Kailash Narain Agnihotri vs Distt.Judge,Kanpur City & Ors.

S.U. Khan, J.—List revised. No one appears for the respondents.

Heard learned Counsel for the petitioner. Landlordpetitioner filed an application for release under Section 16 of U.P. Act No. 13 of 1972 before R.C. & E.O./A.D.M. (Finance & Revenue), Kanpur Nagar in respect of property in dispute which is a shop. The case was registered as Case No. 91 of 1988, Kailash Narain Agnihotri v. Babu Lal. In the said application it was stated that original tenant Babu Lal had died and Chedi Lal who was not heir of Babu Lal had occupied the shop in dispute hence it was legally vacant. The release application was rejected by A.D.M. (Finance & Revenue) through judgment and order dated 26 101990 holding that Chedi Lal being sister''s son of Babu Lal inherited the tenancy as Babu Lal had no issue. R.C. & E.O. further held that Chedi Lal was helping Babu Ram in the business during his life time.

Against the judgment and order dated 26101990 landlord filed restoration application alleging therein that he was not aware about the date fixed in the case as that was not communicated to him hence he could not appear when the arguments were heard and matter was decided. Restoration application was rejected by five line order on 1421992 by R.C. & E.O. on the ground of delay (restoration application was filed on 2711992). Copy of the restoration application is Annexure5 and copy of the affidavit filed in support thereof is Annexure6 to the writ petition. In the said affidavit it was stated that on 2311992 petitioner came to know that the case had been decided. Restoration application was filed within four days therefrom. Meanwhile on 2611992 Courts must have remained closed due to Republic Day. Against order of R.C. & E.O. rejecting restoration application dated 1421992 revision was filed by the petitioner being Rent Revision No. 185 of 1992. District Judge Kanpur Nagar through judgment and order dated 3011993 dismissed the revision hence this writ petition.

Revisional Court held that revision was not maintainable.

In my opinion R.C. & E.O. was not justified in rejecting the restoration application on the ground that it was belated. Sufficient explanation of delay had been given by the petitioner. Even otherwise in restoration matters Courts should normally be liberal. No benefit could have accrued to the landlord by deliberately avoiding the proceedings, which were initiated by landlord himself. He was not in possession.

Accordingly, writ petition is allowed. Orders dated 1421992 and 26101990 passed by R.C. & E.O. are set aside. Matter is remanded to the R.C. & E.O. to decide the question of vacancy afresh after hearing both the parties. As no one has appeared for respondent No. 3 Chedi Lal hence before proceeding further R.C. & E.O. must ensure service of notice upon Chedi Lal.