Mahendra Kumar Jain vs Prescribed Authority (Rent Control)/Munsif Sitapur and others

Hari Nath Tilhari, J.—By this petition, the petitioner has challenged the order dated 2451986, passed by Shri S. K. Tripathi, Prescribed Authority (Rent Control), Munsif, Sitapur, whereby the Prescribed Authority has rejected the petitioner''s application for substitution, namely, application No. 48 Ga and 61 Ka and allowed the substitution of the names of opposite parties 3 and 4 in place of Smt. Jamura Devi (deceased.)

Brief facts of the case are that one Smt. Jamuna Devi had moved an application under Section 21(1)(a), U. P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act (U, P. Act No. XIII of 1972) hereinafter called as the Act. The application for release was pending and during the pendency of the application, Smt. Jamuna Devi, had died. On account of death of Smt. Jamuna Devi, the application for substitution had to be moved. An application 48 Ka had been moved by one Jayanti Prasad i. e. opposite party No. 2 to the writ petition claiming himself to be the heir of Smt. Jamuna Devi on the basis of a will alleged to have been executed by Smt. Jamuna Devi in his favour. The second application i. e. application 53 Ka had been moved by opposite parties 3 and 4 to the present writ petition who asserted that they were the heirs of Smt. Jamuna Devi being the sons of the brother of the husband of Smt. Jamuna Devi, as has already peen mentioned in the pedigree, as mentioned in the application and referred to in the judgment of the Prescribed Authority.

Opposite parties 3 and 4 further claimed themselves to be entitled to the property left by Smt. Jamuna Devi as well as to be substituted in place of Smt. Jamuna Devi on the basis of a registered will that opposite parties 3 and 4 alleged, to have been executed in their favour by Smt. Jamuna Devi. The third application for substitution 61 Ka had been moved by the present petitioner Mahendra Kumar Jain who had also claimed himself to be entitled to succeed the property of Smt. Jamuna Devi on the basis of certain will which is alleged to have been executed by Smt. Jamuna Devi in his favour.

On 1651986, the case was listed for proceeding and orders on application of substitution and the Prescribed Authority i. e. opposite party No. 1 passed an order to the effect that case having been called out for several times but learned Counsel for the parties every moment prayes for time being granted. Sufficient time has already been granted and that the application for substitution is pending since long but no evidence has been produced. The opportunity of production for oral evidence is closed. The application for substitution shall be decided on the basis of the affidavit filed alongwith the substitution application and fixed May 214 1986 for orders

On 1651986, the present petitioner made an application to the effect that when the case was called Up for producing the evidence, he along with witnesses was present. He also mentioned that the written evidence is already on record. It was further mentioned therein that other objectors (Apattikartagan) Smt. Jayanti Prasad and Chandra Bhal were not present nor was any evidence available on their behalf but the applicant i. e. the present petitioner was present with his evidence for being produced. Applicant Mahendra Kumar has further asserted that on account of some confusion alongwith other absent objectors, the applicant i. e. present petitioner''s evidence had also been closed though the witnesses were present and if he is not allowed to produce his evidence he will not be able to prove his right and will suffer irreparably. Therefore he prayed that the order dated 1651986 may be modified to this extent that the applicant Mahendra Kumar (present petitioner) be allowed to produce his evidence or examine his evidence alongwith his application. He had also attached a medical certificate dated 4th June, 1984 issued by Dr. S. Kumar to Sri Mahendra Kumar Jain and mentioned in the application that delay in producing that certificate may be condoned. It appears that on some earlier date, the petitioner Mahendra Kumar Jain was required to produce some medical certificate which he could not produce in time and which he was producing alongwith his application, so prayed for condonation of delay but the Prescribed Authority as mentioned in para 16 of the writ petition rejected the application of the petitionerapplicant for being allowed to produce his evidence on 1651986 by a very short order which has been quoted in paragraph 16 and which reads as under :

"No sufficient ground. Rejected."

Thereafter by order dated 2451986, the Prescribed Authority (Munsif, Sitapur), ordered for substitution of the names of opposite parties 3 and 4 in place of Smt. Jamuna Devi in that case, under Section 21 of the Act, and feeling aggrieved from this order dated 2451986, the petitioner filed, the instant writ petition under Article 226 of the Constitution of India.

