State of U.P. and Another vs Sudhir Kumar and Others

Anjani Kumar, J.—These two writ petitions between the parties raise common question of fact and law, therefore, they are being disposed of by common judgment.

That an ex parte decree for eviction and arrears of rent was passed against the Petitioner-tenant-Defendant by the trial court on 17.9.1997 in J.S.C.C. Suit No. 128 of 1994. Aggrieved thereby the Petitioner preferred a time barred revision before the revisional court u/s 25 of the Provincial Small Cause Courts Act, 1887, the revisional court by its order dated 11.4.2004, dismissed the application for condonation of delay and also dismissed the revision referred to above filed by the Petitioner-tenant as barred by time. Aggrieved thereby the Petitioner-tenant preferred a writ petition being Writ Petition No. 27589 of 2002. Initially this Court was pleased to pass an interim order dated 15.7.2002, directing the Petitioner to pay the entire decrial amount. This order dated 15.7.2002 was modified by this Court vide its order dated 25.3.2004, since the Petitioner has not complied with the modified interim order dated 25.3.2004 and has not deposited the entire decrial amount due upto 29.2.2004 within one month of 25.3.2004 and have also further not paid rent to the Respondent-landlord with effect from March 2004 at the rate of Rs. 500 per month in terms of the modified interim order dated 25.3.2004, the interim order staying the operation of the impugned order stands vacated. The decree holder of the Original Suit No. 128 of 1994 therefore filed a execution case which has been registered as Misc. Case No. 42 of 2004, the Petitioner-tenant filed an objection u/s 47 of the CPC to the effect that the decree holder themselves have filed an application u/s 21(8) of U.P. Act No. 13 of 1972 which has been registered as P.A. Case No. 9 of 1994 before the Rent Control and Eviction Officer, Moradabad. In the application u/s 21(8), which is still pending, the decree holder has treated the Petitioners as their tenant. In these circumstances, the notice given by the landlord u/s 80 of the CPC and u/s 106 of the Transfer of Property Act stood waived and the decree passed in the J.S.C.C. Suit No. 128 of 1994, the execution whereof is pending, has become unexecutable. In these circumstances, this execution case is liable to be dismissed. The Respondent preferred a reply to the objection filed by the Petitioner u/s 47 of the Code of Civil Procedure. The executing court vide its order dated 24.11.2004 rejected the objection filed by the tenant u/s 47 of the CPC and directed the executing court to proceed, aggrieved by the order dated 24.11.2004 the Petitioner preferred a revision being S.C.C. Revision No. 82 of 2004 which was dismissed by the revisional court on 21.12.2004. Thus, this writ petition.

From the facts and circumstances stated above, it is clear that the fate of Writ Petition No. 22833 of 2005 will decide the fate of earlier Writ Petition No. 27589 of 2002. As already discussed the order of the trial court dismissing the objections of the Petitioner to the execution is rejected by the trial court holding that the proceedings u/s 21(8) of U.P. Act No. 13 of 1972 cannot act or operate as a bar to the execution proceedings and the contention of the Petitioner by filing aforesaid case u/s 21(8) of U.P. Act No. 13 of 1972 the earlier notice under Sections 80 of CPC and 106 of T.P. Act served by the Respondent-landlord on the Petitioner-tenant stood waived and the decree passed in J.S.C.C. Suit No. 128 of 1994 has become un-executable cannot be accepted and therefore is rejected. Before the revisional court the Petitioner raised the same objections as per observations of the revisional court. The tenant could not cite any case in support of his contention. On the contrary learned Counsel for the decree holder relied upon the decision in Roshan Islam v. District Judge, Bulandshahr, 1982 (8) ALR 827 ; Sheikh Bundu v. State of U.P. and Ors. 1977 ARC 454 and Abdul Munnan and Ors. v. Additional District Judge, Lucknow and Ors. 1986 (2) ARC 329, wherein it has been held that the application u/s 21(8) filed by the landlord does not amount to the waiver of the notice u/s 106 of the T.P. Act since the Petitioner-tenant has not complied with the order of this Court in Writ Petition No. 27589 of 2002 and because of the aforesaid non-compliance of the modified interim order dated 25.3.2004, stood automatically vacated the pendency of the proceedings u/s 21(8) of U.P. Act No. 13 of 1972 cannot amount to waiver of the notice u/s 106 of T.P. Act. Therefore, according to the revisional court the decree cannot be said to be unexecutable. The revisional court dismissed the revision and affirmed the order of the trial court rejecting the objections of the Petitioner u/s 47, C.P.C.

Before this Court learned Counsel for the Petitioner advanced the same arguments but could not cite any decision in his support. Learned Counsel for the Respondent relied upon the same decision. In view of law laid down by this Court as held in the cases referred to above, the view taken by the trial court and affirmed by the revisional court deserves to be upheld and writ petition deserves to be dismissed and is hereby dismissed.

In view of what has been stated above, the Writ Petition No. 22833 of 2005 is dismissed.

In view of what has been stated above, the Writ Petition No. 22833 of 2005 having been dismissed, the Writ Petition No. 27589 of 2002 is also dismissed. Interim order, if any, stands vacated.