Prem Shanker Srivastava vs Vth Additional District Judge,Kanpur Nagar and Others

R.H. Zaidi, J.—Present petition arises out of the proceedings initiated by Respondent No. 2, the landlady, under Section 21(1) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. XIII of 1972), for short the Act, and is directed against the order dated 2182000 passed by Respondent No. 1 dismissing Misc. Case No. 28/74/97.

Relevant facts of the case giving rise to the present petition, in brief, are that the Respondent No. 2 filed a release application on the ground of her personal need and comparatively greater hardship against the petitioner in respect of a portion of House No. 2/452, Nawabganj, Kanpur Nagar, for short the building in question. The application was objected to and opposed by the petitioner who has denied the claim of Respondent no. 2 and asserted that her need was neither genuine nor bonafide. It was also pleaded that in case the application was allowed, he will suffer comparatively greater hardship than the hardship which maybe occasioned to Respondent No. 2 if his application was rejected. Parties filed evidence, oral and documentary, in support of their cases. The Prescribed Authority after going through the material on record held that the need of the Respondent No. 2 for the building in question was bonafide and that in case the application was rejected, he will suffer comparatively more hardship, by its judgment and order dated 391993. Challenging the validity of the said order, the petitioner filed an appeal under Section 22 of the Act on 2451993. It was on 1971995 that the said appeal was dismissed for default. The petitioner thereafter filed an application on 287 1995 for recalling the order dated 1971995. The said application was also dismissed for default on 1591997. It was on 25101997 that an application for restoration of restoration application was filed alongwith an application under Section 5 of the Limitation Act, which as registered as Misc. Case No. 28/74/97. The said application was also dismissed for default on 2941999. The petitioner again filed an application on 1151999 for recalling the order dated 2941999. The said application was allowed by the Appellate Authority by its judgment and order dated 522000 and the order dated 2941999 was recalled. The effect of the said order was that Misc. Case No. 2S./74/97 was restored to its original number. The Appellate Authority thereafter heard the parties and held that the petitioner was not prosecuting his appeal diligently and no sufficient cause for condonation of delay in filing the application was shown. The Appellate Authority after noticing the relevant facts dismissed the application under Section 5 of the Limitation Act as well as the application filed under Order IX, Rule 9 read with Section 151, CPC by its judgment and order dated 2182000. Hence, the present petition.

I have heard learned Counsel for the parties and also perused the material on record.

Learned counsel for the petitioner vehemently urged that the application dated 1151999 wasallowed by the Appellate Authority by its judgment and order dated 522000, therefore, there was no justification for the said authority to dismiss the application under Section 5 of the Limitation Act as well as the restoration application. According to him, the impugned order dated 2182000 was wholly illegal and without jurisdiction. The same was, therefore, liable to be quashed.

On the other hand, learned Counsel appearing for the contesting Respondent Non supported the validity of the impugned order it was urged that the petitioner was afforded more than sufficient opportunities to prosecute his case but he deliberately did not prosecute the appeal filed by him as he wanted to prolong the proceedings and to abuse the process of the Court, therefore, the writ petition has got no merit. The same was, therefore, liable to be quashed.

I have considered the submissions made by learned Counsel for the parties.

From the statement of facts made above, it is apparent that before the Appellate Authority the petitioner did not act diligently. His appeal was dismissed for default on 1971995 as well as the restoration applications filed by him were dismissed on 1591997 and 2941999. The Appellate Authority taking a lenient view in the matter afforded one more opportunity to him to prosecute his application and appeal before the said authority by allowing the restoration application dated 1151999 by order dated 522000. The effect of the order dated 522000 was that his application for restoration of restoration application was revived and the misc. case was restored to its original number. The submission made by learned Counsel for the petitioner that the Appellate Authority had no jurisdiction or was not right in dismissing the application under Section 5 of the Limitation Act and the application for restoration filed under Order IX, Rule 9, CPC therefore, cannot be accepted. The Appellate Authority has after hearing the parties went through the entire material on record and held that :

The findings recorded by the Appellate Authority are based on relevant evidence on record. They cannot be said to be perverse or illegal in any manner. I do not find any illegality or infirmity in the impugned order. No case for interference under Article 226 of the Constitution of India is made out.

The writ petition fail; and is dismissed in limine.