UBAIDUR REHMAN Vs. DISTRICT JUDGE AND ORS.

JUDGEMENT

(1.) MISAPPREHENSION about role of Courts has rendered of Petitioner a helpless spectator and the order of release passed Under Section 21(1)(a) of Act XIII of 1972 a waste paper. How this happened is quite interesting. But what is surprising is that the Revision Authority succumbed under technicalities resulting the grave injustice to Petitioner. After writ petition against allowing of release application against opposite patty No. 3 was dismissed Petitioner obtained possession on 27th July 1980 is apparent from writ of possession and its execution filed as Annexure 9 with rejoinder -affidavit. On the next day that is on 28th July 1980 Amir Ahmad opposite party No. 2 filed a suit for injunction claiming that he was co -partner of Norm Ahmad opposite party No. 3 but the Petitioner deliberately in collusion with him filed the application against him alone and obtain the release order which was not binding on him. And on 1st August 1980 he and Norm Ahmad forcibly took possession of the shop. Faced with this frustrating situation the Petitioner who appears to be allow abiding citizen filed an application Under Section 16 of Act No. XIII of 1972 which was allowed by the Rent Control and Eviction Officer on 19th December 1980. It was held that claim of Amir Ahmad that he was co -tenant was misconceived. Consequently he found the premises to be vacant which was directed to be released in favor of Petitioner Under Section 16 of the Act. In revision it was held that as Petitioner had obtained possession there could not arise any vacancy Under Section 12 of the Act. According to him the opposite party was an unauthorized occupant who had rendered himself liable for prosecution Under Section 31 of the Act. And the remedy for eviction of such a person lay in civil court.

(2.) ENTIRE claim of opposite party No. 2 is based on his induction as co -partner by opposite party No. 3. Annexure -1 to writ petition is copy of plaint filed in suit for induction. It is conspicuously silent on date when he became co -tenant, whether it was with consent of landlord and if he was a family member of sitting tenant. Law is clear and specified in Section 12 of Act XIII of 1972 that a person inducted as partner in a business if he was not a family member results in vacancy. Therefore, on facts disclosed by Amir Ahmad himself he could not be a co -tenant rather it resulted in rendering even possession of Noon Ahmad as unauthorized. Further from Annexure -3 copy of so called partnership deed it is clear that if any agreement was entered then it was in December 1973 that is much after U.P. Act XIII of 1972 had come in force.

(3.) NEXT question then is whether Petitioner was deprived of those remedies, since possession had been delivered to him Under Section 21 of the Act. There is grave doubt about it. Section 23 does not debar a person from approaching the prescribed authority again for enforcement of the order passed by him. If enforcement is put at naught by the tenant or his associate by re -entering into possession illegally there appears no reason why cannot the landlord approach the prescribed authority and invoke the power conferred on him Under Section 23 of the Act. It would be travesty of justice to ask the landlord to go and file a suit in civil court for eviction of such a person.