PRADEEP KUMAR Vs. MOHD SAIFUL EZAZ ALAM KHAN

JUDGEMENT

(1.) THIS appeal is arising out of an order dated 14th December, 2009 passed by the learned Single Judge in Civil Misc. Writ Petition No. 3324 of 2009 (Pradeep Kumar v. Mohd. Saiful Ezaz Alam Khan and another).

(2.) THE fact remains that the appellant, the petitioner in the writ petition, happens to be a tenant of a shop situated in Mohalla Bhadwarganj, (Dhawan Book Depo) Station Road, Qasba Ujhani, District Budaun, of which the boundaries are that towards East- Government Road, West- Shop Rajiv Medical Store, North- Railway Road and South- Shop Redgal Photo Studio, which has got a dimension of 12Ft. x 7.5 Ft. On the upper storey of the shop, in which the appellant is a tenant, there is a vacant room, which belongs to the landlords-respondent Nos. 1 and 2. It has got a dimension of 20 Ft. x 10.5 Ft. THE dimension of the room on the upper storey is bigger than the dimension of the shop of the appellant on account of the fact that for constructing the room on the upper storey the balcony was also used. Concealing the dimensions of the room upon the upper storey of the shop, in which the appellant is a tenant and other accommodations belonging to the respondents' mother Smt. Nighat Fatima, an application was filed by the respondents for the ejectment of the appellant from the shop in dispute under Section 21(1) (a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) (hereinafter in short called as the 'Act'), which was numbered as R.C.C. No. 1 of 2001. THE application was allowed by the Prescribed Authority vide order dated 2nd January, 2008, against which the appellant filed a rent appeal, being Rent Appeal No. 12 of 2008, before the appellate authority under Section 22 of the Act. When the appeal was pending, the appellant came to the knowledge that the respondents had concealed the existence of several accommodations in which they could open their shop for the sale of the photostat copies machine, computer, etc. THE appellant further came to the knowledge that the mother of the respondents Smt. Nighat Fatima has also been shown to be the owner of one big accommodation, which is to the south of the premises, in which the appellant happens to be a tenant. He further knew that in the name of a sister of the respondents, namely Wasim Nighat, who was a widow and was a teacher in Asarfi Devi Nagar Palika Kanya Inter College, Ujhani, Budaun, a land was purchased by the respondent Nos. 1 and 2 and on the said land two shutters' shops were constructed when the appeal itself was pending before the appropriate authority. After coming to know aforesaid facts, the appellant subsequently filed an application, being numbered as 28 Ga, for the admission of some evidence as an additional evidence, to which a reply was also filed on behalf of the respondent Nos. 1 and 2 and this was numbered as 39 Ga. THE appellant also filed an application for adducing some additional evidence, which was numbered as paper No. 51 Ga. THE appellant also filed a list of evidence, which was numbered as paper No. 53 Ga. A reply to the appellant's application numbered as 51 Ga for adducing additional evidence was also filed on behalf of the respondent Nos. 1 and 2, to which a replication was also filed by the appellant. THE appellant also filed an application for issuing a commission in order to ascertain the dimensions of the room, which exists on the upper storey of the shop, in which the appellant is a tenant, and also for inspecting a shop, which apparently belongs to the respondent Nos. 1 and 2 but has been cleverly shown to be of the mother of the respondent Nos. 1 and 2, Smt. Nighat Fatima. A reply to the appellant's application for issuing a commission was filed on behalf of the respondent Nos. 1 and 2, which was numbered as paper No. 44 Ga, against which a replication was also filed by the appellant, which was numbered as paper No. 49 Ga. In short, the appellant's case has been that he had no knowledge of the fact earlier that there were other shops belonging to the respondent Nos. 1 and 2, which were in vacant position and further they were having substantial dimensions in which the respondent Nos. 1 and 2 could have opened their shops for the sale of photostat copies machine, computer etc. and thus, there was no bona fide need of the respondent Nos. 1 and 2. Even if the affidavit of the appellant was admitted as an evidence then the case of the appellant would have been fully proved and it would have been clear that the respondent Nos. 1 and 2 had absolutely no bona fide need and they purposely concealed the existence of certain accommodations, which were erroneously and cleverly shown to be belonging to their mother or their sister. THE appellant earlier had absolutely no knowledge about the existence of the other accommodations with the respondent Nos. 1 and 2 and further the accommodations in regard to the shop, which existed in the name of the sister of the respondent Nos. 1 and 2, were constructed after the decision by the Prescribed Authority. If an inspection would have been done by the Amin Commissioner then everything would have been clear. However, the appellate Court vide order dated 14th January, 2009 held that the question as to whether the additional evidence could be filed or not and the inspection of the accommodations in possession of the respondent Nos. 1 and 2 by the Amin Commissioner could be done, will be decided at the time of hearing of the appeal itself. According to the appellant, the view of the appellate authority is absolutely erroneous. It was necessary for the appellate authority to have obtained a report in regard to the existence of all the accommodations belonging to the respondent Nos. 1 and 2 before hearing and decision of the appeal. If a commission is issued after hearing of the appeal and if it is found that the respondent Nos. 1 and 2 are in possession of additional accommodations then it would be of no use to the appellant. In such circumstances, the Commission has to be issued by appellate authority before hearing the appeal filed by the appellant. It was also necessary for the admission of the additional evidence before hearing of the appeal. THE admission of the additional evidence could not wait till the hearing is done. After hearing was done then the additional evidence, which the appellant wanted to lead as additional evidence, would be of no utility. In such circumstances, it was necessary for the appellate authority to consider as to whether the additional evidence was to be led and admitted before hearing of the appeal. THE appellate authority thus erred in not considering the same. It was also necessary for the appellate Court to know the actual accommodations available with the respondent Nos. 1 and 2 after getting a report from the Amin Commissioner before hearing and decision of the appeal. Till this date the appeal has not been heard and decided and it is still pending.

(3.) MR. S.R. Pandey, learned Counsel appearing for the respondents- landlords, has raised a preliminary objection with regard to maintainability of the special appeal. He submitted that the present special appeal is not maintainable in view of the provisions of Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 (hereinafter in short called as the 'Rules of the Court'). There is also a office report to the effect that the appeal is not maintainable. In support of his contentions, MR. Pandey has relied upon various judgments Sadarshan Singh Bedi v. Additional District Magistrate/Rent Control and Eviction Officer, Varanasi and others, 1993 (2) AWC 916; Vajara Yojna Seed Farm, Kalyanpur (M/s.) and others v. Presiding Officer, Labour Court-II, U.P, Kanpur and another, 2003 (1) UPLBEC 496 : 2003 (1) ESC 492; Hasib Ahamad v. State of U. P. and others, 2008 (6) ADJ 757 and Sheet Gupta v. State of U.P. and others, 2010 (1) ADJ 1 (FB).