Jai Prakash Srivastav vs Suneeta Agrawal

Manoj Misra, J.—Heard learned counsel for the petitioners and Sri Manish Tandon for the respondents.

The present petition challenges a remand order dated 3.3.2017 passed by Additional District Judge, Court No. 1, Kanpur Nagar in Rent Revision No. 42 of 2016, under section 18 of U.P. Act No. 13 of 1972, by which the release order dated 27.8.2016 passed in favour of the petitioners was set aside and the matter has been remanded back to the Rent Control and Eviction Officer to pass a fresh order after giving opportunity of hearing to the parties concerned.

The brief facts giving rise to the present petition are as follows: in respect of the disputed accommodation, an application for release was filed in the year 2010 by the respondents 1 and 2. On the said application, in the year 2012, the accommodation in dispute was declared vacant. Thereafter by order dated 30.8.2012, the accommodation was released in favour of the respondents 1 and 2 against which the tenant filed a review application under section 16(5) of U.P. Act No. 13 of 1972 which was dismissed against which a revision was preferred by the occupying tenant which was allowed and the matter was remanded back. Thereafter, by order dated 11.8.2016 the premises was declared vacant. In the meantime, in the year 2012, Jai Prakash Srivastava (petitioner no. 1), had also filed a release application for releasing the accommodation in his favour. Thereafter, upon remand, the petitioners Jai Prakash Srivastava, Ramesh Chandra Srivastava and Satish Srivastava, on 26.8.2016, jointly filed a release application for release of the accommodation in question. By order dated 27.8.2016, the release application of the respondents 1 and 2 was rejected and the release application of the petitioners was allowed by Rent Control and Eviction Officer against which the respondents 1 and 2 filed Rent Revision No. 42 of 2016 which has been allowed by the impugned order.

A perusal of the record would reveal that the fresh release application was filed by the petitioners on 26.8.2016 and the same was finally allowed on 27.8.2016.

In the rent revision, the petitioners took a plea that their pending release application has not been accorded due consideration and in any case they were not given due opportunity of hearing to contest the release application filed by the petitioners. It was claimed that not even copy of the release application was served on the respondents 1 and 2 and straightway it was allowed. The revisional court examined the order sheet and found that in the order sheet it was noted that on 27.8.2016 a detailed type written order has been passed which has been placed on the record. On the basis of the aforesaid note made in the order sheet, the revisional court inferred that the order on the release application was separately passed whereas the order sheet disclosing that the parties were heard was entered subsequently. Thus, relying on the aforesaid intrinsic circumstance as also the claim of the respondents that they were not given opportunity of hearing to contest the release application of the petitioners, the rent revision was allowed and the matter was remanded back.

Learned counsel for the petitioners has assailed the order passed by the revisional court on the ground that the finding returned by the revisional court that the other side was not heard is manifestly erroneous because the release order which has been passed accord consideration to both the release applications i.e. the release application filed by the respondents as well as the release application filed by the petitioners. It has been submitted that in the release order specifically it has been stated that counsel of both sides have been heard. It has been submitted that the view taken by the revisional court that the other side was not heard in the proceeding is manifestly erroneous and therefore the order passed by the revisional court is liable to be set aside.

Learned counsel for the respondents has submitted that the very fact that the release application was filed on 26.8.2016 and was decided on 27.8.2017 would go to show that there was no opportunity given to the other side to rebut the case taken in the release proceeding initiated by application dated 26.8.2016. It has been submitted that the respondents were not given due opportunity of hearing to contest the proceeding despite the fact that their release application had remained pending since the year 2010. It has been submitted that if they had been given opportunity to contest the proceeding then they would have definitely brought material on record to show that their need was bona fide.

I have given thoughtful consideration to the submissions of learned counsel for the parties.

This Court is of the view that since the release application of the respondents 1 and 2 had remained pending since the year 2010 and thereafter the vacancy of the accommodation was declared, they ought to have had time to file material/evidence on record to disclose that their need was bona fide for the premises in comparison to the other applicants who had presented joint application on 26.08.2016. The court finds that the matter was litigated by the occupying tenant on the question of vacancy and the said question came to be settled by order dated 11.8.2016. From the record, it is not clear that any opportunity was given to the respondent, whose release application had been pending from before, to bring any material document on record to substantiate his need, whereas fresh release application was filed by the petitioners on 26.08.2016 and straight away on 27.08.2016 the same was allowed. Under the circumstances, the court below was justified in remanding the matter for according fresh consideration to the rival release applications after giving due opportunity of hearing to the parties.

In view of above, this Court finds no good reason to interfere with the order passed by the revisional court.

The petition is dismissed.