RAM CHANDRA SINGH Vs. MAHENDRA NATH GUPTA

JUDGEMENT

(1.) By means of present writ petition under Article 226 of the Constitution of India, the petitioner-tenant challenges the Order passed by the prescribed authority/VIIIth A.C.M.M., Kanpur Nagar in Misc. Rent Case No. 16/74 of 2001, whereby the application filed by the petitioner under Rule 32 and Section 34 of the U. P. Act No. XIII of 1972, here-in-after referred to as 'the Act' and also for Issue a writ, Order or direction in the nature of mandamus to the prescribed authority to allow the application filed by the petitioner-tenant, referred to above and set aside the Order dated 4th October, 2001 passed In Rent Case No. 92 of 1997.

(2.) Before coming to the facts of the filing of the present writ petition, It is necessary to state that when the matter was heard Sri Manish Kumar Nigam, who has put in appearance on behalf of the respondent, prays that the case may be taken up on Tuesday next i.e. 30th November, 2004. On 6th December, 2004, when the matter was taken up Sri Nigam made a statement that he does not want to file a counter-affidavit and the writ petition itself be finally disposed of at this stage, as the questions involved in the writ petition are questions of law. In this view of the matter, I have heard learned counsel appearing on behalf of the parties on merits as well.

(3.) The facts leading to the filing of present writ petition are that the respondent-landlord filed an application under Section 21 (1) (a) of the Act before the prescribed authority for the release of the accommodation in question on 15th December, 1997, which has been registered as Rent Case No. 92 of 1997. In the aforesaid case, petitioner-tenant has filed written statement and the affidavits were exchanged by the parties before the prescribed authority. It so happened that during the pendency of the release application, wife of the petitioner expired after the continuous illness for a long time and petitioner also suffered from paralytic attack. On 4th October, 2001, the petitioner who was neither in the contact of his counsel, nor was aware about the various dates fixed by the prescribed authority on account of the illness and death of the wife of the petitioner and therefore he could not attend the Court on 4th October, 2001. On 4th October, . 2001, the prescribed authority allowed the application filed by the landlord-respondent under Section 21 (1) (a) of the Act ex parte and the petitioner came to know about the aforesaid ex parte Order on 1st November, 2001. On 2nd November, 2001, the petitioner moved an application along with supporting affidavit for setting aside the said Order dated 4th October, 2001 under Rule 32, Section 34 of the Act, which was registered as Misc. Case No. 16/74 of 2001. The respondent-landlord filed objection to the aforesaid application on 12th April, 2002. Thereafter, the petitioner also filed affidavit of D. K. Srivastava, Advocate sworn in the month of January, 2003 and also rejoinder-affidavit in reply to the said objection. During the pendency of the aforesaid misc. case, the petitioner also filed an appeal under Section 22 of the Act on 31st May, 2002 against the Order dated 4th October, 2001, which has been registered as Rent Appeal No. 262/7 of 2002 for setting aside the ex parte Order dated 4th October, 2001. The aforesaid appeal filed by the petitioner-tenant was dismissed by the appellate authority on 22nd March, 2004 on the ground that the petitioner-tenant has not removed the defect pointed out by office in the appeal, therefore, the appeal No. 262/7 of 2002 was dismissed as defective appeal. The petitioner thereafter moved an application for restoration of the aforesaid rent appeal 262/7 of 2002 supported by an affidavit and also an application under Section 5 of the Limitation Act for condoning of delay in filing the appeal, which was registered as Misc. Case No. 257/74 of 2004. Meanwhile, the respondent-landlord also filed an application under Section 23 of the Act, which was registered as execution case No. 2/23 of 2004 for execution of the ex parte release Order dated 4th October, 2001. On 12th October, 2004, the application for recall under Rule 32. Section 34 of the Act filed by the petitioner-tenant was dismissed by the prescribed authority. On 4th November, 2004-, the petitioner moved an application for adjournment of the Execution Case No. 2/23 of 2004 and also the petitioner filed stay application along with affidavit in Rent Appeal No. 262/7 of 2002 for the stay of the operation of the Order dated 4th October, 2001. In the meanwhile, the prescribed authority allowed the application filed by the landlord-respondent in Execution Case No. 2/23 of 2004 and directed for the Issuance of Dakhalnama for the police possession. Thus, this writ petition.