Chandan Singh vs The Prescribed Authority and Others

M.P. Mehrotia, J.—This petition arises out of the proceedings which took place u/s 21 of the U.P. Act No. XIII of 1972. It is not necessary to state the facts in detail because the controversy is a very short one. The landlords, namely, the Respondents Nos. 2 and 3, filed an application u/s 21 of the Act, seeking the release of the accommodation in dispute. The application was filed against the Petitioner who is the tenant. This application was allowed ex-parte and thereafter, an application was given to set aside the ex-parte order. It seems that the application was headed as one u/s 32 of the U.P. Act No. XIII of 1972. It was rejected by the Prescribed Authority by his order dated 24-1-198], a certified copy of which is on the record. The application was rejected merely on the ground that there is no provision u/s 32 of the said Act for setting aside the ex-parte order. Thereafter, an application was given praying that the said order should be recalled as due to inadvertance Section 32 was mentioned in the application, what was really meant was Rule 32 of the rules framed under the said Act. This application was also rejected by the Prescribed Authority by his order dated 31-1-1981 and a true copy of which is Annexure 6 to the petition. The application was held not maintainable on the ground that the earlier order had been based on merits.

Feeling aggrieved the Petitioner has now come up in the instant petition and in support thereof, I have heard Sri H. S. Joshi, learned Counsel for the Petitioner and in opposition, Sri Sudhir Agarwal, has made his submissions.

Sri Joshi, contended that it is a well known proposition of law that the wrong mention of a provision of law does not disentitled a litigant from getting the necessary relief. In the instant case, due to typographical error, Section 32 was mentioned whereas what was really meant was Rule 32 of the Rules framed under the Act. In this situation, learned Counsel for the Petitioner contended that the controversy as to whether exparte order should or should not be set aside, was not really considered on merits and the application for restoration was rejected on an wholly extraneous ground. Sri Sudhir Agarwal, learned Counsel for the landlord, contended that the conduct of the Petitioner in the release proceedings was such that he was not entitled to invoke the equitable jurisdiction under Article 226 of the Constitution. In my view, the Petitioner''s case is tenable and this petition deserves to be allowed. It was for the Prescribed Authority to decide whether sufficient grounds existed or not for setting the exparte order. I sitting in this jurisdiction, cannot do that exercise. The Prescribed Authority was undoubtedly wrong in rejecting the application merely on the ground that wrong section had been mentioned therein.

Accordingly, I allow this petition and quash the order dated 24-1-1981 whereby the said restoration application of the Petitioner was rejected. I also quash the subsequent order dated 31-1-1981 which has been referred to above. The restoration application shall now be considered by the Prescribed Authority on its own merits treating the same to be under Rule 32 of the rules framed under the Act. There shall be no order as to costs.