K.B. AGARWALA Vs. SMT. CHANDRAWATI AND OTHERS

JUDGEMENT

(1.) JUDGEMENT This special appeal directed against the judgment of a learned single Judge of this Court. The brief facts are these: The appellant before us, Sri K.B. Agarwala, is the landlord of premises No. 21, Muir Road, Allahabad. He initiated proceedings under Section 21 of the U. P. Act No. 13 of 1972 against the late Pt. Shiv Charan Lal who was alleged to be the tenant of the said premises. It was alleged that he had left the residence in the said premises and had shifted to Khair in the district of Aligarh. It was alleged that Pt. Shiv Charan Lal had illegally permitted the respondents Nos. 3 and 4 to reside in the said premises. The landlord also averred that he was in personal need of the house in question. The three opposite parties to the application under Section 21, namely, Pt. Shiv Charan Lal as well as the respondents Nos. 3 and 4 took several pleas in defence. An application under Order 11, Rule 1, Civil Procedure Code was moved by Pt. Shiv Charan Lal seeking leave to serve interrogatories on the landlord. The said application was rejected by the Prescribed Authority and an appeal against the order of the Prescribed Authority before the District Judge, Allahabad also did not succeed. Thereafter, Pt. Shiv Charan Lal moved this Court by Civil Misc. Writ Petition No. 1554 of 1973. During the pendency of the said petition Pt. Shiv Charan Lal died on 16-9-73. It may be stated here that in the said writ petition a stay order dated 9th March, 1973, was passed staying proceedings before the Prescribed Authority. After the death of Pt. Shiv Charan Lal Smt. Chandrawati, his widow, who is respondent No. 1 in the special appeal, applied to be brought on the record, in the writ petition as the legal representative of the deceased. The substitution was made when the landlord on 3-4-1974 waived his objection. The writ petition came up for final hearing on 13th February, 1974 and the same was dismissed on an undertaking given by Shri Deokinandan, learned counsel for the landlord, that his client would reply to the interrogatories which were sought to be served on him. The dispute went back to the Prescribed Authority. On 2-3-1974 the landlord, Sri K.B. Agarwala, moved an application, a true copy whereof is annexure 7 to the writ petition. It was prayed that Smt. Chadrawati be brought on record as the legal representative of the deceased Pt. Shiv Charan Lal. In the body of the application circumstances were set out and reasons given as to why the application could not be made earlier. The application was allowed by the Prescribed Authority on 4th May, 1974. Smt. Chandrawati moved an application dated 31st July, 1974, a true copy whereof is Annexure 9 to the writ petition, and it was prayed that the aforesaid order dated 4th May, 1974, be set aside and the substitution application moved on 2nd March, 1974, should be dismissed. The landlord, Sri K.B. Agarwala, filed an objection to this application of Smt. Chandrawati. A true copy of the said objection dated 30th August, 1974, is Annexure 10. By its order dated 6th September, 1974, the Prescribed Authority rejected Smt. Chandrawatis application dated 31st July, 1974. Thereafter, the writ petition from which this special appeal has arisen, was filed by Smt. Chandrawati in this Court. She prayed that the order dated 4th May, 1974, be set aside. She also claimed that the order dated 6th September, 1974, be quashed as the same was based on wrong premises and assumptions. There was a further prayer for a writ or direction in the nature of mandamus directing the landlord, Sri K.B. Agarwala, to abide by the undertaking given by his counsel in the earlier writ petition No. 1554 of 1973. The writ petition was allowed by learned single Judge of this Court and the aforesaid orders dated 4th May, 1974, and 6th September, 1974, were quashed. The learned single Judge held that no notice was issued to Smt. Chandrawati of the substitution application (which is dated 22nd February, 1974, though it was moved on 2nd March, 1974). It was further held that the order dated 4th May, 1974, was passed ex parte without affording an opportunity to the legal representatives to contest the aforesaid application. The application was held to be time barred in view of the provisions of Rule 25 of the Rules framed under the U. P. Act No. 13 of 1972. The learned single Judge also held that the proceedings already stood abated when the aforesaid application dated 22nd February, 1974, was moved on 2nd March, 1974, and that there was no application under Section 3 of the Limitation Act. On these findings, the writ petition was dismissed. Feeling aggrieved the landlord has come up in the instant special appeal against the order of the learned Single Judge and in support of the appeal we have heard Shri Deokinandan and in opposition Shri G.N. Verma has made his submissions.

(2.) LEARNED counsel for the appellant contended that there could be no abatement as Order 22 of the Civil Procedure Code does not apply to the proceedings before the Prescribed Authority under the U. P. Act No. 13 of 1972. He further contended that if an order was passed without issuing notice to the legal representative then such an order could not be said to be bad in law as no vested right of the legal representative was in fringed in the instant case inasmuch as a second application under Section 21 could undoubtedly be moved against the legal representative and the rejection of the first application could not be fatal to the maintainability of the second application. He contended that the provision of Order 22 Rule 9 C. P. C. is a different one inasmuch as after abatement a second suit cannot be filed on the same cause of action. Learned counsel next contended that as there was a stay order from this Court staying proceedings before the Prescribed Authority therefore, the aforesaid substitution application could not be moved before the said stay order stood discharged by the dismissal of the writ petition on 13-2-1974. Lastly, it was contended that Smt. Chandrawati herself chose to come on record by moving an application dated 2nd September, 1974, a true copy whereof is Annexure 5. Learned counsel placed reliance on an unreported decision of this Court dated 20th September, 1974, in Special Appeal No. 153 of 1974, R.C. Garg v. Union of India.

(3.) IN this view of the matter, the legal representative was entitled to say that any application for substitution made beyond the period of one month was hit by the mandatory provision of Section 3 and was, therefore, bound to be rejected. Whether there was an abatement or not is not a material point and did not fall for adjudication. We think, with respect to the learned single Judge, that he should not have raised and gone into that question.