Jogendra Singh and Another vs Upper District Judge, Court No. 4 and Another

Rakesh Tiwari, J.—Heard Sri Anil Sharma, counsel for the Petitioner, Sri J.P.S. Chauhan appearing for caveator Respondent No. 2 and perused the record.

This petition is directed against order dated 27.11.2010 passed by Additional District Judge, Court No. 4, Bijnor in Appeal No. 11 of 2009, by which application filed by landlord Respondent No. 2 seeking amendment in the release application, has been allowed.

The landlord Respondent moved an application paper No. 43-Ka on 30.10.2010 at the appellate stage praying for amendment in the release application on the ground of subsequent event that an accident had taken place on 2.10.2010 during pendency of the appeal in which daughter of the landlord Respondent died and his son and daughter-in-law received serious injuries who were being treated at Noida, as such looking into the age and mental condition of the landlord as well as the fact that it is not possible for him in these circumstances to do business at Kotdwar outside Najijabad and also in view of the fact that SLP No. 22228 of 2008, Garhwal Steel Coporation and Ors. v. Ravindra Kumar Agrawal, has been dismissed providing nine months time to the brother of Respondent No. 2 i.e. Ravindra Kumar Agrawal for vacating the said premises where he was doing business. With these averments, paragraph No. 7-A was sought to be added in the release application in the following manner:

It may be stated here that the Prescribed Authority has already decided release application in favour of the landlord Respondent considering the question of his bona fide need and comparative hardships by judgment and order dated 29.9.2009, against which the tenant Petitioner had preferred appeal No. 11 of 2009, Jogendra Singh v. Sunil Kumar and Ors. and it was at that stage that application for amendment in the release application was moved.

The appellate Court by the impugned order dated 27.1.2011 has allowed the application paper No. 43-Ka on the ground that in view of changed circumstances during pendency of the appeal, the amendment deserved to be allowed as the said amendment would not change nature of the dispute. The appellate Court has decided the application thus:

Counsel for the Petitioner has relied upon Order VI Rule 17 read with Rule 22-D of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972. Rule 22-E of the aforesaid Rules, is thus:

Power under the Code of Civil Procedure, 1908 (Section 34(1) (g).- The District Magistrate, the Prescribed Authority or the Appellate Authority shall, for the purposes of holding any inquiry or hearing any appeal or revision under the Act, shall have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908, when trying a suit n respect of the following matters:

(a) ....

(b) ....

(c) ....

(d) the power to allow amendment of an application, memorandum of appeal or revision.

He submits that by amendment in the release application, the very nature of the application would change as earlier the father had moved the release application for his need which was allowed by the prescribed authority and now by amendment at the appellate stage, need of his son had been set up which is incorporated by the impugned order.

Per contra, Sri J.P.S. Chauhan, appearing for the landlord Respondent submits that the landlord only wanted to bring the subsequent events on record by means of the aforesaid amendment application paper No. 43-Ka and the ground of personal need on which the release application had been filed by the landlord has not been given up by him. Rather by the amendment an additional ground has been pleaded due to subsequent events as stated earlier.

A perusal of the amendment application clearly shows that it is not an application to bring on record the subsequent events but an application for amendment in the release application itself as it is stated therein thus:

Sri Chauhan further submits that the order impugned allowing amendment may be quashed and the appellate Court may be directed to decide the appeal on the facts as stated in the release application within a time bound frame as his client does not want the proceedings in the Courts below to be delayed as there is already an order in favour of the Respondent passed by the Prescribed Authority on personal and bona fide need.

After hearing counsel for the parties, I am of the opinion that since the prescribed authority had already allowed the release application in favour of the landlord Respondent, the subsequent events could have been brought on record but the landlord has sought release also on additional ground that due to old age, he cannot go out of Kotdwar and looking into his age and mental condition due to shock of aforesaid accident in which his daughter died and other family members received serious injuries, his son be impleaded as party, would not change the nature of the suit for the reason that these are additional grounds. The prescribed authority has already allowed the release application of the landlord considering his bona fide need and comparative hardships.

In this regard, contention of the counsel for Petitioner has some force that he may be granted opportunity to examine and cross-examine the witnesses, if the order impugned is upheld. But in view of the aforesaid prayer made by the counsel for Respondent that appellate Court may be directed to decide the appeal on the facts as stated in the release application ignoring the amendment, the question of granting any opportunity to the Petitioner, does not arise at all.

Accordingly, the writ petition is allowed and the order impugned dated 27.11.2010 is set aside. The appellate authority is directed to decide appeal expeditiously preferably within a period of two months from the date of production of a certified copy of this order, in accordance with law independently and without being influenced by any observation made in this order. No order as to costs.