ tenant filed an application under Order-9, Rule-13 of Civil Procedure Code, (hereinafter referred to as the C.P.C.). The aforementioned application was supported by application under Section 5 of Indian Limitation Act. Respondent/Plaintiff/Landlord filed his objection to the aforementioned application. The Prescribed Authority/Additional Civil Judge vide order dated 08.09.2025 rejected the application filed under Order 9 Rule 13 C.P.C. Hence this petitioner filed for the following relief: "i) exercising its supervisory powers under Article 227 of the Constitution of India and set aside the Impugned order dated 07.05.2015 passed by the Prescribed Authority in PA Case No. 1/2013 (Rajeev Sharma Vs. Navin Kumar Agrawal) (Annexure No.1 to the present petition). ii). set aside the order dated 08.09.2025 passed by Additional Civil Judge (Senior Division), Court Room-13, Prayagraj passed in MPA Case No. 1/2015 (Computer Case No. 147/2019) connected with PA Case No. 1/2013 (Navin Kumar iii) remit the matter back to the trial court to decide the case in question afresh in the light of the observation made by this Hon'ble Court."
4. Learned counsel for the petitioner submitted that Prescribed Authority has passed the order dated 07.05.2015 in ex-parte manner without considering mandatory Provision of Section 21 (3) of U.P. Act No.13 of 1972. He further submitted that requirement of notice to tenant prior to six month of filing of the release application is mandatory, as such the release order passed by Prescribed Authority cannot be sustained in the eye of law. He further submitted that application filed on behalf of tenant under order 9 Rule 13 C.P.C. has been rejected on misconceived ground. He submitted that both the impugned orders should be set aside and release application should be heard afresh.
5. On the other hand, learned counsel appearing for the respondent/landlord submitted that the release application was filed by landlord in the year 2013 and ex-parte order of allowing the release application was passed after two years on 07.05.2015 after sufficient service of notice and filing of vakalatname by the petitioner/tenant. He submitted that there was bonafide need for the shop in question, which has been rightly considered and allowed by the Prescribed Authority. He further submitted that time barred application under Order 9 Rule 13 C.P.C. filed by petitioner/tenant, has been rejected assigning reason in support of the order. He further submitted that more than 12 years have passed from the date of filing of the release application by the landlord and even after passing of the release order possession of shop has not been delivered to the respondent/landlord by the tenant. He submitted that against the order of release, appeal under Section 22 of U.P. Act No. 13 of 1972 is provided but without availing the alternative remedy, the instant petition under Article 227 of the Constitution of India has been filed by the petitioner, which should be dismissed as petitioner/tenant is only interested to linger on the proceeding by one way or the other.
6. I have considered the arguments advanced by the learned counsel for the parties and perused the record.
7. There is no dispute about the fact that application for release of the shop in question was filed in the year 2013, which has been allowed in ex-parte manner in the year 2015 by prescribed authority. There is also no dispute about the fact that application under Order 9 Rule 13 C.P.C. filed by the petitioner/ tenant has been dismissed under the impugned order. There is also no dispute about the fact that no appeal has been filed against the order passed by the Prescribed Authority.
8. In order to appreciate the controversy involved in the matter perusal of the relevant portion of the ex parte order passed by the prescribed authority on 07.05.2015 will be relevant, which is as under:
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???????? ?????? ???? ????????????? ??? ?? ??? ???? ??? ?? ?? ???????? ???? 2/98, ??????? ???, ????????, ???????? ?? ????? ?????? ? ?????? ??????? ??? 900/- ???????? ?? ?? ??????????? ??? ???????? ?? ?????? ??? ????????, ???? ????, ?? ????? ??? ??? ?????? ??? ?? ????? ????? ???? ???? ???? ?? ??? ????? ???? ???? ??? ???????? ????? ??????? ?? ?? ??? 2012 ??? ????? ??????? ?? ???? ?? ???? ?????? ?? ?????? ?? ??? ??? ????????, ??????? ?? ????? ???? ??? ? ??? ?? ?? ?? ?????? ???? ???? ??, ????? ???? ?? ??, ????? ??????? ????? ???? ?? ?? ?? ?????? ???? ?? ?? ????? ???? ?? ????, ????? ??????? ?? ????? ???? ???? ????? ???????? ????? ???? ????? ?? ????? ????? ????? ??? ??????? ?? ????? ?????? ? ???? ??? ????? ???? ???? ?? ??? ?????? ???? ????, ???? ?? ????? ??? ???? ?? ?????? ??? ??, ??? ?????? ?????? ?????? ???? ???? ?? ????? ????? ??? ???? ????? ??? ???? ??? ??????? ?? ??????? ?????? ?? ????? ?? ???? ???????? ?? ?? ???????? ? ???????? ???
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???????? ???? 21 (1) (?) ?????????? 13 ?? 1972 1972 ??????? ??????? ?? ??????? ????? ?????????? ???????? ??? ???????? ??? ??????? ??????? ???? ???? ??? ??????? ?? ?????? ???? ???? ?? ?? ?? ???????? ????? ????? ???? ????? 2/98, ??????? ???, ????????, ???????? ?? ?? ??? ?? ???? ???? ???? ???????? ?? ????? ?????? ?? ????? ???? ???? ?? ?????? ??? ???????? ?? ?? ?????? ???? ?? ?? ???????? ?? ?????? ?? ????? ??????? ?? ??????
