VIDYAWATI Vs. DISTRICT JUDGE FARRUKHABAD

JUDGEMENT

(1.) S. U. Khan, J. Original petitioner Smt. Vidyawati (since deceased and represented by legal representatives) filed release application under Section 21 of U. P. Act No. 13 of 1972 against Jagdish Chand respondent No. 2 and Girish Chand respondent No. 3 both real brothers. The case set up in the release application was that Jagdish Chand was the tenant in the shop in dispute who had completely shifted his business to another city and had sublet/allowed to be occupied exclusively the shop in dispute by his real brother Girish Chand. In the release application, it was stated that the shop in dispute was bona fidely required for establishing Ghanshyam Saxena married son of the landlady (after the death of his mother Smt. Vidyawati, the original petitioner, he is now petitioner No. 1 ). In the release application Jagdish Chand did not appear. Girish Chand contested the release application by asserting that it was he who was the tenant in the shop in dispute and Jagdish Chand had no concern with the shop in dispute. The release application was registered as Case No. 5 of 1981. The Prescribed Authority Farrukhabad allowed the release application on 10-8-1983 by holding that Jagdish Chand was the tenant and not Girish Chand. Both Jagdish Chand as well as Girish Chand filed appeals before the District Judge. The appeal of Girish Chand was registered as Rent Control Appeal No. 106 of 1983 and that of Jagdish Chand as Rent Control Appeal No. 117 of 1983. Jagdish Chand in his memorandum of appeal clearly stated in para 4 thereof that "because the respondent No. 2 (i. e. Girish Chand) was the tenant of the disputed shop and he was in possession of the disputed shop in his own right. " The main ground taken by Jagdish Chand was ground No. 2 which is quoted below - " (2) Because the Lower Court erred in proceeding ex-parte against the appellant. "

(2.) DISTRICT Judge Farrukhabad decided both the appeals by common judgment dated 30-8-1986. DISTRICT Judge dismissed the appeal of Girish Chand holding that he was not the tenant. However, DISTRICT Judge allowed the appeal of Jagdish Chand only on the ground that he was not served before Prescribed Authority. The appellate Court remanded the matter to the Prescribed Authority for "the decision afresh for the claim of Jagdish Chand and landlady in this case". Girish Chand filed a writ petition in this Court against dismissal of his appeal being writ petition No. 19728 of 1986. The said writ petition was dismissed as abated on 4-5-1995 as landlady respondent in the said writ petition had died and no substitution application within time had been filed. Girish Chand filed a recall application, which was also rejected on 16-10-1995. The said orders have been annexed as Annexures RA 1 and RA 2.

(3.) ACCORDINGLY, writ petition is allowed. Judgment and order passed by District Judge dated 30-8-1986, allowing the appeal No. 117 of 1983 filed by Jagdish Chand is set-aside and judgment and order passed by Prescribed Authority, Farrukhabad dated 10-8-1983 passed in case No. 5 of 1981 is restored. Petition allowed. .