RAM CHANDRA Vs. IST ADDL DISTT JUDGE NAINITAL

JUDGEMENT

(1.) RESPONDENT no. 2 Radhey Shyam Gupta is the landlord of an accommodation of which one Bal Mukund who was the predecessaor in interest of petitioners 1 to 4, was the tenant. An application was made by respondent no. 2 for release of the said accommodation under section 21 of the U. P. Urban Bulidings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as U. P. Act XIII of 1972) on the ground that he needed it bonafide for his own use. This application was contested by Bal Mukund but was allowed by the Prescribed Authority. On an appeal filed by Bal Mukund however, the order of the Prescribed Authority was set aside and the application for release was dismissed. RESPONDENT no. 2 challenged the aforesaid order before this Court in writ petition no. 1285 of 1977. During the pendency of the aforesaid writ petition Bal Mukund died some times in April, 1978. An application was made by respondent no. 2 who was the petitioner in that writ petition to substitute the petitioners of the present writ petition as legal representatives of the deceased Bal Mukund. This application was allowed. Subsequently the writ petition itself was allowed on 3rd August 1979. The appellate order dismissing the release application was quashed and the appellate court was directed to dispose of the release application afresh in accordance with law in the light of the observations made in the judgment allowing the writ petition. On 17th March, 1980 an application was made by present petitioner before respondent no. 1 for substituting their names in place of the deceased Bal Mukund. Another application deems to have been subsequently made by respondent no. 2 for abating the appeal on the ground that no application had been made by the petitioners to get themselves substituted in place of Bal Mukund within one month of the death of Bal Mukund in April, 1978 as contemplated by Rule 25 of the Rules framed under the aforesaid Act. By an order dated 27th March, 1980 respondent no. 1 dismissed the application made by the petitioners for substitution in default and directed the appeal to have abated. An application was made by the petitioners for setting aside that order which was, however, dismissed on 4th August, 1981. A certified copy of the order dated 4th August, 1981 has been filed today. It indicates that the said application was dismissed holding that the appeal having been ordered to have abated an application for review was not maintainable.

(2.) IT has been urged by counsel for the petitioner that since the petitioners had already been substituted as legal representatives of Bal Mukund in writ petition no. 1285 of 1977 and since respondent no. 1 was directed by this Court to decide the appeal afresh it was indeed not necessary at all to make by any fresh application for substitution before respondent no. 1 and the view taken by the said respondent in the impugned order suffers from a manifest error of law. For the respondent no. 2 on the other hand it has been urged by his counsel relying on the decision of a Full Bench of this Court in Udai Bhan Singh v. Board of Revenue, AIR 1974 All. 202 that a writ petition is not a continuation of the proceeding in which the order which has been impugned in the writ petition was passed and consequently the order passed in the writ petition substituing the legal representatives of the deceased Bal Mukund could not ensure to the benefit of the petitioners in the appeal which had been filed by the deceased Bal Mukund against the order of the Prescribed Authority.

(3.) IN the result, the writ petition succeeds and is allowed and the order dated 27th March, 1980 as well as the order dated 4th August, 1981 passed by the respondent no. 1 is quashed. The respondent no. 1 is directed to bring on record the present petitioners as appellants in place of the deceased Bal Mukund and decide the appeal in accordance with the directions contained in the order dated 3rd August, 1979, passed by this Court in writ petition no. 1285 of 1977 as far as possible within two months from the date on which this order is communicated to him or its certified copy is filed before him by either party, whichever is earlier. IN the circumstances of the case, however, the parties shall bear their own costs. Petition allowed.