OM PRAKASH Vs. II ADDITIONAL DISTRICT JUDGE MORADABAD

JUDGEMENT

(1.) I have heard the learned counsel for the parties. The controversy relates to House No. 430, Civil Lines, Unnao of which the petitioner A. N. Nigam, Advocate is the owner. The petitioner sought release of this house under section 16 of the U. P. Act XIII of 1972 and it appears it was released in his favour under order of the District Judge, Unnao dated 1-2-1974 on the ground that it was needed by the petitioner for his own occupation and use. It appears that on the basis of a complaint that the petitioner after having the premises got released, had illegally let it out to other persons. An inquiry was made and the order of release was cancelled and the premises were allotted in favour of respondent Chandrapal on 18-12-1978. At that time Chandrapal was a Member of the State Legislature. The petitioner was required to hand over possession of the premises to the allottee Chandra Pal respondent no. 5 in the present writ petition.

(2.) FACED with the order of cancellation of the release and the allotment of the premises in favour of respondent Chandra Pal, the petitioner filed Civil Suit No. 209 of 1978. Copy of the plaint of that suit is filed as Annexure 1 to the writ petition. Validity of the order of cancellation of the release and the order of allotment was challenged and relief of permanent injunction was sought restraining defendant no. 1 and defendant no. 2, the District Magistrate, Unnao and Rent Control and Eviction Officer, Unnao respectively from enforcing the order of allotment of taking possession of the premises on the basis of the said allotment order. The suit was filed on 20-12-1978.

(3.) IN the present case, as is clear from the above, the District Judge by the impugned order remanded the matter to the learned Munsif for reconsideration and a decision afresh after giving opportunity to the parties to lead evidence on the question whether the revisionist petitioner had obtained possession prior or subsequent to the passing of the temporary injunction on 21-12-1978. This inquiry was directed to be made along with the proceedings under Order 39, rule 2 (3) of the Code of Civil Procedure. This order was passed on the basis that the learned Munsif had not recorded any positive finding on this point and made observations merely on the basis of probabilities without inviting evidence of the parties. This position seems to be correct on a careful reading of the order of the learned Munsif which was not challenged before the District Judge. While it may be true that the landlord would not have delivered the possession of his own in pursuance of the allotment order, nevertheless the respondent could proceed to take possession of his own. If the respondent took possession in an unauthorised way on 23-12-1978 as is the case of the landlord petitioner, the possibility of the respondent taking possession likewise on 19-12-1978 could not be ruled out. Taking of possession whether on 19-12-1978 or 23-12-1978 was, obviously, not in accordance with the procedure laid down under the Rules because even after the allotment, the possession was required to be delivered by the landlord and on his refusal to do so, the allottee can be put in possession by the Rent Control authorities. What is directly relevant, however, for the purposes of present controversy is whether the respondent had taken possession of his own prior or subsequent to 21-12-1978 when the temporary injunction was initially issued. On this question of fact, no positive finding was recorded by the learned Munsif and, in any case, not after inviting evidence on the point. Such evidence necessarily will require to be given in proceedings under Order 39, rule 2 (3) of the Code of Civil Procedure. Accordingly, the impugned order of the District Judge cannot be said to be bad in law and having been passed without jurisdiction. It appears that the jurisdiction of learned Munsif to direct dispossession of the respondent was questioned before the District Judge and that provided adequate basis to entertain the revision and pass the order. The impugned order of the District Judge, to my mind, cannot be said to be illegal having been passed in exercise of jurisdiction not vested in him. No case has, as such, been made out for interference by this Court under Article 226 of the Constitution.