RAMESH CHANDRA Vs. OMPRAKASH RAJPOOT VISHWAKARMA

JUDGEMENT

(1.) This special appeal arises from an order of the learned Single Judge dated 1 December 2015. The learned Single Judge has (i) set aside an order of release of the premises dated 14 July 2014 passed by the Prescribed Authority; (ii) directed the dropping of execution proceedings and in consequence, the appeal filed by the respondent; and (iii) rejected the prayer of the appellants for return of the plaint for fresh presentation.

(2.) Suit No.19 of 2013 was instituted by the appellants against the respondent for an order of eviction from a shop bearing no.32/23-C situated at Bhusauli Tola, Allahabad. The appellants also sought a decree for rent between the period 1 May 2013 to 31 August 2013. The suit was instituted in the Court of the Additional Chief Judicial Magistrate-XII, acting as the Prescribed Authority. Paragraph 3 of the plaint contains an averment that on 3 April 2013, the term of eleven months in respect of the premises had expired and though the plaintiffs had requested the defendant to vacate the shop on the ground that it was required for the need of his son, the defendant was avoiding to do so. Moreover, it was alleged that the defendant was not paying the rent from 1 May 2013. The plaintiffs have also sent a notice to the defendant dated 14 August 2013, demanding the arrears of rent and terminating his tenancy after the expiry of thirty days from the receipt of the notice. The defendant has, it was alleged, refused to accept the notice.

(3.) The record indicates that on 9 December 2013, the proceedings were transferred to the Court of the Additional Chief Judicial Magistrate, Court No.2, from the Court of the Additional Chief Judicial Magistrate, Court No.12, Allahabad. The suit was decreed ex parte on 14 July 2014. On 18 September 2015, the respondent filed an appeal before the District Judge at Allahabad. On 28 September 2015, an application was filed for stay of execution of the decree. The application was rejected on 13 October 2015. The respondent-defendant thereupon, instituted a writ petition, being Writ-C No.61130 of 2015, seeking to challenge the order dated 13 October 2015, declining to stay the execution of the decree. The relief which was sought in the writ petition was in the following terms: