Usha Rani vs Prescribed Authority & Ors.

J.C. Gupta, J.—Heard Petitioner''s Counsel and learned Standing Counsel.

This writ petition is directed against the order dated 3051998 passed by the Prescribed Authority rejecting petitioner''s application moved under Section 5 of the Limitation Act for the condonation of delay in moving the restoration application.

The facts giving rise to this writ petition may be stated in short. An application for release of shop in question was moved under Section 21(l)(a) of U.P. Act No. XIII of 1972 by respondent No. 2, since deceased. In the said application legal heirs of the deceasedtenant were tenant represents the interest of all other joint tenants. In Smt. Anju Sharma v. Suresh Chand Jain and others, 1993 (1) ARC 291, after the death of original tenant, suit for ejectment was filed against some of his heirs without impleading all the heirs. The decree for eviction was challenged by those who were not impleaded. Still in the circumstances it was held that the decree passed was binding on all the j oint tenants including those who were not impleaded. In the case of Sunil Kumar v. SpecialJudge, Jaunpurand others, 1994 (II) ARC 194, it was held that a person is not entitled for impleadment and contest the matter in appeal, if the matter was fully represented by the some of the other jointtenants before the trial Court.

In view of the above settled position of law and specially having regard to the fact that the other joint tenants who were impleaded alongwith the petitioner in the release application had contested the matter upto this Court and lost from every Court and also obtained an order from this Court for time to vacate the premises in question on their filing an undertaking, the present application for restoration appears to have be''en moved mala fide simply with a view to deny the landlord of his right to obtain possession of the premises in question, which incidently happens to be a shop. There is no allegation that other joint tenants who had contested the matter, had colluded with the landlord. The present application for restorationper se appears to be an abuse of process of Court.

For the reasons stated above, the impugned order of the Prescribed Authority is upheld and in the circumstances proceedings pending before the Prescribed Authority on the restoration application moved by the petitioner are quashed. This Court further is of the opinion that for bringing such a frivolous litigation on baseless grounds, much of the time of this Court as well as of the Courts below was wasted, therefore, the petitioner should be settled with costs which in the circumstances are quantified at Rs. 2,000 which shall be deposited by the petitioner with the Registrar of the Court within one month, failing which the order shall be sent to the District Court for execution thereof in accordance with law.

The writ petition is dismissed in limine.