Disposed

Surmila Devi and 2 Others v. Shri Chandra and 2 Others

Allahabad HC9 Aug 2023A227/6013/2023

Case brief

AI extract

What is this about?

In a writ petition under Article 227 seeking set-aside of impugned judgment and restraint of eviction, the Court allowed substitution of a deceased petitioner. Regarding the eviction matter, holding that the tenant must vacate after occupying for over 50 years, the Court granted one year to vacate subject to specific conditions regarding affidavits, decretal amounts, and rent.

What did the court decide?

Substitution of petitioner allowed. Tenant granted one year to vacate premises subject to conditions of depositing amounts and paying monthly rent; no fresh petition permitted.

Surmila Devi and 2 Others Vs Shri Chandra and 2 Others — Partition | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:160489

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Court No. - 4

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Case :- MATTERS UNDER ARTICLE 227 No. - 6013 of 2023

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Petitioner :- Surmila Devi And 2 Others Respondent :- Shri Chandra And 2 Others Counsel for Petitioner :- Samarath Singh,Anil Kumar Rai,Vishnu Singh Counsel for Respondent :- Shiv Om Vikram Singh Chauhan

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Hon'ble Prakash Padia,J.

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Heard Sri Vishnu Singh, learned counsel for the petitioner and Sri Vishnu Gupta, learned Senior Counsel assisted by Sri Vikram Singh Chauhan, learned counsel for the respondents.

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The petitioners have preferred the present petition with the following prayers:-

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i set aside the. impugned judgement and order dated 15.3.2023 (Annexure no.24 to this petition) passed by Additional District & Sessions Judge, Court No.8, Allahabad in J.S.C.C: Revision No. 309 of 2009 between Smt. Surmila Devi and 2 others Vs. Shri Chand and others and in Civil Misc. Case No. 457 of 2010 (Cross Objection) between Shri Chand Vs. Smt. Surmila and others and as well as the ~ judgement and order dated 6.11.2009 (Annexure no.11 to this petition) passed by learned Judge Small Causes Court in S.C.C. Suit No.16 of 2000 and as well as the judgement and order dated 4.3.2015 (Annexure no.23 to this petition) passed by learned Judge, Small Causes Court, Allahabad in S.C.C. Suit No.16 of 2000.

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ii. restrain the plaintiff — respondent — landlord from dispossessing the petitioners from the premises in question during pendency of the petition.

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On 26.07.2023 following order was passed:-

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Ref:- Civil Misc. Substitution Application No.3 of 2023

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1. The present substitution application supported by an affidavit, has been preferred with the prayer to substitute the legal heirs and representative namely Smt. Sanju Jaiswal (widow), Unnati (daughter) and Akshat (son) of petitioner No.2 namely Sanjay Kumar Jaiswal as petitioner Nos.2/1 to 2/3 in the body of the petition. It is stated in paragraph No.4 of the affidavit that petitioner No.2 namely Sanjay Kumar Jaiswal had been died on 24.06.2023 leaving behind her legal heirs.

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2. Learned counsel for the respondents have no objection if the substitution application is allowed.

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3. Heard learned counsel for the parties and perused the record.

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4. Cause shown is sufficient to condone the delay and to allow the substitution application.

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5. Accordingly, the Substitution Application is allowed.

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6. Office is directed to insert the word "deceased" after the name of petitioner No.2 namely Sanjay Kumar Jaiswal and substitute the name of his legal heirs contained in paragraph four of the affidavit of substitution application as petitioner Nos.2/1 to 2/3.

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7. The aforesaid exercise be completed by the office within a week from today. Order on the Petition.

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1. It is admitted between the parties that the petitioner is the tenant in the premises in question from last more than fifty years and paid the rent @ Rs.1,000/- per month from the initial date of tenancy.

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2. Since the petitioner is the tenant last 50 years, this Court is of the opinion that the tenant must vacate the premises.

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3. As prayed by learned counsel for the petitioner, ten days time is granted to file affidavit of one of the petitioners stating therein that in how much time the petitioners will vacate the premises.

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4. Put up this matter as fresh after two weeks.

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Pursuant to the aforesaid order, a supplementary affidavit has been filed on behalf of the petitioners duly sworn by Sri Dhananjay Jaiswal who is petitioner no.2 in the present petition.

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It is stated in paragraph 6 of the affidavit that petitioners undertake to vacate the premises in question and prays for one year time for the aforesaid purpose. The paragraph 6 of the affidavit is reproduced below:-

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"6. That in view of the facts stated above, it is expedient in the interest of justice that this Hon"ble Court may kindly be pleased to allow the petitioners to stay in the accommodation in question over the property for one year and after completion of aforesaid period as determined by this Hon'ble Court the petitioners under takes to vacate the premises in question and hand over the same to the landlord/plaintiff/respondent-Shri Chandra."

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Along with aforesaid affidavit, another affidavit has also been filed which runs at page 6-7 to this affidavit which is also sworn by Sri Dhananjay Jaiswal/petitioner No.2. It is stated in paragraph 5 & 6 of the affidavit that the petitioners will vacate the premises in question and prays for one year time to manage other house.

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Learned counsel for the respondents have no objection, if the petitioners will vacate the premises in question within a year.

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Considering the fact that petitioner will vacate the premises within a period of one from today i.e., 09.08.2023 to 08.08.2024, with following condition;

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(i) Defendant-petitioner is directed to file affidavit within two weeks from today

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before Court below to vacate the house in question within the time given by the Court;

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(ii) Defendant-petitioner is directed to deposit all decretal amount within four weeks from today before Court below. In case, any amount is already deposited, same shall be adjusted against the decretal amount;

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(iii) Defendant-petitioner is also directed to pay rent of house in question on month to month basis on or before 7th day of every month till the vacation of house in terms of first two conditions;

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(iv) In case of failure of fulfillment of any conditions so imposed by the Court, this order would lost the effect and plaintiff- respondent is at liberty to proceed against the defendant- petitioner in accordance with law.

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With the aforesaid observations, petition is disposed of.

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It is made clear that no liberty is given to the petitioner to file fresh petition for the very same cause of action.

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Order Date :- 9.8.2023 saqlain

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Digitally signed by :- SYED MOHAMMAD SAQLAIN HAIDER High Court of Judicature at Allahabad

Surmila Devi and 2 Others v. Shri Chandra and 2 Others

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Surmila Devi and 2 Others v. Shri Chandra and 2 Others

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