Partly allowed

Nand Kishore (Deceased) and 2 Others v. Sharad Kumar

Allahabad HC2 Nov 2021A227/6044/2021

Case brief

AI extract

What is this about?

Under Art. 227, the Court quashed exparte eviction and restoration orders due to denial of hearing to the tenant. Rent was enhanced, and the case remanded for disposal within six months after a modest cost deposit.

What did the court decide?

Impugned exparte orders quashed. Monthly rent enhanced to Rs. 5000/. Case remanded to lower court to be disposed of within six months.

Nand Kishore (Deceased) and 2 Others Vs Sharad Kumar — Landlord and Tenant | Allahabad HC (2021)

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Court No. - 69

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Case :- MATTERS UNDER ARTICLE 227 No. - 6044 of 2021

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Petitioner :- Nand Kishore (Deceased) And 2 Others Respondent :- Sharad Kumar Counsel for Petitioner :- Pankaj Agarwal Counsel for Respondent :- Some Narayan Mishra

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Hon'ble Shekhar Kumar Yadav,J.

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Heard learned counsel for the petitioners and Sri Some Narayan Mishra, learned counsel for the respondent.

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The present petition has been filed under Article 227 of the Constitution for setting aside the exparte Judgement and order dated 08.11.2016 passed by learned Prescribed Authority Anoopshahar/Bulandshahr in Rent Control Case No. 6 of 2016 (Sharad Kumar Vs. Nand Kishore), whereby release application filed by the landlord-respondent under Section 21 (1)(a) (b) of U.P. Act No. XIII of 1972 has been allowed as well as to set aside the order dated 07.10.2021 passed by Prescribed Authority/Additional Chief Judicial Magistrate, Anoopsahahr, District Bulandshahr in Misc. Case No. 03 of 2017 (Nand Kishore and anothr Vs. Sharad Kumar), whereby restoration/recall application filed by the tenant-petitioner for recalling the exparte order dated 08.11.2016 has been rejected.

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Learned counsel for tenant-petitioners has submitted that the plaintiff-respondent-landlord filed a release application under Section 21 (1)(a) (b) of U.P. Act No. XIII of 1972, which was allowed exparte vide Judgement and order dated 08.11.2016 against which, restoration/recall application was filed on 27.01.2017 stating therein that the

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petitioners had come to know about the exparte Judgement and order dated 08.11.2016 only on 21.01.2017 when the landlord-respondent visited the spot for taking over the possession of the house in question on the strength of exparte order. As soon as the tenant-petitioners came to know about the aforesaid exparte order, the petitioners immediately filed a recall/restoration application. He further submits that no notice or summons were issued to the petitioners prior to passing the impugned order and thus it was prayed before the Court below to recall the order and to restore the case and hear the same on merits, but the learned Prescribed Authority without considering the grounds taken in the restoration application has illegally rejected the same, hence the impugned Judgement and order dated 08.11.2016 as well as order dated 07.11.2021 are liable to be set aside by this Court.

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Sri Some Narayan Mishra, learned counsel for the landlord-respondent has raised objection and submitted that the recall application for recalling the exparte order dated 08.11.2016 has rightly been rejected and is in accordance with law, which suffers from no legal infirmity and therefore the impugned orders are liable to be upheld by this Court.

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I have perused the material available on record as well as impugned orders.

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This Court is of the opinion that the learned Court below while rejecting the recall/restoration application has not considered the fact that no opportunity of hearing whatsoever was given to the tenant-petitioners. The

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recall/restoration application was within time from the date of knowledge and therefore, the Court below ought to have provided opportunity of hearing to the petitioner in the interest of justice.

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In view of above, the impugned Judgement and order dated 08.11.2016 passed by learned Prescribed Authority Anoopshahar/Bulandshahr in Rent Control Case No. 6 of 2016 (Sharad Kumar Vs. Nand Kishore) as well as order dated 07.10.2021 passed by Prescribed Authority/Additional Chief Judicial Magistrate, Anoopsahahr, District Bulandshahr in Misc. Case No. 03 of 2017 (Nand Kishore and another Vs. Sharad Kumar), are hereby quashed subject to the payment of Rs. 50,000/(Fifty Thousand only) as cost by the tenant-petitioners. The amount of cost shall be deposited by the tenantpetitioners within a month from today before the concerned Court below, which shall be paid to landlordrespondent without asking him to furnish any security.

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After deposit of the amount of cost as stated above, the concerned Court below is directed to consider and decide the Rent Control Case No. 6 of 2016 (Sharad Kumar Vs. Nand Kishore) filed by the landlord-respondent under Section 21 (1)(a) (b) of U.P. Act No. XIII of 1972, expeditiously, in accordance with law, within a period of six months from the date of presentation of a certified copy of this order by fixing short dates and without granting unnecessary adjournments to either of the parties, if there is no other legal impediment. If the adjournment is sought by either of the parties, the court below shall impose heavy cost upon the parties.

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Learned counsel for the landlord-respondent has submitted that the tenant-petitioners are paying meagre monthly rent of Rs. 265/- towards house under their tenancy, which is situated in heart of the city and prays to enhance the amount of monthly rent.

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Accordingly, the monthly rent of Rs. 265/- per month is enhanced to monthly rent of Rs.5000/- which shall be deposited by the tenant-petitioners by 10th of each succeeding month before the concerned Court below. The enhanced amount of rent shall be paid to landlordrespondent without asking to furnish any security.

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In case of default in payment of cost as stated above, this order shall stands vacated.

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With the aforesaid directions, the instant petition stands disposed off.

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Order Date :- 2.11.2021 S.Ali

Nand Kishore (Deceased) and 2 Others v. Sharad Kumar

Case brief

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Nand Kishore (Deceased) and 2 Others v. Sharad Kumar

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