DWARIKA NATH Vs. ADDL. DISTRICT JUDGE

JUDGEMENT

(1.) THE Judgment and order dated 27 -9 -1980 at Annexure No. 18 to the writ petition is the subject -matter of challenge in the present writ petition. The tenant has filed the present writ petition contending inter alia that the respondent No. 3 is the landlord in respect of the disputed premises who is a big landlord of Lalitpur. The shop room being the tenancy in dispute was rented to Kamta Prasad and Hardeo Prasad on 1 -1 -1948. The landlord Chiman Lal filed first release application under Section 12(2) of the U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) on 21 -8 -1972 which was rejected on 16 -6 -1973 giving rise to R.C. Appeal No. 17 of 1973 filed by the landlord. The present petitioner Dwarika Nath filed allotment application on 19 -8 -1974 and landlord Chiman Lal filed application for release, order was passed on 2 -3 -1976 allotting the shop to the petitioner Dwarika Nath who took possession in terms of such allotment on 30 -3 -1976. Three appeals were filed, being Appeal No. 2 of 1976 by the landlord, Appeal No. 5 of 1976 by the prospective allottee, Chintamani against the allotment order and Appeal No. 4 of 1976 by Kamta Prasad.

(2.) IT is contended that by order dated 2 -2 -1977, the said appeals were disposed of and the case was remanded for hearing of allotment application. Landlord Chiman Lal filed another release application on 16 -7 -1977. By an ex -parte order dated 23 -2 -1978 both the matters, remanded and new application for release, have been heard and disposed of by order dated 22 -3 -1978, the petitioner's Revision No. 3 of 1978 was allowed remanding the case to the trial Court. Writ Petition No. 5687 of 1978 filed by the landlord against the order dated 22 -3 -1978 was disposed of on 27 -7 -1978.

(3.) THE contention of the petitioner was based on three points. The first point argued was that the power under Section 115 of the Code of Civil Procedure and as such the impugned order could not direct release and at best there could have been a remand. In support of such contention reference was made to the case of Arun Kumar v. District Judge, 1983 (2) ARC 551 and Smt. Angoori Devi v. Additional District Judge, 1983 (2) ARC 533, the case of Chhidda Singh v. Ist Additional District Judge, Mathura and others, 1979 ARC 47, the case of Ram Chandra Gupta v. IVth Additional District Judge, Allahabad and others, 1979 ARC 222 and the case of Dr. Deepak Kumar v. District Judge : 1986(1) ARC 422. Reference was also made to the case of Mohd. Tanvir v. Special District Judge and others, 1990(1) ARC 445.