Biswanath Malik vs Munsif Magistrate and Others

Sudhir Narain, J.—The Petitioner has sought a writ of certiorari quashing the plaint of original Suit No. 119 of 1995 Anil Kumar Kesarwani and Anr. v. Biswanath Malik, pending in the Court of Munsif, West Allahabad and commanding Respondent Nos. 3, 4 and 5 to hand over peaceful possession of the property in dispute to him.

The facts, in brief, are that the Petitioner is the owner and landlord of House No. 606A, Khalasi Line, Kydganj, Allahabad. He filed an application for release u/s 21(1)(a) of U.P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) on the allegation that Respondent No. 3 is a tenant and he requires the shop in question. He will open a photography shop after his retirement from the service in June, 1983. Respondent No. 3 is carrying on his Rickshaw business in the ground floor of Building No. 122, P. S. Kydganj, Allahabad in the name and style of M/s. Neelam Bicycle and Heavy Kit on the main road just opposite to the house of the applicant.

This release application was contested by Respondent No. 3. He denied that the Petitioner requires the shop in question bona fide . In Para 11 of the written statement, he stated that his family consists of himself, his wife, his mother, three sons and one daughter. All his sons were shown to be minors.

The Prescribed Authority allowed the release application by order dated 8.12.1986. Respondent No. 3 filed appeal against the said order before the District Judge. The appellate authority allowed the appeal on 9.8.1990. The Petitioner filed Writ Petition No. 404 of 1991 against the said order. The writ petition was allowed on 8.11.1993 and the appellate authority was directed to decide the appeal in accordance with the observation of the Court in its judgment within four months from the date of filing of the certified copy of the judgment. The appellate authority, after remand, heard the appeal on merits and dismissed it by his order dated 5.10.1994. Respondent No. 3 filed writ petition No. 35423 of 1994. This writ petition was dismissed by this Court on 25.11.1994. The Petitioner, thereafter, sought possession of the disputed accommodation.

Respondent Nos. 4 and 5 are sons of Respondent No. 3. They filed Suit No. 119 of 1995 in the Court of Munsif West, Allahabad for declaration that the order passed in P. A. Case No. 128 of 1992 as confirmed by the appellate authority on 5.10.1994 in Appeal No. 4 of 1987 passed against their father are not binding upon them and for injunction restraining the Petitioner from taking possession of the accommodation in question in pursuance of the execution of the release order in that case.

The allegation in the plaint was that they are tenants of the property in question. The tenancy of the shop initially commenced from the time of late Smt. Rani Devi, sister of Plaintiffs'' grandfather, who had established his business. She was issueless. Her husband had pre-deceased her long back. She executed a Will on 2.12.1978 whereby she bequeathed the entire Rickshaw business of the shop in question. They also filed an application for injunction restraining the Petitioner from taking possession of the shop in question. The trial court rejected the application for injunction.

Respondent Nos. 4 and 5 filed a revision against the said order which was allowed on 10th March, 1995 and the case has been remanded to the trial court to decide the matter afresh. It is stated that the injunction application has yet not been disposed of by the trial court. The revisional court, however, directed that Respondent Nos. 3 to 5 shall not be dispossessed till the disposal of the application for injunction. The Petitioner has yet not obtained the possession of the disputed accommodation.

I have heard Sri R. N. Bhalla, learned counsel for the Petitioner, and Sri Satish Chaturvedi, learned counsel for Respondents.

The contents of the plaint and the intrinsic nature of the evidence in the proceedings initiated by Respondent Nos. 4 and 5 indicate that it is nothing but sheer abuse of process of court. In para 6 of the plaint, he stated that Smt. Rani Devi, real sister of Plaintiffs grandfather, made a Will on 2.12.1978 whereby she expressed her last desire that the Plaintiffs shall be the only successors of all her assets, movable and immovable properties. In para 7 of the plaint, it was stated that there has been strained relationship between the mother of the Plaintiffs and Plaintiffs'' fat her which had developed sometimes after the birth of the Plaintiffs. So the Plaintiffs'' mother had been living separately and during the minority of the Plaintiffs looked after the business and also maintained the Plaintiffs from the income of Rickshaw business. In the entire plaint, there is no allegation as to who was paying rent to the landlord-Petitioners.

Respondent No. 3. father of the Plaintiff-Respondents had filed written statement before the Prescribed Authority. In para 11 of the written statement, he had given the age of all of his sons. He stated that his first son was aged about 10 years, second son was aged about 8 years and the third son was aged about 6 years and they were all receiving education. His daughter was aged about one month. He contested the application on the ground that he was carrying on Rickshaw business. The plaint case of the Plaintiff-Respondents is that his mother was carrying on Rickshaw business but it is nowhere shown that she was also paying rent to the landlord. Respondent No. 3 has been contesting the case upto the High Court for the benefit of the Plaintiffs. The suit has been filed only to put a clog on the execution proceedings of the order of the Prescribed Authority and the appellate authority whereby the accommodation in question has been released in favour of the Petitioner.

In Smt. Mahadevi and Ors. v. Civil Judge 1987 (1) ARC 406, it has been held that it is open to the High Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India for quashing the proceedings in a suit where it is nothing but an abuse of the process of the Court.

In Gulab Chandra v. Munsif West Allahabad and Ors. 1988 ACJ 852, wherein a suit was filed on the allegation that they were co-tenants, it was held that where suit is filed with oblique design to obstruct their lawful eviction, the court has a power under Article 226 of the Constitution for quashing the entire proceeding. The suit filed by Respondent Nos. 4 and 5 are on the behest of Respondent No. 3 and is collusive.

In the result the writ petition is allowed. The order passed by Respondent No. 1, dated 10th March, 1995 is hereby quashed and further proceedings in Suit No. 119 of 1995, Anil Kumar Kesarwani and Anr. v. Biswanath Malik, pending in the Court of Munsif West, Allahabad is also quashed. The Petitioner shall be entitled to cost from Respondents Nos. 4 and 5 which I assess at Rs. 2,000.