IMPORTANT POINTS
Finding on the issue of title recorded by the Small Cause Court does not operate as res judicata.
If at the time of hearing an issue was not taken, the court cannot deal with it.
No allegation against any person can be entertained behind his back without impleading him.
Law does not permit two contradictory and inconsistent orders in the same case in respect of the same subject matter.

ORDER

Dr. B.S. Chauhan, J. —

1. Delay condoned.

2. The application for permission to appear in person and argue is allowed.

3. Facts and circumstances giving rise to the case are as follows:

(A) Irtiza Hussain, Zaheeda Khatoon and Murtuza Hussain (hereinafter referred to as ‘respondents’), were the original plaintiffs in Small Cause Case No. 41 of 1974 under Section 21 (1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter called the Act 1972). Nirmal Jeet Singh Hoon, (hereinafter referred to as ‘petitioner’), was defendant No. 3 in the above-mentioned case which was Suit for ejectment and arrears of rent filed by the respondents/plaintiffs. The case of the plaintiffs/respondents was that defendant no. 1, namely, Shri Ram Prasad (dead-nothing on record to show as to whether his legal heirs had been substituted) and defendant no. 2, namely, M/s United Hotels Pvt. Ltd., had illegally sub-let the suit property to the petitioner; and defendants had also refused to pay the amount due as rent and they should, therefore, be evicted from the suit property.

(B) Smt. Sarvari Khatoon, Plaintiff no. 4 in Small Cause Case No. 41 of 1974 died during the pendency of the Suit and her right, title and interest in the suit property vested in her children i.e. the respondents, who were also the co-plaintiffs before the trial court.

(C) The case of all the defendants including the petitioner was that they did not sub-let the property to the petitioner. All the defendants also contended that they were entitled to a reduction in rent as the plaintiffs were illegally in occupation of large parts of the suit property. The petitioner denied the plaintiffs’ claims and in his written statement, he submitted that no proper notice under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as ‘TP Act’), had been issued to him and so he could not be evicted. The petitioner also questioned the jurisdiction of the court to entertain the suit and stated that the respondents had illegally sold part of the suit property to a third party, so were not entitled to any relief.

(D) In view of the pleadings taken by the parties in the Small Cause Court, the court framed 29 issues and the parties led evidence on the said issues. The court after appreciating the evidence decreed the Suit, vide judgment and decree dated 22.8.2008 against the defendants with cost for ejectment, arrears of rent, restoration of the items of furniture, crockery and cutlery and the defendants were further directed to pay pendent lite and future mesne profits till the date of actual delivery of possession of the suit property. Further, it was held that petitioner was not a sub-tenant in possession of the property and defendant nos. 1 and 2 were in exclusive possession of the premises.

(E) The High Court of Uttarakhand at Nainital vide judgment and order dated 23.7.2009 dismissed the Revision Petition filed by the petitioner and upheld the decree of the Small Cause court. The High Court confined its judgment to the questions of arrears of rent and sub-letting. The High Court held that the trial court had jurisdiction to entertain the suit; notice was served on all the parties in accordance with the provisions of Section 106 of the TP Act. The High Court also agreed with the findings of the trial court with respect to the questions relating to the arrears of rent.

(F) Aggrieved by the decision of the High Court, petitioner filed Review Petition No. 633 of 2009. The said Review Petition was heard in the absence of the petitioner, as he did not appear, and dismissed vide order dated 2.9.2009 by a speaking and reasoned order.

(G) Subsequent to the retirement of the Chief Justice of the High Court (who had heard the afore-mentioned Revision Application and the Review Petition), petitioner filed a Recall Application (M.C.C. No. 711 of 2009), wherein he raised the issue of the propriety of the ex-parte dismissal of his Review Petition and