MAHBOOB HASAN Vs. BADRUDDIN

JUDGEMENT

(1.) This writ petition has been filed by the petitioner challenging the order dated 26.8.2013 passed in misc. case no. 5/24 of 2010 Mehboob Hasan Vs. Badruddin.

(2.) The case of the petitioner is that he alongwith his brother Kabul Hasan was the joint tenant of the premises House No. 130/448 Khatikana Babupurwa Kanpur Nagar. Earlier a rent case no. 96 of 1993 Badruddin Vs. Kabool Hasan and others had been filed seeking the release of the tenanted premises. The release application filed by the respondent Badruddin was allowed by the Prescribed Authority by order dated 16.3.1996. Aggrieved the petitioner alongwith Kabool Hasan filed rent appeal No. 64 of 1996 and the appellate court by its judgment dated 18.1.2000 had remanded the case to the Prescribed Authority for fresh decision. On remand the matter was heard again and thereafter the Prescribed Authority dismissed the rent case no. 96 of 1993 by order dated 18.1.2001. Subsequently another rent case no. 5 of 2003 Badruddin Vs. Kabool Hasan was filed which was allowed on 23.7.2005. Kabool Hasan filed rent appeal No. 75 of 2005 Kabool Hasan Vs. Badruddin which was dismissed on 6.1.2009 and aggrieved by the said order Kabool Hasan filed a writ petitoin No. 65744 of 2009, which is stated to be still pending. Thereafter, Badruddin-the landlord has filed an execution case no. 17/23 of 2009.

(3.) According to the petitioner he came to know about the subsequent proceedings only on 19.1.2010 when he approached the landlord for paying him the rent and the landlord provided him the copy of the judgment of the court dated 6.1.2009 passed in rent appeal no. 75 of 2005. This writ petition has been filed by the petitioner with the allegation that in the subsequent proceeding he had not been impleaded as a party although he was a co-tenant with Kabool Hasan and the said proceedings had been initiated by the landlord Badruddin only against Kabool Hasan which was a collusive proceedings. It is further alleged that in the rent appeal no. 75 of 2005 also the petitioner-Mehboob Hasan was deliberately not impleaded as a party and those proceedings were also collusive proceedings. In the writ petition filed by Kabool Hasan challenging the order of the appellate authority in rent appeal no. 75 of 2005 also the petitioner was not impleaded as party. All these proceedings are alleged to have been collusive. It is only at the stage when the execution case no 17/23 of 2009 was filed that the petitioner came to know about the order passed in the rent case no. 5 of 2003 and the order passed in rent appeal no. 75 of 2005. It is at this stage that the petitioner moved the application no. 3 under section 34(i)(g) of U.P. Act No. 13 of 1972 read with Order XXI Rule 97 C.P.C. for setting aside the ex-parte execution proceeding. The petitioner alongwith his application also filed an affidavit stating that he was a joint co-tenant alongwith Kabool Hasan and that in the earlier proceedings i.e. rent case no. 96 of 1993 he was also a party but in the subsequent proceedings he has deliberately not been made a party. The executing court considered the documents on record and by the impugned order dated 26.8.2013 has rejected the application no. 3 filed by the petitioner.