Riajul Hasan vs A.D.J. and Others

Anjani Kumar, J.—The petitioner, who is the tenant of an accommodation aggrieved by the order dated 2.12.1998, passed by the prescribed authority under the provisions of U.P. Act No. 13 of 1972 which shall hereinafter be referred to as ''the Act'' and the order passed by the revisional court dated 27.2.2001, approached this Court by means of this writ petition under Article 226 of the Constitution of India for quashing of the aforesaid orders and a further direction that the prescribed authority be directed to decide the application u/s 21(1)(a) of the Act filed by the landlord on merits after hearing the petitioner-tenant.

The facts which emerge out of the pleadings of the parties are that the respondent-landlord filed an application u/s 21(1)(a) of the Act for the release of the accommodation in dispute for his personal bona fide requirement. The petitioner-tenant contested the aforesaid application by filing written statement. The prescribed authority before whom the aforesaid application was pending, by its ex parte order dated 2.12.1998, allowed the application filed by the landlord and directed for release of the accommodation in dispute in favour of the landlord. Aggrieved thereby the petitioner-tenant preferred an application dated 10.12.1998 before the prescribed authority purporting to be an application under Order IX, Rule 13 of the CPC for setting aside the ex parte order dated 2.12.1998 which was registered as Misc. Case No. 327 of 1998. The prescribed authority after exchange of the objections rejected the petitioner''s application filed under Order IX, Rule 13 of the Code of Civil Procedure. Aggrieved by the order passed by the prescribed authority rejecting the petitioner''s application for setting aside the ex parte order dated 2.12.1998 preferred a revision purporting to be revision u/s 115 of the Code of Civil Procedure. The revisional court dismissed the revision as not maintainable. Thus, this writ petition.

Learned Counsel for the respondents raised an objection regarding maintainability of the revision u/s 115 before the revisional court. Learned Counsel for the respondent submitted that in view of the provisions of Section 38 of the Act no revision lies as the provisions of CPC as such are not applicable to the proceedings under the Act. Learned Counsel for the respondent relied upon the decisions in Sajida Begum and Others Vs. Ist Additional District Judge, Farrukhabad and Others, Chandeshwar Yadav v. Smt. Radha Devi and Ors. JT 2001 (Suppl 1) SC 564 ; Salil Dutta v. T.M. and M.C. Pvt. Ltd. 1992 RD (Suppl) 394 and Rafiq and Ors. v. Munshi Lal and Ors. 1981 ACJ 375. It is further submitted by learned Counsel for the respondent that in view of the provisions of Section 37(1) of U.P. Act No. 13 of 1972 the order passed by the prescribed authority has become final. The provisions of Section 37 (1) of U.P. Act No. 13 of 1972 are reproduced below :

Finality and presumption.--(1) No order made in exercise of any power conferred by or under this Act shall be called in question in any Court.

The argument advanced on behalf of learned counsel for the respondent, in my opinion, deserves to be accepted and it is held that no revision lies u/s 115 of the CPC against the order passed by the prescribed authority under the provisions of the Act which has attained finality u/s 37(1) of the Act. The revision u/s 18 of the Act will lie only against the order passed u/s 16 of the Act or u/s 19 of the Act and that too on the grounds enumerated u/s 18 of the Act. Thus, the order passed by the revisional court dismissing revision is justified but for reasons stated above.

Learned Counsel for the petitioner then submitted that this writ petition may be treated as writ petition against the order passed by the prescribed authority and further that in view of the law laid down by the Apex Court and this Court Sajida Begum and Others Vs. Ist Additional District Judge, Farrukhabad and Others, Chandeshwar Yadav v. Smt. Radha Devi and Ors. JT 2001 (Suppl 1) SC 1564 and Salil Dutta v. T.M. and M. C. Pvt. Ltd. 1992 RD (Suppl) 394, the view taken by the prescribed authority in rejecting the application filed by the petitioner under Order IX, Rule 13 of the CPC deserves to be set aside.

Learned Counsel for the respondent has submitted that in view of the finding recorded by the prescribed authority regarding cause shown being insufficient for the non-appearance on the date fixed when the ex parte order was passed against the petitioner, this Court should refrain from interfering with the order passed by the prescribed authority in view of the law laid down by the Apex Court in a case in Ramji Dass v. Mohan Singh 1978 ARC 496, where the Apex Court ruled that the case should be decided on merits rather than on technicalities. Learned Counsel for the petitioner further relied upon the decision of the Apex Court in Rafiq and Ors. v. Munshi Lal and Ors. 1981 ACJ 375.

In view of the aforesaid law and in view of what has been stated above, I find that the order dated 2.12.1998, passed by the prescribed authority deserves to be quashed and is hereby quashed. The writ petition is allowed. The matter will now go back to the prescribed authority who shall first decide the application filed by the petitioner for setting aside the ex parte order dated 2.12.1998, passed under Order IX, Rule 13 of the CPC in the light of the observations made in this judgment and in accordance with law and in case the prescribed authority set asides the ex parte order, it will permit the petitioner to contest the proceedings in accordance with law. Since the matter is fairly old, the prescribed authority is directed to decide the case within six months from the date of presentation of certified copy of this order before it.

In view of what has been stated above, this writ petition succeeds and is allowed. The order dated 2.12.1998 is quashed. The matter will now go back to the prescribed authority to decide the petitioner''s application under Order IX, Rule 13 of the CPC afresh in the light of direction already issued.