Hon’ble Surya Prakash Kesarwani, J.—Heard Sri C.K.Parekh, learned counsel for the defendants-petitioners and Sri Madho Jain, learned counsel for the plaintiffs-respondents/landlord.

Facts :

2. Briefly stated, facts of the present case, are that the plaintiffs-respondents had filed a release application under Section 21(1)(a) of U.P. Act No. 13 of 1972. being P.A. Case No. 90 of 2010 (Ashok Kumar Jain v. Rajendra Kumar Jain and others) in which seven issues were framed by the Prescribed Authority. The Prescribed Authority/Judge Small Cause Court, Agra, decided the issue Nos. 1,2,4,5 and 6 in favour of the plaintiffs-respondents/landlords. The last issue i.e. issue No. 7 “whether non-compliance of the provisions of Order VI Rule 15(4) C.P.C. would render the release application to be not maintainable”, was decided against the plaintiffs and consequently the aforesaid P.A. Case was dismissed.

3. Aggrieved with the judgment of the Prescribed Authority dated 3.6.2013 in the aforesaid P.A. Case No. 90 of 2010, the plaintiffs-respondents/landlords filed a Rent Appeal No. 83 of 2013 (Ashok Kumar Jain v. Rajendra Kumar Malhotra and another), which has been allowed by the impugned judgment dated 25.7.2017. and the P.A. case has been decreed.

4. Aggrieved with the aforesaid judgment in appeal the defendant-petitioner has filed the present writ petition under Article 226 of the Constitution of India.

Submissions

5. Sri C.K. Parekh, learned counsel for the defendants-petitioners submits as under:

(i) By Rule 15 (2) of The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Rules) the provision of Order VI Rule 14 and 15 C.P.C. have been made applicable which is a legislation by reference and therefore, every subsequent amendment in Order VI Rule 15 would be deemed to have been made applicable in Rule 15(2) of the Rules.

(ii) In any case the appeal of the plaintiffs-respondents/landlord before the appellate Court was only against the findings of the trial Court on issue No. 6 i.e. applicability of the provisions of Order VI Rule 15(4) C.P.C. and not on merits of issue Nos. 1,2,4, 5 and 6 which were decided in their favour. Since the suit itself was dismissed by the trial Court and as such the defendant-petitioner could not get an opportunity to assail the order of the Prescribed Authority on the findings on the aforesaid issues. Under the circumstances, the appellate Court should have afforded opportunity of hearing to the defendants-petitioners on these issues before allowing the appeal in totality, in view of the provisions of order XLI Rule 33 C.P.C.

6. In support of his submissions, Sri C.K. Parekh, has referred the provisions of Section 34 of the Act, Rule 15(2) of the Rules and the Provisions of Order VI Rule 15 and Order XLI Rule 33 C.P.C. and relied upon the judgment of Privy Council in Secretary of State for India in Council and Hindusthan Co-operative Insurance Society, Limited, AIR 1931 PC 149, judgments of Hon’ble Supreme Court in The Collector of Customs, Madras v. Nathella Sampathu Chetty and another, AIR 1962 SC 316 (paras 37 to 42), Ram Kirpal Bhagat and others v. State of Bihar, AIR 1970 SC 951 (paras 18 to 20), State of M.P. v. M.V. Narasimhan, (1975) 2 SCC 377 (para 15), Bajaya v. Gopikabai and another, 1978(2) SCC 542 (paras 25 to 27), M Mahindra and Mahindra Ltd. v. Union of India and another, 1979 (2) SCC 529 (paras 8 and 9), Shiv Dutt Rai Fateh Chand and others v. Union of India and another, 1983(3) SCC 529 (para 19), Ujagar Prints(II) v. Union of India, 1989(3) SCC 488 (paras 93 to 95), State of Kerala v. Attsse (Agro Industrial Trading Corpn.), 1989 Supp.(1) SCC 733(3), Rajasthan S.R.T.C. v. Poonam Pahwa, 1997(6) SCC 100 (paras 27,28 and 34), Kulwant Kaur and others v. Gurdian Singh Mann (dead)Lrs. and others, 2001(4) SCC 262 (paras 2, 5, 7, 10, 12, 13, 15, 18, 34 and 36), Nagppur Improvement Trust v. Vasantrao and others, 2002(7) SCC 657 (paras