The Counter affidavit as well as rejoinderaffidavit have been filed.

I have heard Sri Ratan Kant Sharma on behalf of the petitioner and Shri Hari Shanker Sahai on behalf of the opposite parties who had really contested the matter.

Shri Ratan Kant Sharma submitted that the petitioner was deprived of opportunity of producing the evidence simply on account of confusion caused due to absence of the parties, except that of the petitioner and the Court instead of closing the evidence of other parties closed the evidence of the petitioner witnesses and passed the order for substitution. Shri Sharma submitted that on 1651986 when order for closure of evidence having been passed the petitioner''s counsel made request that petitioner be allowed to produce the evidence but when the oral request was not accepted then a written application on that very day was moved which is Annexure No. 2 to the writ petition and the contents of which has been quoted earlier by me.

The application i. e. application as per allegations has been rejected by a Stereotype order :

�No sufficient cause shown. Rejected."

The order as quoted in paragraph 16, which has not been denied, also shows that it has been passed without applying mind to the contents of the application which was rejected by the Prescribed Authority. The Prescribed Authority has not said in its order that the allegation of the petitioner in the application that he was present for oral evidence to be produced was wrong or incorrect when it had passed the order of closure of evidence. The Judicial Authority while passing order involving civil consequences or having tendency to deprive a party of opportunity of producing the evidence or rejecting the application for permission to produce evidence are expected to pass reasoned order after having applied mind to the allegations made in the application, whether those allegations are correct or not that has also got to be considered. The order does not indicate that the allegations made in the application were denied by opposite parties so those allegations have to be taken to be correct as has been asserted by the applicant that applicant was present with his evidence but for some confusion of the like alongwith other his evidence was also closed, and thereafter without giving any opportunity of producing any evidence to the petitioner which the petitioner wanted to produce the Prescribed Authority bad passed the order rejecting his application.

The Prescribed Authority should have considered one aspect that if it would have modified that order and allowed to produce evidence on 1651986 or on some other date before 21586 heaven would not have fallen instead the delay in disposal of the release application could have been avoided. It indicates a lack of sense of comprehension. Anyway, rule of technicality or techanicalities are not to be allowed to create obstructions in the course of justice. Considering this aspect of the matter when I find that the allegation of paragraph 16 of the writ petition about the nature of the order and the order passed on application dated 16586 have not been controverted, I take that the order that was passed on 16586 was only rejection of application in stereo type manner such order is liable to be quashed to set aside thereof only the purpose is not going to be served until the order of substitution which has been passed without giving any opportunity of producing the evidence is quashed. As mentioned earlier, as the order of substitution has been passed after having deprived the petitioner of proper opportunity of producing the evidence irrespective of the fact that he was present alongwith his evidence but for some confusion of the Court arising from absence of other parties or their Counsel, keeping the trite principle of law that no party should suffer for making any fault or confusion of the Court or its staff, in view, I hold that order contained in Annexure Nos. 1 and 3 are illegal and bad in law and suffer from error of law apparent on the face of record as well as of jurisdiction.

Thus having considered, I hereby allow the writ petition, by issuing a writ of certiorari, quashing the order dated 1651986 i. e. by which the oral evidence of the parties had been closed. The order passed on application Annexure No. 2 and quoted in paragraph 16 is also quashed. Order dated 1961986 passed by the opposite party No. 1 and dated 24586 as a consequence of my above observation is also being quashed, by a writ of certiorari. The application for substitution shall be considered afresh and, as such, a further direction is being issued to the Prescribed Authority i. e. opposite party No. 1 to consider and dispose of all the substitution applications simultaneously after having recorded the oral evidence of the parties who have moved an application for substitution. Let the parties appear before the Prescribed Authority (Munsif Sitapur) on 10th December, 1993 for attendance and on that date, the Munsif Sitapur shall fix some date for production of evidence by the applicant as well as opposite parties 3 to 5. The Munsif shall issue a notice of the date to opposite parties 3 to 5 if they are not present before him on 10th December, 1993 as none has put in appearance on their behalf in this Court. Thus the writ petition is allowed with costs.

It is expected, with the active cooperation of the parties, the Prescribed Authority shall dispose of application for substitution within a period of not more than six months.