SUPREME PHARMACY Vs. DISTRICT JUDGE KANPUR

JUDGEMENT

(1.) THIS petition is directed against an order dated 5-2-1982 passed by the learned District Judge, Kanpur allowing a revision and setting aside an order dated 9th of February, 1979 passed by the Rent Control and Eviction Officer. By the Impugned order, the learned District Judge has directed the Rent Control and Eviction Officer to dispose of an application filed by the petitioner no. 2 for allotment of the disputed shop in favour of a newly constituted firm styled as M/s. Supreme Pharmacy afresh, after giving the opportunity of being heard to the landlords arrayed here as respondents nos. 3 to 5.

(2.) THE history of the litigation giving rise to this case goes back to the year 1955 when a suit for partition was filed in respect of some properties including the disputed shop which is shop no. 24/1, the Mall, Kanpur. THE suit was eventually tried by this court as original suit no. 1 of 1965. A receiver was appointed in that suit by the court to manage the properties in suit. THE respondents nos. 3, 4 & 5 are admittedly the co-owners of the properties in suit including the shop. It appears that an application was moved in this court by one of the owners for an order directing the receiver to move an application for the release of the disputed shop of which one B. T. Lalwani was admittedly the tenant, so that after a final decree was passed the landlords might be able to get possession of the same for their own use and occupation. This application was allowed by an order dated 27-2-1974, a true copy of which is annexure-1 to the counter-affidavit filed on behalf of the landlords. This court directed the receiver to move an application for release under section 21 (1) (a) of U. P. Act No. 13 of 1972. In pursuance of this order a release application was filed against the said B. T. Lalwani. For some reason the application made no progress and was still pending in the year 1978 when an application was moved in the name of Sri B. T. Lalwani by Smt. Sunita Bahadur Lalwani (petitioner no. 2 herein) claiming as the wife and holder of power of attorney from Sri B. T. Lalwani purporting to be under rule 10 (6) (a) of the Rules framed under U. P. Act No. 13 of 1972 before the Rent Control and Eviction Officer for an order of allotment of the disputed shop in favour of the said M/s. Supreme Pharmacy.

(3.) IT is pertinent to mention here that neither the Rent Control & Eviction Officer nor even the petitioners considered it necessary or desirable that notice of the application or any sort of intimation for that matter be sent to the receiver or to the respondent nos. 3, 4 and 5. IT is further pertinent to mention that a final decree had in the meantime been passed by this court in the aforesaid suit on 7-9-1978 under which the disputed shop was allotted to the respondent nos. 3, 4 and 5. Be that as it may, the Rent Control and Eviction Officer allowed the application of the petitioners ex parte by an order dated 9-2-1979 holding that the defect pointed out earlier in the previous order dated 26-12-1978 had been removed and that the terms of the new partnership agreement were in order. After making these comments, he accorded permission that Sri Ayodhya Prasad Gupta and Sri Balgovind Jaipuriya may be admitted to the new partnership proposed by Sri B. f. Lalwani.