SHANTI DEVI Vs. CIVIL JUDGE ALIASSDALIAS MOHANLALGANJ LUCKNOW

JUDGEMENT

(1.) K. S. Rakhra, J. This is a petition under Article 226 of the Constitution of India for quashing of the order dated 15-2-2003 (Annexure No. 1) and the order dated 12-10-1999 (Annexure No. 5) to the writ petition passed by Civil Judge, (Senior Division), Mohanlal Ganj, Lucknow and 1st Additional Judge, SCC/prescribed Authority, Lucknow, respectively and also for a direction to the opposite parties to restore, the possession of the house in dispute to the petitioners.

(2.) I have heard Shri Anoop Kumar, Advocate for the petitioners and Shri D. R. Tripathi, for opposite party No. 2. No one responds for opposite party No. 3 who is only a proforma party. Counter affidavit, supplementary counter affidavit and rejoinder affidavit and supplementary rejoinder affidavit have been perused. The facts as appeared from the contention of the parties and submission of the learned Counsel for the parties are that house No. 88/15, Juriyan Tola, Sunder Bagh, Lucknow was the property of one Kasi Prasad in which opposite party No. 2 was in possession on part as a tenant. On 18-11-1998, Kasi Prasad sold this house to opposite party No. 2 and the sale deed was registered on 10-12-1998. In order to accommodate for sometime Kasi Prasad, who was living in a portion of that house, he was accommodated by opposite party No. 2 by creation of a short term licence in accordance with the provisions of Section 2-A (5) and (6) of U. P. Act XIII of 1972. The licence so created on 10-12-1998 was for one month but Kasi Prasad could not vacate the premises till his death on 5-1-1999. Opposite Party No. 2 then made an application before the Prescribed Authority on 20-1-1999 under Section 2-A (5) and (6) of the said Act for an order of eviction against Purshottam, who was impleaded as opposite party as he was shown to be the nephew of Kasi Prasad and he was in possession of house. On 12th October, 1999 the Prescribed Authority allowed the application of opposite party No. 2 in P. A. Case No. 8 of 1999 and directed Purshottam Das Gupta to vacate the premises within a month of the passing of the order. The premises was not vacated, and on 27th November, 1999, opposite party No. 2 further made another application under Section 23 of the said Act for enforcement of the order dated 10-12-1999, (a copy of which is Annexure No. 6 of the writ petition ). This application was also made against Purushottam Das Gupta. On 11-5-2000, the Prescribed Authority in P. A. Case No. 26 of 1999 passed an order for eviction of the occupant and delivery of the possession to opposite party No. 2. In compliance with this order, on 21-5-2000 the possession of the property was delivered to opposite party No. 2 as per report of P. S. Qaiserbagh (Annexure No. 14 of the writ petition ). This report stated that the possession of the property was delivered to opposite party No. 2 from Shanti Jaiswal so called wife of Kasi Prasad Gupta. On 22-5-2000, an application was moved by the petitioners No. 2 to 5 before the Prescribed Authority for recalling of the order dated 12-10-1999 (Annexure No. 7 is the copy of the said application) alongwith it and on the same day, another application was moved by all of them (Annexure No. 8) for restoration of the possession to the said petitioners.

(3.) NOW, the present writ petition has been filed for the same relief on 20-3-2003. Learned Counsel for the opposite party No. 2 has raised a preliminary objection that on the same subject successive writ petitions are not maintainable. He has further argued that the petitioners have no locus standi and they are not related to Kasi Prasad and that even Kasi Prasad was given only one month short term licence under the provisions of U. P. Act 13 of 1972 and since Kasi Prasad had already sold out the premises in question to opposite party No. 2, the petitioners are not entitled to get any relief. It is also argued by the learned Counsel for the opposite party No. 2 that the petitioners have already filed civil suit challenging the right and title of opposite party No. 2 as well as for cancellation of the sale deed executed by Kasi Prasad on 10-12-1998. Learned Counsel for the petitioners on the other hand contended that the report of P. S. Qaiserbagh shows that the petitioner No. 1 was dispossessed from the premises in question on 11-5-2000 and therefore, in proceeding under Section 23 of the Act initiated on the application of opposite party No. 2, she ought to have been impleaded as party. It was argued that since she was not impleaded as party in the said case, her interest has been prejudiced. Further, it has been argued by the learned Counsel for the petitioners that writ petition No. 1424 (M/s) of 2000 was filed by Shanti Devi alone and therefore, remaining petitioners No. 2 to 5 still have right to challenge these orders dated 11- 5-2000 and 12-10-1999 passed by the Prescribed Authority through the present writ petition.