Dismissed

Rafi-Ul-Kadar(Deceased) Thru. Legal Representative Rafat Jamal and Others v. Smt. Noorjahan(Deceased) Thru. Legal Representative Zubair Ahmad and Others

Allahabad HC30 May 2023/101/2022

Case brief

AI extract

What is this about?

The Allahabad High Court held that the second appeal was liable to be dismissed as no substantial question of law arose. However, granting liberty to deposit rent, the court directed the appellant to vacate the premises within one year or face liability for damages and possession recovery.

What did the court decide?

Appellant granted time to vacate the premises on or before 01.11.2023; liable to pay damages and market rent for delayed possession if not vacated.

Rafi-Ul-Kadar(Deceased) Thru. Legal Representative… — Landlord and Tenant | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:39001

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Court No. - 17

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Case :- SECOND APPEAL No. - 101 of 2022

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Appellant :- Rafi-Ul-Kadar(Deceased) Thru. Legal Representative Rafat Jamal And Others Respondent :- Smt. Noorjahan(Deceased) Thru. Legal Representative Zubair Ahmad And Others Counsel for Appellant :- Manisha Srivastava,Sandeep Kumar Srivastava Counsel for Respondent :- Ravi Shanker Tewari,Sheo Pal Singh

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Hon'ble Pankaj Bhatia,J.

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1. Present second appeal has been filed by the appellants aggrieved against the judgment and order passed in Civil Appeal No.12 of 2013 and Civil Appeal No.138 of 2013, decided against the appellants herein.

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2. The facts in brief are that the respondent claiming to be the landlord filed a suit in the court of Judge Small Causes seeking a decree of eviction against the predecessor of the appellants herein. In the said suit, a claim with regard to ownership was made, as such, the suit was returned for being presented before the Civil Court on 29.09.1993. Thereafter, suit was filed bearing No.761 of 1993 before the Civil Judge (J.D.) Lucknow. In the said suit, the predecessor of the appellants herein had put in appearance and contested the said suit on various grounds.

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3. After the exchange of pleadings, as many as nine issues were framed in between the parties by the Civil Judge after

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considering the entire evidences on record. The Civil Judge while deciding the Issue Nos.1 and 8 together decided the same in favour of the plaintiff holding that the plaintiff was the owner of the property in question and also held that the plaintiff was entitled for filing a suit for eviction. While deciding the Issue Nos.2, 3 and 4, the Civil Judge decided that the plaintiff was entitled to claiming damages and arrears of rent. While deciding the Issue No.5, the same was decided in favour of the plaintiff and against the defendant holding that the plaintiff had a cause of action. An issue was also raised with regard to the jurisdiction of the Court, which was framed as Issue No.6, while deciding the said issue, the Civil Court was of the view that the Judge Small Causes Courts in exercise of the powers under Section 23 of the Provincial Small Causes Courts Act had held that the parties should be relegated to avail the remedy before the regular court and the defendant had failed to establish that the court did not have jurisdiction either territorial or pecuniary and thus decided the same in favour of the plaintiff. While deciding the Issue No.9 with regard to the status of the defendant, the appellant herein the Civil Judge recorded that the defendants were the tenants. The Civil Judge also framed Issue No.7 with regard to the reliefs which have been granted to the plaintiff decided the same in favour of the plaintiff holding that the plaintiff was entitled to arrears of rent

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and damages. The suit was decreed granting the defendants 60 days' time to vacate the premises and 60 days' time was granted to pay the amounts as were decreed against the defendants. The appellant herein preferred an Appeal No.12 of 2013 challenging the judgment and decree dated 31.10.2012 along with the appellant, an Appeal No.138 of 2013 was also preferred by Ikbal Hasan. The respondent herein a landlord put in appearance and contested the appeal. Both the appeals were decided by common judgment.

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4. After hearing the parties, the appellate court framed as many as four points for determination, the first being whether the appeal was maintainable. The appellate court decided the same in favour of the appellants and held that the appeal was maintainable, however, while deciding the Issue No.2 with regard to the ownership of the plaintiff by virtue of the sale deed dated 30.03.1983, the appellate court reassessed the evidence as was led before the Civil Court and categorically recorded that the plaintiff was the owner of the property in question. While deciding the point of determination No.3 with regard to the status of the appellants as a tenant and the effect of non-payment of rent. The appellate court recorded that from 30.03.1983, the defendant, being the tenant had failed to deposit any rent nor was any rent deposited before any court either under Section 30(2) of the U.P. Act No.13 of 1972, or

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otherwise, it also held that the defendant had denied the title of the plaintiff and on the basis of the said finding, held that the defendant had failed to deposit any rent and after the service on notice, the tenancy had come to an end. The appellate court upheld the decree passed in Suit No.761 of 1993. Aggrieved against the said, the present Second Appeal has been filed.

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5. There is no assertion in the second appeal that any amount of rent was either paid by the appellant or deposited before any court. The grounds taken in the appeal seek to challenge the title of the plaintiff on various grounds, which issues have already been decided by the Civil Court as well as the appellate court after appreciation of evidence. In the court, the counsel for the appellant admitted that the amounts of rent were never deposited by the appellant before any court or otherwise and sought the permission of this Court to deposit the arrears of rent. It was alleged that on account of wrong legal advice the amounts were not deposited and sought the liberty of this Court to deposit the amounts.

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6. In view of the settled law, no permission to make good the deposits can be granted at the second appellate stage. No question of law much less substantial question of law was urged or pleaded in the memo of appeal as such the second appeal is liable to be dismissed.

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7. However, at this stage, the counsel for the appellants, after

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obtaining the instructions from their clients and after some arguments prays that she may be granted time to vacate the premises. she prays that a period of one year be granted to vacate the premises.

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8. The counsel for the respondents, opposes the said request as far as the time is concerned and prays that a period of two months, if granted, shall be reasonable time, to which the counsel for the respondents will have no objection.

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9. In view of the pleadings and arguments, no substantial question of law arises from the order impugned, however the appellant is granted time to vacate the premises on or before 01.11.2023. The appellants shall hand over the vacant and peaceful possession of the property in question to the respondents and no one else and the appellants shall not create any third party right in terms of title or possession. During the said period, the appellant shall not in any way alter the nature of the property including the structure.

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10. The counsel for the respondents gives up claim for money decree as ordered subject to the appellant vacating and giving the vacant and peaceful possession to the respondents within the time granted by this Court.

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11. It is made clear that non-observation of any of the

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conditions would amount to contempt of court.

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12. In case, the possession is not handed over as directed above within the time granted i.e. 01.11.2023, the appellants would be responsible and liable to pay damage as per market rent of the property, since the date of the institution of the suit, as well as

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an amount of Rs.5,00,000/- towards special damages.

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13. The Second Appeal is decided accordingly.

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Order Date :- 30.5.2023 KR

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Digitally signed by :- RABINDRA KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Rafi-Ul-Kadar(Deceased) Thru. Legal Representative Rafat Jamal and Others v. Smt. Noorjahan(Deceased) Thru. Legal Representative Zubair Ahmad and Others

Case brief

What is this about?

What did the court decide?

Rafi-Ul-Kadar(Deceased) Thru. Legal Representative Rafat Jamal and Others v. Smt. Noorjahan(Deceased) Thru. Legal Representative Zubair Ahmad and Others

Case brief

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What did the court decide?

What the court decided

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