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Judgment
Alok Singh, J.—Petitions under Article 227 of the Constitution of India were filed by the tenants/petitioners through Shri R.S. Sammal, Advocate assailing the eviction order/judgment passed by the Appellant Court, however, on 29th April, 2014, when petitions were taken up for hearing, Mr. R.S. Sammal, Advocate, the then counsel for the tenants sought permission to withdraw the petitions with request to grant time to vacate the building, in question, and to hand over peaceful vacant possession to the landlord. All the petitions were disposed of with the consent of learned counsel for the parties vide judgment dated 29th April, 2014 granting time till 30th April, 2015 to hand over peaceful vacant possession to the landlord.
Now, recall applications are moved through new counsel Shri Mohd. Umar taking new ground that eviction proceeding u/s 21 of the U.P. Act No. 13 of 1972 was not maintainable in view of the fact that landlord is a Bank and landlord ought to have filed Simpliciter suit for eviction on the ground of termination of tenancy at will.
Mr. T.A. Khan, learned Senior Advocate assisted by Mr. Mohd. Umar, counsel for the tenants/applicants fairly stated that plea of non application of U.P. Act No. 13 of 1972 was not taken either before the Trial Court or before the Appellate Court or before this Court in the petitions under Article 227 of the Constitution of India. He, however, contends that this plea was not in the knowledge of the tenants as well as counsel appearing for the tenants before the Trial Court as well as before the Appellate Court and thereafter appearing before this Court; therefore, plea could not be taken.
Since writ petitions were disposed of with the consent of both the parties with liberty to the tenants to hand over peaceful vacant possession on or before 15th April, 2015, I do not find any good ground to recall the consent order dated 29th April, 2014.
The judgment cited by Mr. T.A. Khan, Senior Advocate for the applicants in the case of Jet Ply Wood Private Ltd. and Another Vs. Madhukar Nowlakha and Others, does not attract in the facts and circumstances of the present case in view of the fact that in the judgment of Jet Ply Wood (P) Ltd. (Supra), suit was permitted to be withdrawn without liberty to file fresh. Thereafter, application for recall was moved seeking permission to withdraw the suit with liberty to file fresh.
In the present case suit was never withdrawn rather petitions under Article 227 of the Constitution of India were withdrawn with open mind with further liberty to hand over actual physical vacant possession to the landlord on or before 30th April, 2015. Therefore, I do not find any reasons to recall the consent order.
All the recall applications are mis-conceived and are hereby dismissed.