RIZWAN KHAN Vs. ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) Heard Shri M.A. Khan, learned Senior Advocate assisted by Shri Mohd. Aslam Khan, learned counsel for the petitioners, Shri Anurag Narain Srivastava, learned counsel for respondent Nos.3 to 7 and Shri Anuj Kumar Srivastava, learned counsel for respondent No.8. Respondent Nos.1 and 2 are the courts concerned.

(2.) This petition has been filed challenging the order dtd. 30/8/2023 passed by respondent No.1- Additional District Judge, Court No.3, Hardoi in Misc. Civil Appeal No.15 of 2023 (Rizwan Khan and another v. Smt. Nita Singh and others), by means of which the order dtd. 5/8/23 passed in Regular Suit No.251 of 2022 (Rizwan Khan v. Smt. Neeta Singh and others) passed by respondent No.2-Civil Judge (Senior Division), Hardoi has been affirmed.

(3.) Learned counsel for the petitioners submits that shop No.97/15 situated in Mohalla, Line Purwa, Hemgarh Bhawan, Civil Lines, Hardoi was let out to the father of the petitioners Mohd. Abrar Khan by the respondent Nos.3 to 7. After his death, the petitioners are in possession of the said shop and paying the regular rent to respondent Nos.3 to 7 and carrying on the business in the names of M/s. Shahjahanpur Pipe House and Shahjahanpur Pipe Store. Respondent Nos.3 to 7 got a notice dtd. 6/10/2022 issued from respondent No.8 in their name for demolition of the shops in house No.97 on the ground that they are in dilapidated condition, whereas shop of the petitioners is not in dilapidated condition. One of the tenants of the adjacent shop in the house in question, Raja Bux Singh preferred an application to respondent No.8 on the ground that the shop is not in dilapidated condition, therefore, appropriate action may be taken after an inquiry. On which a report was submitted after spot inspection by the Junior Engineer that the shop is not in dilapidated condition and accordingly no action has been taken against him. Whereas, the petitioners were being threatened to demolish the shop and vacate the premises, therefore, the petitioners approached the Civil Court by means of Regular Suit No.251 of 2022 with a prayer not to evict the petitioners except in accordance with law with an application for interim injunction under Order 39, Rule 1 and 2 read with Sec. 151. Initially an interim injunction was granted in favour of the petitioners on 21/10/2022 and the commission was also directed to be issued, but no commission has taken place. In the meantime, after exchange of the pleadings, the application filed under Order XXXIX Rule 1 and 2 read with Sec. 151 CPC was considered and rejected by means of the order dtd. 5/8/2023 without considering that the commission has not taken place and the report submitted in favour of Raja Bux Singh and on the ground that the proceedings for eviction has been instituted by respondent Nos.3 to 7 before the competent authority. The petitioners preferred an appeal against the order dtd. 5/8/2023, which has also been dismissed without considering the aforesaid facts and merely on the ground that the proceedings for eviction have been instituted.