Ram Narayan Om Prakash and Another vs Amit Kumar

Shishir Kumar, J.—This writ petition has been filed for quashing the order dated 3.9.2009 passed by Additional District Judge (Court No. 2), Ghaziabad in Rent Control Appeal No. 61 of 2007 by which application No. 22-C moved by petitioner tenant was dismissed.

The facts arising out of writ petition are that petitioner is tenant in Shop No. 225, New No. 235 situated at Mohalla Kanhaiya Lal Agarsen Bazar, Ghaziabad. The respondent is the landlord and has purchased the said shop in question from earlier owner namely Smt. Sudha Mangal, Puneet Mangal, Poonam Mangal and Km. Bhawan Mangal. The landlord-respondent filed a suit for ejectment and arrears of rent against petitioners, which was dismissed by its order dated 1.11.2004. Against the said order, respondent-landlord filed a revision which is still pending. In the meantime, respondent-landlord filed an application u/s 21(1)(a) of the U.P. Act No. 13 of 1972 for release of the said accommodation. A written statement was filed by petitioner. The prescribed authority vide its judgement and order dated 8.5.2007 was pleased to release the accommodation in dispute in favour of landlord-respondent and directed petitioner to handover the possession. Petitioner aggrieved by order of release against him filed an appeal with an application for stay of the execution of the judgement. During pendency of application petitioner moved an application No. 30-C for a direction for production of will dated 10.4.2002. Prescribed Authority rejected the said application. Against that order, petitioner filed a Writ Petition No. 71528 of 2005, which was dismissed on 22.1.2005 holding therein that the order passed is an interlocutory order and if ultimately prescribed authority decided the case against petitioner, he can challenge the same in appeal. In view of aforesaid fact, an application No. 22-C was moved u/s 34 and Rule 22 of the U.P. Act No. 13 of 1972 and u/s 151 of CPC with a prayer to direct the respondent-landlord to produce the copy of the alleged will dated 10.4.2002 but by the impugned order, the Appellate Authority has rejected the application.

Sri K.N. Tripathi, learned Senior Advocate, assisted by Sri Raj Kumar, Advocate, has submitted that the court below without considering the order dated 22.11.2005 passed by this Court in the writ petition has rejected the application. The order impugned has been passed without considering the submission made by petitioner that alleged will dated 10.4.2002 by Sri Om Prakash, father of respondent-landlord is a forged document. Only with an intention to get the shop in question vacated , a forged will has been prepared and in collusion moved an original suit No. 772 of 2003 and has obtained a decree with an intention only to give legal force of the will in question. The court below has also not considered this aspect of the matter that original copy of the alleged will has not been produced before any authority because that was the main issue to be decided whether the will was genuine or not and regarding the maintainability of the application filed by respondent-landlord u/s 21(1)(a) of the Act. A finding to this effect that judgement passed in Suit No. 672 of 2003 has not been challenged in any court of law, is wholly illegal and cannot be sustained in view of the fact that petitioner was not a party to the said suit, therefore, has got no right to challenge the same. The production of the will is necessary in the end of justice but the court below has rejected the application.

On the other hand, Sri Manish Goyal, learned Counsel appearing for the respondents submits that petitioner has never challenged the finding recorded by the court below to this effect that in the application u/s 21 of the Act, need and hardship of the parties has to be decided, the validity of the will cannot be decided in this proceeding. Further submission has been made that in a suit between the parties validity and genuineness of said has been established, therefore, it is not open to the petitioner to challenge the same. Further, learned Counsel for respondents has placed reliance upon the following judgements of this Court.

2007 (68) ALR 114 Vishnu Bhagwan v. VIth Additional District Judge, Bareilly and Ors. Paragraph 13 is being quoted below:

A perusal of the judgment in suit No. 13 of 1985 will show that the suit was decided after exchange of the pleadings and framing of issues. It may be possible that the suit might have not been contested hotly, but it does not follow that the said suit was a collusive one. It is difficult to appreciate the observation made by the Revisional Court in the impugned judgment that the said judgment of O.S. No. 13 of 1985 was a sham (Banawati). A full fledged trial has taken place which was followed by a decree. It is not open to a tenant to see that the decree passed by a Civil Court is sham or collusive one without placing any material on record to show that it was a collusive decree. The parties of the said suit No. 13 of 1985 ware successors of a common ancestor and all are members of a family. In such circumstance, if they entered into a compromise or oral partition to settle the dispute among themselves, a tenant, who is an outside, is no body to say that the said compromise or family settlement is collusive one and not binding on him.

