JOGENDRA SINGH BAJAJ Vs. IVTH ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) This writ petition on behalf of three tenants was dismissed for non-prosecution on 23.4.2004 as no one appeared for the petitioners. Restoration application was filed on 18.8.2004. Cause shown in the restoration application is sufficient. Restoration application is allowed. Order dated 23.4.2004 dismissing the writ petition for non-prosecution is set aside. Learned Counsel for both the parties have been heard on merit of the petition.

(2.) It is undisputed that after dismissal of the writ petition for non-prosecution on 23.4.2004 landlord took possession of the property in dispute in August, 2004,

(3.) Writ Petition arises out of eviction/release proceedings initiated by landlord-respondent No. 2, Surendra Kumar Garg (S.K. Garg in short) on the ground of bonafide need under Section 21 of U.P. Act No. 13 of 1972. Release application was registered as P.A. Case No. 43 of 1991 on the file of Prescribed Authority/Civil Judge, Saharanpur. Release application was filed against four tenants i.e. the three petitioners and one Vinod Kumar. In the release application it was stated that the property in dispute which was in the form of four shops alongwith other properties was Joint Hindu Family property of landlord and his brothers, that the members of the Joint Family orally partitioned the joint property amongst themselves and later on a memorandum of partition was also prepared. Thereafter a suit for partition was filed and on the basis of oral partition and memorandum of partition the suit was decreed through compromise. It was further pleaded in the release application that in the partition the four shops alongwith another ad-joining shop and some open portion on the back of the said shops fell in the share of the applicant S.K. Garg who did not get any residential house in partition hence he required the property in dispute for residential purposes and the shop in possession of fourth tenant Vinod Kumar for establishing his son in business. It was also stated that meanwhile landlord was residing on rent of Rs. 650/- per month in another house situate in Mohalla Janak Nagar. The landlord of that house also filed an affidavit to the effect that respondent No. 2 Surendra Kumar Garg was residing as tenant in his house. After partition, intimation thereof was given by respondent No. 2 to all the tenants and they started paying rent to respondent No. 2. The tenancies of the tenants-petitioners started in early 70s during the lifetime of mother of respondent No. 2.