Jagdish Kumar vs Ramesh Chandra Sharma

S.P. Mehrotra, J.—The present writ petition has been filed under Article 226 of the Constitution of India, inter alia, praying for quashing the order dated 492003 (Annexure 6 to the writ petition) passed by the learned District Judge, Kanpur Nagar.

The dispute relates to an accommodation, the details whereof are given in the judgment and order dated 982002 passed by the learned ACMM/Prescribed Authority, Court No. 9, Kanpur Nagar referred to hereinafter. The said accommodation has hereinafter been referred to as �the disputed accommodation�.

From a perusal of the averments in the writ petition and the annexures thereto, it appears that the respondent filed a release application under Section 21(1)(a) of the U.P. Act No. XIII of 1972 (in short �the Act�) against the petitioner for the release of the disputed accommodation.

It further appears that by the judgment and order dated 98 2002 passed by the learned ACMM/Prescribed Authority, Court No. 9, Kanpur Nagar, the said release application was allowed. Thereupon, it appears, the petitioner filed an appeal under Section 22 of the Act, which was registered as Rent Appeal No. 56 of 2002. A copy of the memorandum of the said appeal has been filed as Annexure2 to the writ petition.

It further appears that by the order dated 1822003 passed by the learned District Judge, Kanpur Nagar, the said Rent Appeal No. 56 of 2002 was dismissed in default. Copy of the said order dated 1822003 has been filed as Annexure3 to the writ petition. A perusal of the said order dated 1822003 shows that an adjournment application was filed on 1822003 on behalf of the petitioner. In regard to the said adjournment application, the said order dated 1822003, inter alia, stated as follows:

�Adjournment application was moved but there is no Vakalatnama it is not properly signed�.

Thereafter, it appears that an application dated 2822003/3 32003 was filed on behalf of the petitioner, inter alia, praying for recalling/setting aside the said order dated 182 2003 and restoring the said Rent Appeal No. 56 of 2002 to its original number. The said restoration application was supported by an affidavit of the petitioner sworn on 2822003. It was, inter alia, stated in the said affidavit of the petitioner that 1822003 was fixed for arguments in the said Rent Appeal No. 56 of 2002; and that the petitioner had engaged Shri Vikas Mathur, Advocate as his counsel and the adjournment application had been filed through the clerk of Shri Vikas Mathur; and that as the condition of a near relative of the petitioner had become serious on account of an accident, the petitioner had earlier left for Faizabad to look after the said near relative, and in the circumstances, the petitioner could not reach the Court in time and his Vakalatnama also could not be filed; and that in the circumstances, the said Rent Appeal No. 56 of 2002 was dismissed in default. The said restoration application was registered as Misc. Case No. 220/74 of 2003.

It further appears that the respondent filed objections 49 2003 alongwith counter affidavit, copies whereof have been filed and collectively numbered as Annexure5 to the writ petition.

By the order dated 492003, the learned District Judge, Kanpur Nagar rejected the said restoration application filed on behalf of the petitioner. It was, inter alia, observed in the said order dated 492003 that on the date fixed, neither the petitioner nor his counsel was present; and that the adjournment application, which had been filed did not bear the signature of the counsel; and that the reason for the absence, which had been stated by the petitioner, could not be believed on account of lack of particulars and the same could not be treated to be proper.

Thereafter, the petitioner has filed the present writ petition seeking the reliefs mentioned above.

I have heard Shri S.D. Singh, learned counsel for the petitioner and Shri Pankaj Bhatia, learned counsel for the caveator/respondent and perused the record.

A perusal of the affidavit filed on behalf of the petitioner (Annexure4 to the writ petition) shows that the reasons for the absence of the petitioner on 1822003 as well as regarding there being no Vakalatnama on behalf of the petitioner were stated in paragraph 2 of the said affidavit.

The averments made in the said paragraph 2 of the aforementioned affidavit (Annexure4 to the writ petition) were replied to by the respondent in paragraph 4 of the counter affidavit (Annexure5 to the writ petition). A perusal of the averments made in paragraph 4 of the counter affidavit shows that there was no specific denial of the averments made in paragraph 2 of the said affidavit of the petitioner (Annexure4 to the writ petition) regarding the petitioner having gone to Faizabad to look after his near relative whose condition was serious on account of an accident. The only averment made in paragraph 4 of the counter affidavit of the respondent (Annexure5 to the writ petition) in this regard was that no medical certificate had been filed on behalf of the petitioner.

Again, in paragraph 3 of the said affidavit of the petitioner (Annexure4 to the writ petition), it was, inter alia, stated that there was no deliberate default or negligence on the part of the petitioner, but the mistake was on account of the petitioner having gone outofstation and the signed Vakalatnama having not been given by the petitioner to his counsel.

The averments made in the aforementioned paragraph 3 of the said affidavit of the petitioner (Annexure4 to the writ petition) were replied to by the respondent in paragraph 5 of the said counter affidavit (Annexure5 to the writ petition). A perusal of paragraph 5 of the said counter affidavit shows that there is no specific denial of the said averments made in paragraph 3 of the said affidavit of the petitioner.

The learned District Judge, Kanpur Nagar in the impugned order dated 492003 has not considered the said aspects of the matter. In the circumstances, the writ petition deserves to be allowed, and the said order dated 492003 is liable to be quashed, and the matter is liable to be sent back to the District Judge, Kanpur Nagar (Appellate Authority) for reconsideration of the said aspects.

Shri Pankaj Bhatia, learned counsel for the caveator/respondent states that in order to avoid delay in the matter, this Court may allow the restoration application filed on behalf of the petitioner and direct the Appellate Authority to decide the said Rent Appeal No. 56 of 2002 on merit expeditiously,

The writ petition is allowed. The order dated 492003 is quashed. In view of the statement made by Shri Pankaj Bhatia, learned counsel for the caveator/respondent, the restoration application dated 2822003/332003 filed on behalf of the petitioner is allowed, and the said Rent Appeal No. 56 of 2002 is restored to its original number. The Appellate Authority is directed to decide the Rent Appeal No. 56 of 2002 expeditiously preferably within a period of two months of the filing of the certified copy of this order before the Appellate Authority.

The learned counsel for the parties are agreed that the parties would appear before the learned District Judge, Kanpur Nagar on 1212004.