Hira Lal and others vs Sri Krishna Gupta and another

S.P. Mehrotra, J.—The present application has been filed on behalf of Rakesh Kumar Vishwakarma (Petitioner No. 3 in the writ petition), inter alia, praying for recalling the order dated 28th January, 2004 passed by this Court in Civil Misc. Writ Petition No. 21748 of 1995.

By the said order dated 28th January, 2004, the said writ petition was dismissed as not pressed for the reasons mentioned in the said order dated 28th January, 2004.

It appears that the respondent No. 1 in the writ petition claiming himself to be the landlord of House No. 176, Old Katra, Allahabad (hereinafter referred to as the "disputed accommodation") filed an application under section 21 of the U.P. Act No. XIII of 1972 (in short "the Act"), inter alia, praying for release of the disputed accommodation.

Copy of the said release application has been filed as Annexure No. 1 to the present application.

A perusal of the said release application shows that the said release application was filed by the respondent No. 1 against the petitioner Nos. 1, 2 and 3 as the opposite parties.

The said release application was registered as P.A. Case No. 25 of 1993.

It further appears that by an order dated 1st November, 1993, the said release application was allowed ex parte, and the petitioner Nos. 1, 2 arid 3 were directed to vacate the disputed accommodation within the period mentioned in the said order dated 1st November, 1993.

Copy of the said order dated 1st November, 1993 has been filed as Annexure No. 2 to the writ petition.

It further appears /that thereafter, an application dated 17th March, 1994 was filed on behalf of the petitioners (herein) before the prescribed authority (Additional Civil JudgeI, Allahabad), inter alia, praying for setting aside the said ex parte order dated 1st November, 1993, and restoring the said P.A. Case No. 25 of 1993 to its original number.

Copy of the said restoration application has been filed as Annexure No. 3 to the writ petition.

It further appears that an application for condoning the delay in filing the said restoration application was also filed on behalf of the petitioners (herein) before the Prescribed Authority (Additional Civil JudgeI, Allahabad).

Copy of the said delay condonation application has been filed as Annexure No. 3A to the writ petition.

It further appears that the said restoration application and the said delay condonation application were supported by an affidavit of Rakesh Kumar Vishwakarma (petitioner No. 3applicant in the present application). In paragraph No. 1 of the said affidavit, it was, inter alia, stated by the said Rakesh Kumar Vishwakarma that he was the pairokar for the petitioner No. 1 and petitioner No. 2 (herein) also.

Copy of the said affidavit has been filed as Anneuxre No. 3B to the writ petition.

It further appears that counteraffidavit was filed on behalf of the respondent No. 1 in reply to the aforesaid application filed on behalf of the petitioners.

Copy of the said counteraffidavit has been filed as Annexure No. 4 to the writ petition.

It further appears that thereafter, a rejoinder affidavit, sworn by Hira lal (petitioner) No. 1 herein), was filed in reply to the said counteraffidavit filed on behalf of the respondent No. 1.

Copy of the said rejoinder affidavit has been filed as Annexure No. 5 to the writ petition.

It further appears that by an order dated 26th July, 1995, the said restoration application filed on behalf of the petitioners (herein) was rejected by the Prescribed Authority/1st Additional Civil Judge, Senior Division, Allahabad.

Copy of the said order dated 26th July, 1995 has been filed as Annexure No. 1 to the writ petition.

Thereafter, it appears that the petitioner Nos. 1, 2 and 3 filed the present writ petition.

The affidavit in support of the writ petition was sworn by Hira lal, petitioner No. 1 (herein). It was, inter alia stated in paragraph No. 1 of the said affidavit that the said Hira lal, petitioner No. 1 (herein) was doing parvi on behalf of the petitioner Nos. 2 an 3 in the writ petition. Vakalatnama given by the petitioner Nos. 1 and 2 in favour of Sri Satish Chandra Srivastava, advocate was filed alongwith the said writ petition. Further, separate vakalatnama given by the petitioner No. 3 in favour of the said Sri Satish Chandra Srivastava, advocate was also filed alongwith the said with petition.

Further, stay vacation application alongwith the counteraffidavit was filed on behalf of the respondent No. 1 in the said writ petition.

It further appears that in reply to the said counteraffidavit, rejoinderaffidavit, sworn by the said Hira lal, petitioner No. 1 (herein), was field on behalf of the petitioners. It was, inter alia, stated in paragraph 1 of the said rejoinder affidavit that the said Hira lal, petitioner No. 1 (herein) was doing parvi on behalf of the other petitioners also.

