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2019 Supreme(All) 998
IN THE HIGH COURT OF ALLAHABAD
Yogendra Kumar Srivastava, J.
Ahmad And Another - Appellant
Vs.
Prescribed Authority/A.J.S.C.C.-I, Kanpur Nagar And Others - Respondent
Writ - A No. 8134 of 2019
Decided On : 21-05-2019
Kirti Kumar Nirkhi, Adv., Shobhit Saxena, Adv., Manish Tandon, Adv.
Headnote:
Constitution of India, 1950 – Article 226 – The present petition seeks to challenge the order passed by the Prescribed Authority in Rent Case in terms of which the recall application filed by the respondent-landlord has been allowed and the earlier order has been set aside – The records of the case indicate that against an order allowing the release application filed by the respondent nos. 2 and 3-landlords in proceedings under Section 21 (1) (b) of U.P. Act No. 13 of 1972, and the appellate order, an earlier writ petition, was filed which was allowed – Challenged – Held, In cases where the originals are not necessary, the same may not be called for, unless it is not possible for the applicant to obtain and produce authenticated copies of the same – Every application for calling for the records of any other suit or proceedings from any other Court has to be supported by an affidavit showing: (i) how the records were material to the case in which the application was made, and (ii) that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the records or such portion thereof as the applicant requires or that the production of original records were necessary for the purpose of justice – If bringing on record a document is essential for proving the case by a party, ordinarily the same should not be refused; the Court's duty being to find out the truth – Petitioners has not been able to dispute the aforementioned legal position and has not been able to point out any material error or illegality in the order passed by the court below so as to warrant interference of this Court – Writ petition is devoid of merits and is accordingly dismissed. [Paras 17, 18 and 19]
Facts of the case:
The present petition seeks to challenge the order passed by the Prescribed Authority in Rent Case in terms of which the recall application filed by the respondent-landlord has been allowed and the earlier order has been set aside. The records of the case indicate that against an order allowing the release application filed by the respondent nos. 2 and 3-landlords in proceedings under Section 21 (1) (b) of U.P. Act No. 13 of 1972, and the appellate order, an earlier writ petition, was filed which was allowed vide judgment.
Findings of the case:
In cases where the originals are not necessary, the same may not be called for, unless it is not possible for the applicant to obtain and produce authenticated copies of the same – Every application for calling for the records of any other suit or proceedings from any other Court has to be supported by an affidavit showing: (i) how the records were material to the case in which the application was made, and (ii) that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the records or such portion thereof as the applicant requires or that the production of original records were necessary for the purpose of justice – If bringing on record a document is essential for proving the case by a party, ordinarily the same should not be refused; the Court's duty being to find out the truth – Petitioners has not been able to dispute the aforementioned legal position and has not been able to point out any material error or illegality in the order passed by the court below so as to warrant interference of this Court – Writ petition is devoid of merits and is accordingly dismissed.
Result: Writ petition is devoid of merits and is accordingly dismissed.
JUDGMENT :
Yogendra Kumar Srivastava, J.
Heard Sri K. K. Nirkhi, learned counsel for the petitioners and Sri Manish Tandon, learned counsel for respondent nos. 2, 3 and 4.
2. The present petition seeks to challenge the order dated 18.04.2019 passed by the Prescribed Authority/1st A.J.S.C.C., Kanpur Nagar in Rent Case No. 38 of 2002 (Mohammad Moin and others vs. Ahmad and another) in terms of which the recall application dated 11.1.2019 filed by the respondent-landlord has been allowed and the earlier order dated 03.12.2018 has been set aside.
3. The records of the case indicate that against an order dated 8.4.2005 allowing the release application filed by the respondent nos. 2 and 3-landlords in proceedings under Section 21 (1) (b) of U.P. Act No. 13 of 1972, and the appellate order dated 9.8.2005, an earlier writ petition, Writ-A No. 63745 of 2005 (Ahmad vs. Mohd. Moin and others), was filed which was allowed vide judgment dated 22.1.2014 in the following terms :-
"The writ petition is allowed. Impugned orders dated 8.4.2005 and 9.8.2005 (Annexures 7 and 8 respectively to this writ petition) are hereby quashed. Matter is remanded to Prescribed Authority only to decide whether the property in question is a Waqf property or not. In case it is found that property in question is a Waqf property, he will have no jurisdiction in the matter, and the application shall stand dismissed but in case otherwise, for all other aspects, the issue having already been decided by Courts below on merits, the same shall stand as it is and the matter shall stand decided accordingly."
4. It transpires that pursuant to the aforementioned order of remand, and during the pendency of the proceedings before the Prescribed Authority in Rent Case No. 38 of 2002, an order dated 3.12.2018 was passed summoning certain records from the Waqf Board. Subsequent thereto upon an application dated 11.1.2019 filed by the respondents-landlord, the Prescribed Authority upon noticing the fact that in terms of the order of remand, it was required to decide only whether the property in questions is a waqf property or not, and there was no direction for summoning of the records, and also taking into consideration that the application for summoning of the records was filed by the petitioners-tenant on 29.9.2018, which was after a substantial delay from the date of the remand order dated 22.1.2014, allowed the recall application after recording that the application had been moved by the petitioners-tenant for summoning the records only with a view to keep the matter pending. The Prescribed Authority has also taken note of the fact that pursuant to the order dated 3.12.2018 directing summoning of the records no steps had been taken by the petitioners-tenant, and accordingly it was held that the purpose of filing the application for summoning of the records was only to delay the proceedings.
5. Contention of the counsel for the petitioners is that the order dated 03.12.2018 having been passed after hearing the parties and the same not being exparte the restoration application was not maintainable.
6. Per contra learned counsel appearing for the respondents has submitted that the application dated 11.01.2019 was not an application for restoration but it was an application seeking recall of the earlier order dated 3.12.2018. Referring to the application dated 11.1.2019, it has been pointed out that the documents which were being sought to be summoned by the petitioners-tenant were already on record, and in view of the same the order dated 3.12.2018 has rightly been recalled. Reliance has also been placed on the provisions under Order XIII Rule 10 C.P.C. to contend that necessary pre-requisites for summoning of the records were not fulfilled, and as such the order dated 3.12.2018 has rightly been recalled by the Prescribed Authority.
7. In terms of the order of remand passed by this Court in the earlier round of litigation the Prescribed Authority was only required to decide whether the
