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2008 Supreme(All) 2354
[2009(1) ADJ 182]
ALLAHABAD HIGH COURT
BEFORE : V.K. SHUKLA, J.
CHANDRA PAL .........Petitioner
Versus
PRESCRIBED AUTHORITY, ETAH AND ANOTHER ......Respondents
(Civil Misc. Writ Petition No. 15336 of 1989 Connected with Civil Misc.
Contempt Petition No. 258 of 2007, decided on 20th October, 2008)
Counsel :
R.N. Singh, S.K. Singh, V.K. Singh, M.N. Singh and Mahesh Narain Singh for the Petitioner; P.C. Sharma, Himanshu Upadhyay, S.C. for the Respondents.
Headnote:(A) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972—Sections 23 and 34—U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972—Rule 22(f)—Code of Civil Procedure, 1908—Section 151—Eviction of `P' in execution of order for release, in execution proceedings under Section 23—Application for restoration etc. filed by `P', under Section 34 of U.P. Act No. XIII of 1972 read with Rule 22(f) of 1972 Rules read with Section 151 of C.P.C.—On ground that he has been wrongly evicted, as he was tenant and decree was not against him, etc. etc.—His pleas belied from his own pleadings taken by him in earlier suit—Prescribed Authority committed no legal error in rejecting his application—Powers under Sections 23 and 34 read with Rule 22(f)—Ambit for exercise of—Elaborated. [Paras 10 and 11]
(B) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972—Sections 36, 37 and 38—Bar contained in Section 36—Does not totally exclude Civil Court's jurisdiction—It is limited to cases in which jurisdiction under the Act has been properly exercised—If it is established that order passed by authority under the Act is beyond its jurisdiction or in excess of jurisdiction—Civil Court can exercise jurisdiction—Relevancy of Sections 37 and 38—Considered. [Para 15]
(C) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972—Sections 3(a), 3(g), 3(j), 21 and 23—Jurisdiction of authorities under the Act—Clarified, keeping in view intention being the Act and Scheme regarding regulation of letting, rent and eviction etc. [Para 16]
(D) Code of Civil Procedure, 1908—Section 11, Explanation VIII—Res-judicata—Applicability—Finding recorded by authority under U.P. Act 13 of 1972—Giving on status of a party—Not barred by res-judicata, because it has no jurisdiction to declare status. [Para 17]
(E) Code of Civil Procedure, 1908—Order XXIII, Rule 3-A—Compromise decree therein—Cannot be read in isolation—It is not applicable to person who is not a party to suit in which compromise was entered into—As such, suit for setting aside compromise by person who was not party to it—Maintainable. [Para 18]
Hon’ble V.K. Shukla, J.—Present writ petition has been filed questioning the validity of the orders dated 20.5.1985, 8.5.1989 and 23.5.1989 passed by the Prescribed Authority Etah non-suiting the interest of the petitioner qua premises in question.
2. Brief background of the case is that Rajendra Kumar Jain proceeded to file application under Section 21(1)(a) of U.P. Act No. 13 of 1972 against Suraj Prasad mentioning therein that decree of ejectment be passed. In the said proceeding so undertaken, on 19.8.1982 parties to the dispute entered appearance and entered into compromise mentioning therein that building in question is in dilapidated condition and as such same may be demolished and reconstruction may be carried there. Said compromise was entered and decree was passed immediately on the basis of the compromise on 19.8.1982. Said decree in question was not placed for execution and Rajendra Kumar Jain ultimately moved an application for execution being Misc. Application No. 2 of 1988 wherein service on respondents was presumed to be sufficient on 30.5.1988. Thereafter Form-D was issued on 8.5.1989 itself and possession was taken from the petitioner by force, it has been alleged by the petitioner. Petitioner claimed that he was occupying shop in question before 1970 as tenant, after eviction of Suraj Prasad, referred to above. The shop in question was taken on rent by the petitioner at Rs. 12/- per month and he was regularly paying the rent to Smt. Bhodevi Kunwar, mother of respondent No. 2. Petitioner has also contended that in the year 1987, he has sensed that eviction was being planned by the landlord, then he filed Original Suit No. 618 of 1987 in the Court of Munsif, Etah and therein petitioner claims that order of status quo was passed on 30.5.1988. Petitioner has contended that in spite of said injunction being there, on the strength of the order passed in Execution Case No. 2 of 1988 he was thrown out from the premises in question and in this background he moved an application under Section 34 read with Rule 22 (f) of U.P. Act No. 13 of 1972 read with Section 151, C.P.C. on 9.5.1989. Against the application moved on 9.5.1989, Rajendra Kumar Jain filed an objection on 10.5.1989. In the said case request was made for summoning of the documents of the Original Suit No. 618 of 1987, sales tax papers etc. to prima facie prove tenancy right qua the shop in question. Said documents had been summoned. The Prescribed Authority passed order rejecting application moved on behalf of the petitioner. At this juncture present writ petition has been filed questioning the orders dated 23.5.1989 and orders dated 28.4.1989 and 8.5.1989 passed by Prescribed Authority, Etah.
3. Counter affidavit has been filed contending therein that Suraj Prasad was the tenant, who agreed to vacate the premises in question and thereafter, as premises in question was not vacated, then order in question was put to execution and Parwana Dakhal was issued. It has been further stated that godown was 100 years old and was in dilapidated condition and as such it was demolished in the year 1989. In respect of application moved on behalf of the petitioner, it has been rightly rejected on merit. It has also been stated that petitioner was tenant in another Kothari which had fallen down in the year 1982, which petitioner had admitted in Original Suit No. 451 of 1971 (Prakash Chand Jain and others v. Rajendra Kumar Jain and others). It has been stated that claim of the petitioner is unsustainable on the face of it and in this background writ petition is liable to be dismissed.
4. Rejoinder affidavit has been filed disputing the averments mentioned in the counter affidavit and copy of the assessment register has been sought to be brought on record to show and substantiate that tenancy was subsisting there.
5. Supplementary affidavit had also been filed bringing on record, copy of the plaint, copy of the written statement, copy of the replica, copy of the repor