It further appears that an application being Civil Misc. Application No. 11346 of 2004 was filed on behalf of the petitioners, inter alia, praying for dismissing the writ petition as not pressed and for discharging the interim stay order dated 11.8.1995 passed by this Court in the said writ petition.

The said application was supported by an affidavit of the said Hira lal, petitioner No. 1 (herein) sworn on 22nd January, 2004.

An affidavit of Sri Krishna Gupta, (respondent No. 1) sworn on 19th January, 2004 was also filed in support of the said Civil Misc. Application No. 11346 of 2004.

In paragraph 1 of the said affidavit, the said Hira Lal, petitioner No. 1 (herein), inter alia, stated he was doing parvi on behalf of the other petitioners also.

On 28th January, 2004, when the writ petition was taken up before the Cotfrt, Sri Satish Chandra Srivastava, learned Counsel for the petitionersapplicants made statement that the petitioners did not want to press the writ petition, and the same may be dismissed as not pressed.

Having regard to the statement made by Sri Satish Chandra Srivastava, learned Counsel for the petitionersapplicants and keeping in view the averments made in the said Civil Misc. Application No. 11346 of 2004 and its accompanying affidavits, the said writ petition was dismissed as not pressed by the said order dated 28th January, 2004. The interim order dated 11th August, 1995 was discharged.

It was further malde clear by the said order dated 28th January, 2004 that no liberty of being given to the petitioners to file fresh writ petition on the same cause of action.

The present application has now been filed on behalf of the petitioner No. 3/applicant (Rakesh Kumar Vishwakarma), inter alia, making the prayers as mentioned above. It is, inter alia, alleged in the said application that it appears that utilizing the signed papers of the father of the petitioner No. 3applicant (i.e., Hira Laipetitioner No. 1 herein), which had remained unutilized, affidavit of the father of the petitioner No. 3applicant (i.e., Hira Laipetitioner No. 1 herein) was procure in support of the aforesaid application for dismissing the writ petition as not pressed on account of the compromise outside the Court, thus, by playing fraud on the parties as well as the Court, the said order dated 28th January, 2004 was procured from this Court dismissing th& said writ petition as not pressed on the strength of the two affidavits referred to above.

I have heard Sri Avinash Hajela, learned Counsel for the petitioner No. 3applicant and perused the record.

It is noteworthy that the said Hira lal, petitioner No. 1 (herein) is the father of the said Rakesh Kumar Vishwakarma (petitioner No. 3).

From the narration of the facts given above, it is evident that the petitioner No. 3 (Rakesh Kumar Vishwakarrna (as well as the petitioner No. 1 (Hira Lal) were both looking after the case of the petitioners. As noted above, affidavit in support of the restoration application and the delay condonation application was given by the petitioner No. 3 (Rakesh Kumar Vishwakarma) while the rejoinder affidavit in the same matter was given by the said Hira lal (petitioner No. 1).

The affidavit in support of the writ petition was given by the said Hira lal (petitioner No. 1), inter alia, stating that he was also doing pairvi on behalf of the petitioners Nos. 2 and 3. Petitioner No. 3 gave his separate vakalatnama in the said writ petition in favour of the said Sri Satish Chandra Srjvastava, Advocate.

Again, rejoinder affidavit in the said writ petition was filed by the said Hira lal (petitioner No. 1), inter alia, stating that he was doing pairvi on behalf of the other petitioners also.

The affidavit in support of the aforesaid Civil Misc. Application No. 11346 of 2004 was given by the said Hira lal (petitioner No. 1), inter alia, stating that he was doing pairavi on behalf of the other petitioners also.

In view of the aforesaid circumstances, it is evident that the petitioner No. 3applicant (Rakesh Kumar Vishwakarma) was fully aware of the proceedings in the said writ petition. Hira lal (petitioner No. 1) was looking after the case on behalf of the petitioners Nos. 2 and 3 also and was filing affidavits in the said writ petition.

Therefore, the version of the petitioner No. 3applicant in the present application that the affidavit of the said Hira lal in support of the aforesaid Civil Misc. Application No. 11346 of 2004 was obtained by committing fraud, cannot be believed. It is evident that the present application is collusive attempt on behalf of the petitioners to w.iggle out of the compromise, which had been arrived at outside the Court as mentioned in paragraph 5 of the affidavit of the said Hira Laipetitioner No. 1, filed in support of the aforesaid Civil Misc. Application No. 11346 of 2004. The present Civil Misc. Application No. 111245 of 2004 is wholly misconceived and is liable to be rejected.

The present application is accordingly rejected.

Application Rejected,