SRI GANESH PRASAD Vs. SRI GANESH PRASAD

JUDGEMENT

(1.) THE dispute giving rise to this Special Appeal relates to a house. It belonged to one Dharam Deo Agarwal. It was let out to Jagdish Saran Rastogi, respondent no. 7. The appellant Ganesh Prasad purchased the house from Sri Dharam Deo Agarwal on 29-12-1970. Thereafter, he made an application under Section 3 of the U. P. (Temporary) Con trol of Rent and Eviction Act, 1947, for permission to file a suit against respon dent No. 7. The necessary permission was granted on 4-5-1971. It was to be opera tive after thirty days. The appellant, however, filed a suit for ejectment of respondent No. 7 on 6- 5-1971. The parties entered into a compromise on 12-5-1971 and the same day a decree for ejectment was passed on its basis. The decree was put in execution on 21-5-1971 and the appellant obtained possession through the Court Amin on 24-5-1971. Thereafter, an objection was filed by Sri Badri Pra sad Tandon, Manager, Thakur Prasad Badri Prasad Junior Girls High School, Moradabad, respondent No. 5, under Order XXI, Rule 100 of the Code of Civil Procedure on the allegation that the house was occupied by the school in its own right and since it was not a party to the decree in execution of which it was dispossessed, it was entitled to be restored to possession over the house. This objection was allowed. Consequent ly the appellant instituted a suit under Order XXI, Rule 103 of the Code of Civil Procedure which is said to be still pend ing. Simultaneously an application has also been made by Ashok Kumar Tan don, Manager of the School under Sec tion 145 of the Code of Criminal Proce dure, on the allegation that the school had been in possession on 24-5-1971 when it was forcibly and wrongfully dispos sessed in execution of a de cree against respondent No. 7 to which it was not a party. On being satis fied that a dispute concerning the house, likely to cause breach of the peace, exist ed, the Magistrate concerned passed a preliminary order on 28-5-1971 and sub sequently made a reference under Sec tion 146 of the Code of Criminal Proce dure to the civil court of competent ju risdiction to decide the question as to which of the parties was in possession over the house on the relevant date. The reference came up before the Munsif, Moradabad. Before the Munsif the case set up on behalf of the appellant was that the school was only a licensee of Jagdish Saran Rastogi, respondent No. 7 and was, therefore, rightly ejected in execution of the decree for ejectment against the said respondent. On this alle gation it was pleaded on behalf of the appellant that the school had not been forcibly and wrongfully dispossessed. Apart from the plea that it had been forcibly and wrongfully dispossessed, it was also pleaded on behalf of the school that the decree in execution of which it was dispossessed was void inasmuch as the house in dispute was covered by the provisions of U. P. (Temporary) Control of Rent and Eviction Act, 1947 and on the date of the decree none of the grounds contemplated by Section 3 of the said Act on the basis of which the suit for ejectment against the tenant could be decreed existed. It was urged that since the permission granted under Sec tion 3 was to be operative after 30 days of 4-5-1971 the date on which the order granting the permission was passed, the decree as passed on 12-5-1971 was illegal. This plea found favour with the Munsif and on the finding that the entire pro ceedings culminating in the compromise decree of 12-5-1971 were null and void, he held that the school was dispossessed forcibly and wrongfully within two months prior to the date of the prelimi nary order. The Munsif recorded the aforesaid finding by his order dated 1-10-1971. On receipt of the finding the Addi tional City Magistrate passed an order on 7-10-1971 to the effect that the house in dispute may be delivered to the school through Badri Prasad, Manager. The ap pellant filed a revision against the order of the Additional City Magistrate which was dismissed by the 1st Civil & Sessions Judge, Moradabad on 24-11-1971. Ag grieved he instituted a writ petition in this Court with a prayer to quash the orders passed in the proceedings. Under Section 145 of the Code of Criminal Pro cedure. The writ petition was dismissed by a learned Single Judge of this Court on 3-12-1973 on the ground that the peti tioner had an alternative remedy by way of a suit for possession and since he had already filed a suit which was pend ing, it was not a fit case for interference under Article 226 of the Constitution. It is against this order that the present spe cial appeal has been filed by Ganesh Prasad.

(2.) IT was urged by learned coun sel for the appellant that the writ peti tion not haying been dismissed summa rily but having been admitted, the learn ed Single Judge was not right in dismiss ing it on the date of the final hearing on the ground that the appellant had an alternative remedy. Reliance was placed on the case of L. Hirday Narain v. In come-tax Officer, Bareilly, AIR 1971 SC 33. Keeping in view the peculiar facts of the instant case, namely, that the ap pellant had already obtained a decree for ejectment of Jagdish Saran Rastogi, respondent No. 7 and his case as set up in proceedings under Section 145 of the Code of Criminal Procedure, was, that the school was a licensee of Jagdish Saran Rastogi and the further fact that the Munsif deciding the reference had come to the conclusion that the school had been forcibly and wrongfully dis possessed only on the ground that the decree passed in favour of the appellant and against Jagdish Saran Rastogi, was null and void, we are of opinion that the point raised in the writ petition before this Court deserved to be decided on merits.

(3.) IN our opinion, the tests laid down above in respect of the powers of an executing court to find out as to whe ther the decree, under execution is a nullity, can be applied in respect of any other court which is called upon to record a similar finding. Applying those tests to the facts of the instant case it would be seen that the decree which was passed itself did not on the face of it disclose any material on the basis of which it may be held that the court pass ing the decree was satisfied with regard to the existence of one of the statutory grounds for eviction contained in Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947. It had, therefore, to be decided on the basis of the original record whether there was any material furnishing a foundation for passing a decree for ejectment. Copies of the plaint and of the compromise ap plication of the aforesaid suit are on the record of the writ petition. In paragraph 5 of the plaint it was stated that