Omkar Nath Srivastava vs District Judge, Barabanki and others

Anil Kumar,J.

Heard Sri Ravindra Pratap Singh, learned counsel for the petitioner, Sri C.B. Pandey, learned Standing Counsel on behalf of respondent nos. 1 & 2 and Sri D.C. Jain, learned counsel appearing on behalf of respondent no. 3.

With the consent of the parties'' counsel who are present today, the writ petition is disposed of finally.

In brief the facts of the present case to the effect that the controversy which is involved in the present case relates to the premises as House No. Q/690, Mohalla Qanoongoyan, City Nawabganj, District Barabanki to which respondent no. 3/coowner/landlord filed an application for release under Section 21(1A) of the U.P. Act no. 13 of 1972 before the Prescribed Authority/Civil Judge(Senior Division), Barabanki on the ground of personal need. Accordingly, a case was registered as PA No. 3 of 2001 (B. N. Verma Vs. Omkar Nath Srivastava and others), allowed by judgment dated 22.02.2010.

Aggrieved by the said order, the petitioner/tenant in the premises in question has filed an appeal under Section 22 of of U.P. Act no. 13 of 1972 and initially on the same day, the appeal was admitted by the incharge District Judge/appellate authority and an interim order was passed to the effect that the parties were directed to maintain statusquo.

As submitted by the learned counsel for the petitioner that the matter was taken up on 07.04.2010 by the respondent no. 1, District Judge, Barabanki on the said date the impugned order has been passed, hence the present writ petition has been filed thereby challenging the said order.

Sri Ravindra Pratap Singh, learned counsel for the petitioner while assailing the said order submits that the same has been passed suo moto without giving any opportunity of hearing whatsoever to the petitioner and he further submits that once the Incharge/District Judge who is the competent authority admitted and considered the matter in question when the apeal was filed under Section 22 of of U.P. Act no. 13 of 1972 had admitted the same and passed an order of maintaining statusquo dated 27.03.2010, in these circumstances there was no justification or reasons on the part of the respondent no. 1 to modify the said order, so the order under challenge before this Court is arbitrary in nature and violation of principles of natural justice.

Sri D.C. Jain, learned counsel for the respondent no. 3 submits that the respondent no. 1 has got full power and authority to modify the order dated 27.03.2010 passed by the Incharge/District Judge by which the statusquo has been granted in favour of the petitioner/tenant on the ground that in the matter in question the petitioner/tenant has taken adjournment twice in order to linger on the appeal in question, so in these circumstances the impugned order which is under challenge in the present writ petition is perfectly valid, as such the present writ petition filed by the petitioner is liable to be dismissed.

I have heard learned counsel for the parties and gone through the record.

So far as the facts of the present case, it is not disputed by the learned counsel for the parties who are present today that the controversy which is involved in the present case relates to the groundfloor having House No. Q/690, Mohalla Qanoongoyan, City Nawabganj, District Barabanki, to which respondent no. 3/coowner/landlord filed an application for release under Section 21(1A) of the U.P. Act no. 13 of 1972 before the Prescribed Authority/Civil Judge(Senior Division), Barabanki on the ground of personal need. Accordingly, a case was registered as PA No. 3 of 2001 (B. N. Verma Vs. Omkar Nath Srivastava and others), the same was allowed by judgment dated 22.02.2010.

Aggrieved by the same, petitioner/tenant filed a statutory appeal under Section 22 of of U.P. Act no. 13 of 1972 and the respondent no. 2 admitted the same and granted stay order to the effect that the parties are directed to maintain statusquo with certain conditions as submitted by Sri D.C. Jain, learned counsel for the respondent no. 3 that the petitioner/tenant should not take any adjournment.

Further, in the present case as two adjournment has been taken by the petitioner/tenant, so the order which is passed by the respondent no. 1 is perfectily valid.

Accordingly to my opinion the said argument advanced by Sri D.C. Jain is not correct as from the perusal of the record it transpires that the impugned order which is under challenge in the present case, it is clearly established that the same has been passed without providing any opportunity whatsoever to the petitioner.

Needless to mention herein that if any order has been passed without providing any opportunity to the parties'' concerned, then the same is ex parte order, arbitrary in nature and in violation of principles of natural justice.

Coupled with the said fact that in the present case, the appellate authority/Incharge District Judge after considering the facts of the case on merit admitted the appeal filed by the petitioner/tenant and granted a stay order to the effect that the parties are directed to maintain statusquo as exists today with certain conditions, then in these circumstances, the District Judge while considering the matter in question on 07.04.2010 exercised the coordinate power and now even if it is found on the basis of record that the petitioner has taken two adjournment which is against the spirit of the initial order dated 27.03.2010 by which the statusquo was granted in respect to the property in question and appeal was admitted, then in that circumstances the petitioner/tenant should be heard and only thereafter the impugned order shall be passed, but the said thing has not been done in the present case, as such the impugned order in question is violation of principles of natural justice.

Further, in the present case, an application for release under Section 21(1A) of the U.P. Act no. 13 of 1972 before the Prescribed Authority/Civil Judge(Senior Division), Barabanki, has been moved by the ownerlandlord/respondent no. 3 in the year, 2001. So, keeping in view the said fact, in order to balance the equity between the parties, I hearby direct the appellate authority/District Judge, Barabanki to consider and dispose of the appeal pending before him within a period of three months from today as agreed between the parties who are present today. Parties ae also directed that they should not take any unnecessary adjournment.

For the foregoing reasons the impunged order dated 07.04.2010 passed by respondent no. 1, District Judge is quashed.

Writ petition is allowed.

No order as to costs.