1989 (2) All RC 344 Khem Chand v. IVth Additional District Judge, Bulandshahr and Ors. Paragraphs 8, 9, 10 are being quoted below:

The main contention of the learned Counsel for the petitioner was that the partition decree is a collusive one and it should have been ignored by the authorities below. They have committed a mistake in relying upon the same. His case further was that this compromise was arrived at between the landlord-respondent No. 3 and his father in order to evict the petitioner from the shop in dispute. The contention is misconceived in as much as so long the decree passed by the Civil Court in Suit No. 107 of 1983 is not set aside, the Prescribed Authority has no jurisdiction to record a finding that the compromise decree was collusive. The validity of the decree cannot be challenged in collateral proceedings.

In order to support his contention the learned Counsel for the petitioner relied upon a decision reported in 1989 (1) ARC 526 B.N. Tiwari v. Addl.District Judge and Ors. The question for consideration in that case was whether there was an oral partition amongst the parties are not. The decision on that question was within the power of the Prescribed Authority and after considering the evidence a finding has been recorded that the oral partition was a collusive one. This case has no application to the facts of the present case because in the instant case there is already a decree of Civil Court which has not been set aside as yet. It was not open to the Prescribed Authority to record a finding otherwise. The authority cited by the learned Counsel for the petitioner has no relevance so far as the facts of the present case are concerned.

On the basis of the discussion above there is no difficulty in my way in holding, that the finding recorded by the Appellate Authority as well as by the Prescribed Authority that the partition decree was a valid one, is correct.

1992(2) ARC 241 Raj Mohan Krishna v. Second Additional District Judge, Allahabad and Ors. Paragraph 8 is being quoted below:

Learned Counsel for the petitioner next contended that the decree in O.S. No. 156 of 1981 is collusive in nature and should be ignored. In support of his submission he placed reliance on Devi Dass Vs. Mohan Lal, and B.N. Tewari v. IInd Additional District Judge 1982 UPRCC 413 : 1982(1) ARC 526. In the case of Devi Das (supra), after purchasing the property the subsequent purchaser initiated proceedings for the ejectment of the tenant. The case of the tenant was that the sale by the original owner was not bonafide and made with an ulterior motive was a sham transaction. The Rent Control Authorities did not at all consider the case set-up by the tenant. It was on these facts that the Hon''ble Supreme Court remanded the matter for recording a finding on the question whether the sale of the building was a bonafide transaction. In the case of B.N.Tiwari (supra), it was held that it was open to a tenant to show that a partition or family settlement is malafide in the sense that there was no real partition or family settlement whatsoever and the very factum of the alleged transaction lacked basis. Both these cases have no application to the case in hand. The family partition has been effected between the father and his sons. Respondent No. 3 did not derive title only on the basis of family partition but on the basis of the decree passed in the partition suit. It is not open to a tenant to challenge the decree passed in a civil suit in proceedings for release u/s 21 of the Act. The Prescribed Authority is a Tribunal of limited jurisdiction which has been constituted under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, for deciding applications u/s 21 or other provisions enumerated under the Act. It has no jurisdiction at all to examine the correctness or otherwise of a decree passed by a competent Civil Court. The Tribunal has to proceed on the basis that the decree of a Civil Court is a valid decree and has no recognise the rights of the parties on its basis. It has been held in Khem Chand v. IVth Additional District Judge 1989 (2) ARC 344, that it is not open to any part to challenge the genuineness of a decree of a Civil Court before the Prescribed Authority and so long as the decree is not set aside it has to be accepted as genuine.

Taking support of the aforesaid contention, learned Counsel for respondents submits that it is not open to the tenant to challenge that decree passed by civil court is collusive one without placing any material on record to show that it was a collusive decree. Unless and until, decree passed in the suit is set aside, prescribed authority has no jurisdiction to take into consideration the validity of will. In view of aforesaid fact, learned Counsel for respondents submits that writ petition is liable to be dismissed.

Further argument has been made by learned Counsel for respondents that present writ petition in view of order passed by this Court being an order interlocutory, is also not maintainable.

I have considered the submissions made on behalf of parties and have perused the record. There is no dispute to this effect that petitioner is a tenant and respondent is a landlord. It is also not disputed that Suit No. 672 of 2003 has been decreed and it has been held that will is genuine and according to will, property in question has come in the share of the respondent. Further, it has to be noted that application filed before the prescribed authority was dismissed in writ petition filed by petitioner, against the said order, that has also been dismissed holding therein that it is an interlocutory order, therefore, petition is not maintainable and petitioner can challenge the same if ultimately prescribed authority decides against the petitioner. Further the Appellate Authority while considering the application filed by petitioner has recorded a finding that the decree in suit has not been challenged and till date it is effective and this Court cannot look into the legality and validity of the said will and petitioner cannot challenge the genuineness of the said will. The finding recorded by the court below is based upon the consideration of various judgements, therefore, it cannot be held that order passed by the Appellate Authority is bad in law.

The writ petition is devoid of merits and is hereby dismissed without imposing any cost.