Bhanu Pratap Mishra vs Rakesh Nigam and others

Rakesh Tiwari, J.—Heard learned counsel for the parties and perused the record.

This writ petition has been filed challenging the validity and correctness of the judgment and order dated 09.02.2011 passed by the Prescribed Authority/IInd Additional Judge (Small Causes Court),Kanpur Nagar in Release Case No. 11 of 2007: Rakesh Nigam & others Vs. Smt. Ranno Devi & others by which Application under Section 21 (1) (a) of U.P. Act No. 13 of 1972 of the landlord has been dismissed posting the case on 25.2.2011 for hearing.

The brief facts of the case are that the disputed shop was taken on rent by Late Sri Ram Narain Mishra. The petitioner/Bhanu Pratap Mishra, claims himself to have right over the said shop being son of the deceasedtenant.

The contention of learned counsel for the petitioner is that the aforesaid case was proceeded ex parte against him as he had no knowledge about filing or pendency of the release application before the Prescribed Authority for the reason that neither notice was served upon him nor his brother who was also party in the case was informed about filing or pendency of the release application.

It appears from record that an application was filed on 15.2.2008 before the Prescribed Authority by respondentlandlord for order for publication of notices. It was allowed by the court directing the respondents to take steps for publication in daily newspaper "Kanpur Ujala". As the petitioner did not appear even after publication of notices, the Prescribed Authority by order dated 20.08.2008 directed to proceed exparte against the petitioner. Thereafter, on 05.01.2011, the petitioner filed an application for recall of the order dated 20.08.2008 with the prayer to grant him an opportunity of hearing before deciding the release case no. 11 of 2007.

Relevant paragraph nos. 3, 4, 5 and 6 of the said application are quoted as under:

The respondent also filed objection to the said application on 11.01.2011. Reply to the said objection was also filed by the petitioner on 17.01.2011. The Prescribed Authority vide order dated 09.02.2011 rejected the application for recall moved by the petitioner against which petitioner has come before this Court.

The order reads thus:

The only contention of learned counsel for the petitioner before this Court is that the case no. 11 of 2007 is fixed before the court below on 4.3.2011 for arguments in which he may also be allowed to adopt the pleadings and written statement etc. filed by his brother who is also a tenant of the disputed shop and argue the case as regards his own rights.

Sri P.K. Srivastava, who has filed caveat application in this case has submitted that the Court has rightly observed that the petitioner has not appeared before the Court for more than two years after passing of the orders to proceed exparte as he wanted to delay the proceeding; that the Court has rightly directed to proceed exparte after publication of notice and finding that the service was deemed to be sufficient as such there is no procedural illegality in that order. He has also submitted that from perusal of paragraphs 3 to 6 of recall application relied upon by the petitioner for setting aside the exparte order, it is apparent that the petitioner has not been able to show any basis as to who has informed him about the pendency of case no. 11 of 07 and in what manner he has come to know about the pendency of case on 4.1.2011, as such, cause shown by the petitioner for setting aside the exparte order is baseless and not sufficient.

After hearing learned counsel for the parties, it appears that the petitioner as well as his brother are party in release case no. 11 of 2007. Though the brother of the petitioner appeared and contested the case by filing written statement etc., the petitioner did not appeared before the court despite service of notice being found sufficient; that he has also not shown sufficient cause for non appearance for more than two years after passing of the exparte order and that notice upon one of the cotenant is sufficient upon all all of the tenants.

It is settled law that where the matter of joint tenancy is involved, notice upon one is deemed to have been served upon all. Further more, the Court has proceeded in accordance with law after publication of notice in so far as petitioner is concerned who appeared in the court only after 4.1.2011.

During the course of arguments, learned counsel for the petitioner has confined himself to residual prayer in the writ petition to allow him to argue his case on 4.3.2011 through a counsel by adopting the pleadings in the written statement and evidence etc. of his brother in release case no. 11 of 2007. Learned counsel for the respondent has objection to denovo proceeding but no objection to the said prayer for allowing the petitioner to argue his case on 4.3.2011 or when it is heard finally.

In the circumstances, this writ petition is dismissed in so far as prayer no. 1 for quashing of order dated 09.02.2011 is concerned, so far as prayer no. 2 is concerned, learned counsel for the petitioner has given a statement before the Court that he will only adopt pleadings and written statement etc. of his brother/Chandra Kant Mishra filed in case no. 11 of 07 and hence either the petitioner may himself or through his counsel may argue the case on 4.3.2011 or on any of other date when the case is argued.

Accordingly, petitioner is permitted to argue the case only adopting pleadings in written statement etc. of his brother in case no. 11 of 07 on 04.03.2011. It is made clear that this order would not amount to grant of adjournment to the petitioner on 04.03.2011. The court is at liberty to hear and decide the case tomorrow.

Let a certified copy of this order be issued to the learned counsel for the parties on payment of requisite charges by today.