Court No.7
Civil Misc. Writ Petition No. 48636 of 1999
Smt. Aaisha Begum vs Smt. Rabiya Begum and others.
Hon'ble Ran Vijai Singh,J.
This writ petition has been filed for issuing a writ of certiorari quashing the
orders dated 15.10.1999 and 17.01.1992 passed by Prescribed Authority/IInd Addl.
Judicial Magistrate, Jhansi in Misc.Case No. 93 of 1995 (Smt. Aaisha Begum vs
Kushtar Naqvi and others) in P.A.Case No. 55 of 1990. Vide order dated 17.1.1992
Prescribed Authority has allowed the release application of the landlord filed under
Section 21 (1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 ( hereinafter referred to as Act No. 13 of 1972) whereas vide
order dated 15.10.1999 petitioner’s application to set aside experte order was
rejected.
The facts giving rise to this case are that the petitioner is the sitting tenant of
the disputed accommodation which consists of one room in house no. 111/1 Nai
Basti, Jhansi. It appears that an application to release of accommodation was filed
by the respondents under Section 21 (1) (a) of the U.P. Act No. 13 of 1972 against
the husband of the petitioner late Munney Khan. The husband of the petitioner after
filing of reply to the release application had not appeared and on 21.8.1991 an order
was passed to proceed exparte against the husband of the present petitioner. The
husband of the petitioner did not appear before the Prescribed Authority and
consequently the release application was allowed on 17.01.1992.
The application to recall the aforesaid order was filed on 25.11.1995 with the
averments that the petitioner was not aware about the pendency of P.A.Case No. 55
of 1990 and she came to know only on 18.11.1995 when the respondents have
threatened to throw out the belongings of the petitioner from the disputed
accommodation. The court below has rejected the petitioner’s application on the
ground that the Revision no. 81 of 1991 in between the parties was decided on
25.3.1992 and petitioner herself along with her husband was doing pairvi in the
revision, therefore, the petitioner has filed a false affidavit stating therein that her
husband was a patient of T.B. and that is why he could not appear in P.A. Case No.
55 of 1990.
Sri R.P.Tiwari, learned counsel appearing for the respondent has supported
the reason recorded in the impugned judgment and submitted that there is no
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illegality, infirmity in the order passed by learned Prescribed Authority rejecting the
petitioner’s application to recall the order dated 17.01.1992.
I have heard learned counsel for the petitioner and Sri R.P.Tiwari learned
counsel for the respondent and perused the record.
From the perusal of the record, it transpires that number of litigations have
been initiated against the petitioner’s husband and those litigations were going on
for example a suit was filed before the J.S.C.C. Jhansi, for eviction on the ground of
arrears of rent, that suit was dismissed and the revision filed against that was also
dismissed. A release application under Section 21(1) (a) of the Act No. 13 of 1972
was also filed and that too was dismissed in default.
The learned Judge while rejecting petitioner’s application to recall the order
dated 17.01.1992 has nowhere recorded that the petitioner has got knowledge of
the pendency of P.A.Case No. 55 of 1990, the only inference has been drawn with
regard to the knowledge of the said case on the ground of dismissal of J.S.C.C.
Revision on 25.3.1992. The respondents also could not brought any material on
record from which the knowledge of the pendency of the case no. 55 of 1990 and
the exparte judgment can be inferred. Otherwise also the release application was
allowed on 17.01.1992, Munney Khan has died on 25.12.1993, and there is nothing
on record to indicate that what has prevented the landlord to file an application
under Section 23 for enforcement of release order, therefore, also the contentions of
the petitioner that she came to know about this proceeding only on 18.11.1995 finds
strength.
In view of that the orders dated 15.10.1999 and 17.01.1992 are hereby
quashed and the writ petition is allowed, subject to the payment of Rs.2000/- as
costs. The Prescribed Authority is directed to decide the release application
expeditiously preferably within a period of six month’s from the date of receipt of
certified copy of the order of this court without giving unnecessary adjournments to
the parties counsel. It is also provided that during the pendency of the release
application the petitioner shall pay Rs.300/- per month as rent to the respondents.
Dt.29.01.2010
PKB
W.P. 48636-1999
