ABDUL HAFIZ AND 2 OTHERS Vs. AKBAR ALI

JUDGEMENT

(1.) Heard Sri Salil Kumar Rai, learned counsel for the petitioner and Sri Hausihla Prasad Mishra, learned counsel for the respondent.

(2.) The sole ground of challenge of the release orders passed by this Court below is that the release application itself was not entertain able on 12.03.2012 as it was filed before expiry of period of three years as per the proviso to sub Sec. (1) of Sec. 21 of U.P. Act No. 13 of 1972. A brief facts relevant to decide the controversy are that a sale deed has been executed in favour of the plaintiff respondent on 25.09.2010 and they claimed the ownership on the strength of the said sale deed. On 05.09.2011, a notice was served upon the defendants-petitioners bringing to their knowledge the fact of purchase and that the landlord required the premises for her personal need. The fact of default in rent was also mentioned therein. The release application under Sec. 21 (1) (a) was filed on 12.03.2012 which was registered as PA Case No. 8 of 2012. Written statement was filed by the petitioners on 23.08.2012. The specific ground taken in the written statement to contest the release application was as follows:-

(3.) In the replication filed on 11.09.2012, no specific reply was given to that paragraph. On 16.07.2013, affidavit of witness was filed by the petitioners and by that time, the landlord had also led his evidence. The Prescribed Authority had proceeded with the matter and allowed the release application on 06.08.2014. While placing the order of the Prescribed Authority the submission of learned counsel for the petitioner is that the plea with regard to entertainability of the release application was taken at the first stage while filing written statement. The Prescribed Authority, therefore had committed error of law in entertaining and proceedings with the release application on merits. An issue no. 1 was framed regarding entertainability of the release application but no specific finding has been given by the Prescribed Authority. After dealing with the submission of the petitioner, the Prescribed Authority without giving any reason had simply concluded that the release was maintainable under Sec. 21 (1) of U.P. Act No. 13 of 1972. The Appellate Authority has gone ahead in deciding with the objection of the petitioner on the wrong interpretation of judgment of this Court in Mishri Lal and another Vs. 9th Additional District Judge Gorakhapur and others 1992 Vol. II ARC 546. The preposition led down in Mishri Lal (supra) is not at all applicable in the facts and circumstances of the case.