Samrunnisa vs Xth Addl. Distt.Judge,Kanpur and Others

A. K. Yog, J.—This petition has been filed by Smt. Samrunnisa against the impugned order and judgment dated 881990 (Annexure VI to the writ petition) passed by Xth Additional District Judge/Respondent No. 1 whereby he allowed the rent Revision No. 111. of 1988 in favour of Respondent No. 3 and the case was directed to be remanded back to the trial Courtdelegated authority for a decision afresh. The Respondent No. 1 allowed the revision on two grounds viz.:

(i) The person who had leased/allotted the properly in favour of the petitioner was the same person who allowed the revision under Section 16 (5) of the Act No. XIII of 1972 (hereinafter called as the Act) and

(ii) The rejoinder affidavit which was filed on 2061988 should not have been taken into account unless opportunity was given to other side. No copy of rejoinderaffidavit was given to Mukhiar Ahmadthe opposite party in the proceeding under Section 16 (S) of the Act No. XIII of 1972.

Heard Sri A.N. Sinha, learned Counsel for the petitioner and Sri MA. Qadeer, learned Counsel appearing on behalf of Respondent No. 3and perused the record.

Without going into the chequered history of the case, this petition is confined to the impugned order of remand. Sri M.A. Qadeer, learned Counsel for the Respondent No. 3, has fairly conceded though he initially vehemently opposed that mere fact that Sir Surendra Singh Sengar was the same person who had allotted the property in favour of the petitioner and also heard the review application under Section 16 (5) of the Act was not a good ground by itself. Apart from that 1 find no such ground in the memo of appeal, a copy of which was placed by learned Counsel for the petitioner for the perusal,

Two grounds on which the remand order is based in regarding filing of rejoinderaffidavit without giving an opportunity to the Respondent No. 3. It is sufficient to mention that if some evidence is not considered and overlooked then the Court below ought to have considered the same and passed final order instead of an order of remand. It was the duty of Revisional Court to consider the material evidence on record and record its ''own findings. The impugned order, cannot be sustained for the reasons given above.

The impugned order dated 881990 (Annexure VI to the writ petition) in Revision No. Ill of 1988 is hereby quashed with the direction to the Revisional Court to decide the case on merit within three months. Considering that the case relate to the year 1988.

I direct that Respondent No. 1 shall decide the revision within three months in accordance with law on the merit on considering the material on record itself. To facilitate the Respondent No. 1 to proceed with the matter in accordance with direction given by the Court, I direct the parties to appear before Respondent No. 1 on 2252000 and inform the presiding officer about the judgment passed by this Court by filing copy of the judgment.

Writ petition stands allowed subject to the directions given above.

Certified copy of the judgment may be given lo the learned Counsel for the parties on or before 1752000 on payment of usual charges. Petition allowed.