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9. Perusal of the ex-parte order of Prescribed Authority as quoted above, demonstrate that petitioner/ tenant has put in appearance in the release proceeding, but on subsequent date he did not appear. accordingly, release order was passed in ex-parte manner by prescribed authority. The application under Order 9 Rule 13 C.p.C. filed by petitioner/ tenant has been rejected by the prescribed authority recording reason in support of the order.
10. It is also material to mention that petitioner/ tenant has not filed any appeal against the ex-parte order of release passed by prescribed authority as well as order rejecting the application under order 9 Rule 1 3 C.P.C.
11. Considering the fact that release application was filed in the year 2013, which was allowed on 07.05.2015, it will not be proper to relegate the petitioner/ tenant to file appeal against the ex-parte order of release passed in the year 2015 rather to decide the mater finally considering the release order passed by the prescribed Authority as well as order rejecting the application under Order 9 Rule 13 C.P.C. passed by Prescribed Authority.
12. On the question of bona-fide need of the landlord, the Apex Court in the case reported in 2025 (3) ADJ 308, Kanahaiya Lal Arya vs. Md. Ehshan & Others has held that the landlord is a best judge to decide which of his property should be vacated for satisfying his particular need and tenant has no role in dictating as to which premises of the landlord should get vacated for his need alleged in the suit for eviction. Paragraph nos.11,15 & 16 of the judgement of Apex Court rendered in Kanahaiya Lal Arya (supra) will be relevant, which are as under: "11. In the case at hand, the appellant-landlord may be having some other properties under tenancy of various persons but once he has decided to get the suit premises vacated for the bona fide need of establishing an ultrasound machine for his two unemployed sons, he cannot be forced to initiate such a proceeding against the other tenants. It is for the appellant-landlord to take a decision in this regard and once he has decided to get the suit premises vacated, no error or illegality could be pointed out in his decision. Secondly, it has come on record by clear finding of the court of first instance that the suit premises is the most suitable accommodation for establishing an ultrasound machine. The reason being that it is situated adjacent to a medical clinic and a pathological centre and is the most appropriate place for establishing any medical machine. Moreover, the appellant-landlord has also proved his capacity to invest in purchasing/establishing an ultrasound machine and that his two sons are unemployed and as such the suit premises is required to establish them in business and to augment the family's income. Therefore, the bona fide need of the appellant-landlord stands duly established. 15. As would be evident from the above compromise, the decree for partial eviction from the premises occupied by the respondents-tenant was partially decreed in Second Appeal No.40/1983 on 31.03.1988 for the bona fide need of the appellant-landlord to establish his brother-in-law. The said need was altogether a different need. The said decree of the year 1988, even if not used for the purpose intended, it would not affect the rights of the appellant- landlord which accrues to him in the year 2001. The need of the appellant-landlord for getting the suit premises vacated for establishing his two sons has to be seen on the date of filing of the suit i.e., 28.11.2001. On the said date, the need of the appellant-landlord stands established. The said need would not get eroded by any earlier decree of eviction of the year 1988. 16. Accordingly, in view of the facts and circumstances of the case, the appellant-landlord has proved his bona fide need for the suit premises. The appeal is allowed and the impugned judgment and order dated 18.08.2022 and 25.09.2006 of the High Court and the First Appellate Court respectively are set aside. The suit of the appellant- landlord stands decreed."
13. Considering the ratio of law laid down by Apex Court in Kanahaiya Lal Arya (Supra) as well as the order passed by Prescribed Authority releasing the shop in question in favour of the landlord, there is no scope for interference under Article 227 of the Constitution of India against the order of release as well as order rejecting the application under Order 9 of Rule 13 C.P.C. passed by the Prescribed Authority in respect to the shop in question.
14. Considering the finding of fact recorded by the prescribed authority, no interference is required against the impugned judgment passed in the proceeding under Section 21 (1) (a) of U.P.Act No.13 of 1972.
15. The instant petition under Article 227 of the Constitution of India is dismissed. However, considering the facts and circumstances of the case, the petitioner/ tenant is granted six months time to vacate the shop in question subject to the following conditions:
(a). Petitioner/ tenant shall file an undertaking before the prescribed authority within period of three weeks from today to the effect that he will handover peaceful possession of the shop in question to the respondent / landlord within period of six months from the date of this judgment.
(b). In the undertaking, petitioner / tenant shall also state that he will not create any third party interest in the shop in question.
(c). Petitioner/ tenant shall pay monthly rent of the sop in question to the landlord regularly till the date of delivery of possession of the shop in question to the landlord as directed above.
(d). In case of default of any of the condition mentioned above, protection granted by this Court shall automatically vacated.
(e). In case shop in question is not vacated as per the undertaking given by the petitioner/ tenant, he shall be liable for contempt.
(Chandra Kumar Rai,J.)
September 25, 2025
PS*
