MATA PRASAD JAISWAL Vs. ASHISH KUMAR SHAH

JUDGEMENT

(1.) This writ petition, under Article 226 of the Constitution of India, challenges the order dated 3rd November, 2004 passed by the Additional District Judge, Court No. 11, Varanasi dismissing a revision filed by the petitioner and the order of the Rent Control and Eviction Officer, Varanasi dated 8th July 2003 (Annexure-8 to the writ petition) whereby the Rent Control and Eviction Officer has rejected the application filed by the petitioner for summoning Smt, Sudha Rani Jaiswal for cross-examination.

(2.) The brief facts are that Smt. Sudha Rani Jaiswal was the owner and landlord of the shop in dispute, Smt. Sudha Rani Jaiswal subsequently transferred the building in which the accommodation in dispute is situated in favour of respondent No. 1, Ashish Kumar Shah. The disputed premises is a shop situate on the ground floor of House No. 47/1 Mohalla Katuapura, Visheshwarganj, Varanasi. The original owner and landlord was Sudha Rani Jaiswal and the original tenant was Satya Narayan Maheshwari. Sri Satya Narayan Maheshwari, the original tenant, died in June 1996 and inherited the tenancy his widow Urmila Maheshwari and his daughter Gayatri Devi. That during his lifetime Sri Satya Narayan Maheshwari surrendered the tenancy and handed over the possession to Smt. Sudha Rani Jaiswal, the then owner and landlord of the shop in question. Smt. Sudha Rani Jaiswal, respondent No. 2 let out the premises in question to the petitioner and executed a rent agreement on 21st September, 1996. It is necessary to mention here that this agreement and rent deed by Smt. Sudha Rani Jaiswal in favour of the petitioner and thereafter accepting the petitioner as tenant, but without any allotment in favour of the petitioner. Under the provisions of the U.P. Act No. 13 of 1972 as would be clear from the tenor of the rent agreement itself which recites that the petitioner would get the accommodation allotted to which the landlord will have no objection. On 18th November, 1998 the petitioner moved an application before the Rent Control and Eviction Officer or allotment of the accommodation in question. Respondent No. 1, Ashish Kumar Shah, moved and application dated 10th November, 1998 for release of the accommodation in question in his favour on the ground that the accommodation in dispute was purchased by him from Sudha Rani Jaiswal sometimes in August 1998 and since the former tenant. Satya Narayan Maheshwari, and after his death his wife Urmila Maheshwari and his daughter Gayatri Devi have left the accommodation on 8th November, 1998, therefore, the accommodation has fallen vacant and is open for allotment/refeae. Pursuant to aforesaid application the Rent Control and Eviction Officer directed the Rent Control Inspector to submit his report who submitted his report on 23rd November, 1998. The Rent Control and Eviction Officer by his order dated 17th May, 2001 declared that the accommodation in question is legally vacant. That after declaring vacancy, the Rent Control and Eviction Officer proceeded to decide the release application, as the landlord has filed an application for release of the accommodation in dispute. The petitioner objected to the maintainability of the release application filed by the landlord on the ground that in view of rent agreement dated 21.1.1996 the landlord or his transferee are barred from filing any release application. As asserted by the petitioner the respondent-landlord obtained a notarized affidavit from Smt. Sudha Rani Jaiswal, the erstwhile owner, dated 19th May, 2001 which is purported to have been executed by Smt. Sudha Rani Jaiswal at Jabalpur and which has been filed by the landlord before the Rent Control and Eviction Officer. The petitioner, therefore, filed an application on 7th September, 2001 that Smt. Sudha Rani Jaiswal may be summoned personally and her specimen signature should be obtained by the Court and the same may be sent for handwriting expert for comparison of the specimen signature with that of on the rent deed dated 21.1.1996. This application was opposed and respondent No. 2 filed an objection, The Rent Control and Eviction Officer by the impugned order dated 8th July, 2003 dismissed the aforesaid application for summoning Smt. Sudha Rani Jaiswal on various grounds and particularly on the ground that since the accommodation has already been declared vacant the copy of rent agreement between Smt. Sudha Rani Jaiswal and the petitioner loses its effect. So far as declaration of vacancy is concerned, from the agreement dated 21st September, 1996 the execution thereof not disputed by the petitioner. It is apparent from the agreement dated 21st September, 1996 that the erstwhile tenant. Maheshwaris, have already left the accommodation and the petitioner is in possession without any allotment order. Aggrieved by the aforesaid order, rejecting the application for summoning Smt. Sudha Rani Jaiswal, the petitioner preferred a revision before the Revisional Authority, respondent No. 1 being Rent Revision No. 4 of 2003. The revisional Court by its order dated 3rd November, 2004 dismissed the revision on the ground that the revision is not maintainable. It is these two orders which have been challenged by the petitioner by means of this writ petition.

(3.) So far as question of maintainability of the revision against the order dismissing the application by the Rent Control and Eviction Officer for summoning Smt. Sudha Rani Jaiswal is concerned it is conceded by the learned Counsel for the petitioner that no revision lies under Section 18 of the Act. Learned Counsel for the petitioner has relied upon a decision of this Court reported in 2004 (1) ARC 362, Ajay Pal Singh v. District Judge, Meerut and Ors., wherein according to learned Counsel for the petitioner this Court has referred the matter for consideration by a Larger Bench by formulating questions in view of the decision of this Court in the case of Jagdish v. District Judge, Kanpur Nagar and Ors., 2002 (1) ARC 327. A perusal of the order passed by learned Judge, relied by learned Counsel for the petitioner, runs as under: