D NATHENIAL Vs. DISTRICT JUDGE KANPUR NAGAR

JUDGEMENT

(1.) S. U. Khan, J. Petitioner is the wife of respondent No. 4. Respondent No. 3 is the landlord of the accommodation in dispute. Respondent No. 3 filed an application for release of the house in dispute on the ground of bona fide need under Section 21 of U. P. Act No. 13 of 1972 against respondent No. 4. The release application was registered as Rent Case No. 18 of 1988 on the file of the Prescribed Authority/additional J. S. C. C. Kanpur Nagar. In the release application it was stated that respondent No. 4 was the tenant of the accommodation in dispute. In the release application respondent No. 4 entered into compromise with landlord respondent No. 3 and admitted the bona fide need of the landlord. Respondent No. 4 also admitted that he had alternative accommodation. In view of the compromise in between respondents 3 and 4, release application was allowed by the Prescribed Authority on 23-9-1988. Thereafter, petitioner, who is wife of respondent No. 4, filed restoration application asserting therein that she was the tenant and further that her husband respondent No. 4 was a drunkard and taking advantage of the said bad habit of her husband, landlord respondent No. 3 got the agreement signed by him. It was further stated that she was not aware of the collusive order dated 23-9-1988, until filing of restoration application which was filed on 24-10-1988. The said application was dismissed in default on 15-12-1989. For recalling the said order petitioner filed another restoration application on 24-1-1990. The said application was rejected by Prescribed Authority on 7-3-90. The revision filed against the said order was dismissed as not maintainable on 14-3-1990, hence this writ petition.

(2.) AGGRIEVED by the orders dated 7-3-1990 and 14-3-1990 the petitioner has approached this Court under Article 226 of the Constitution.

(3.) IN the second restoration application it was stated that on 15-12-1989 son of the petitioner was present in Court and he was told that the case had been adjourned to 16-2-1990. Petitioner in support of second restoration application filed her own affidavit stating therein the said cause of non- representation on 16-12- 1989. The Prescribed Authority disbelieved the affidavit on the ground that the assertion that her son was present on 15-12-1989 and he was given to understand that the case had been adjourned to 16-2-1990 was sworn on personal knowledge and the personal knowledge of the said fact could only be with the son of the petitioner. IN my opinion, the Prescribed Authority took a very technical view of the matter. IN restoration matters technical views are not appreciable. Normally a person who is in possession cannot take the risk of deliberately allowing the restoration application to be dismissed in default. IN my opinion, sufficient explanation for non-representation of the petitioner on 15-12- 1989 had been given and restoration application deserved to be allowed on that ground.