Mohan Sharma Vs Dhananjaya Kumar Sharma and Another

Neutral Citation No. - 2024:AHC-LKO:10752

Court No. - 5

Case :- MATTERS UNDER ARTICLE 227 No. - 524 of 2024 Petitioner :- Mohan Sharma Respondent :- Dhananjaya Kumar Sharma And Another Counsel for Petitioner :- Pritish Kumar,Amal Rastogi Counsel for Respondent :- Jatin Raheja,Shakti Kumar Sharma,Shobhit Harsh

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Hon'ble Abdul Moin,J.

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Vakalatnama filed today by Shri Vijay Bahadur Verma, learned counsel for the respondent no. 1 is taken on record.

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Learned counsel for the petitioner states that he does not intend to file any rejoinder affidavit.

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Heard Shri Pritish Kumar, learned counsel for the petitioner and Shri Vijay Bahadur Verma, who has filed his vakalatnama today, alongwith Shri Shakti Kumar Sharma, learned counsels appearing for the respondent no. 1.

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No notice be issued to respondent no. 2 taking into consideration the nature of order proposed to be passed.

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With the consent of learned counsel appearing for the contesting parties, the writ petition is being finally decided.

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Under challenge is the order dated 19.01.2024, a copy of which is annexure 1 to the petition, whereby the application for interim relief numbered as C-6 filed by the appellant in Rent Appeal No. 40 of 2023 in re: Mohan Sharma vs Dhananjaya Sharma and others has been rejected.

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The contention of learned counsel for the petitioner is that the aforesaid appeal is still pending for consideration. During the pendency of appeal he filed an application for stay of the order impugned which has been rejected by the learned court below by contending that the judgements of Hon'ble Apex Court over

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which reliance was placed by learned counsel for the appellant / petitioner herein to contend that during pendency of the appeal the operation of the order should be stayed, are not applicable on the ground that the judgements of Mool Chand Yadav and others vs Raza Buland Sugar Co. Ltd, Rampur and others, 1983 L.C.D. (S.C.), Radha Rani Cold Storage Pvt Ltd vs U.P. State Cold Storage Tribunal, 2009 (27) LCD 1391, Bhagwan Shanker Bajpayee vs District Judge, Kanpur Nagar and others, 2009 (27) LCD 885 do not deal with the situation in hand in as much as none of those cases deal with an appeal filed under Section 22 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and thus there is no occasion for passing of any interim order.

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It is thus contended that the order impugned reflects patent non application of judicial mind on the part of the appellate court and as such on this ground alone the order impugned merit to be set aside more particularly when it is the principle of law which has been decided in all the aforesaid cases irrespective of the section in which the case has been filed.

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On the other hand, Shri Vijay Bahadur Verma, learned counsel for the respondent no. 1 states that the trial court itself took a period of 14 years to decide the matter and now on one pretext or the other, the appellant is seeking adjournment before the trial court and thus the order impugned has correctly been passed by learned appellate court while rejecting the application for stay.

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Having heard learned counsel for the parties and having perused the record what emerges is that the only reason which has prevailed on learned trial court while rejecting the application for stay filed by the appellant is that the judgements of Hon'ble Apex Court, which have categorically held that a

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judicial approach requires that during the pendency of appeal the operation of an order having serious civil consequences must be suspended, have not been appreciated by the appellate court solely on the ground that none of the said judgements pertain to an appeal filed under section 22 of the Act, 1972. Obviously there cannot be a strait jacket formula to be followed in as much as in case a principle of law has been laid down the same would not be dependent on the facts of the case in which the judgement has been passed rather it is a principle of law which has been enumerated and laid down by the Hon'ble Supreme Court. However, this fact has not been appreciated by learned appellate court while rejecting the application for stay.

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However, considering that the appeal is pending before the court below the instant writ petition is disposed of with a direction to the appellate court to make an endeavor to decide the appeal pending before it after hearing all the parties concerned within a period of three months from the date of receipt of a certified copy of this order provided there is no legal impediment.

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Till then status quo as of today shall be maintained pertaining to the premises in dispute by all the concerned parties.

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It is also provided that in case the appellant herein or his advocate seeks any adjournment before the court below on any pretext whatsoever then this order shall stand automatically vacated without prejudice to the appellate court in hearing and deciding the appeal.

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Order Date :- 6.2.2024 J.K. Dinkar

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

Mohan Sharma v. Dhananjaya Kumar Sharma and Another

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Mohan Sharma v. Dhananjaya Kumar Sharma and Another

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