Allahabad High Court
Nusrat Iftikhar Ahmad (For Noon ... vs Addl. District Judge / Spl. Judge (E.C. ... on 28 November, 2013
Author: Saeed-Uz-Zaman Siddiqi
Bench: Saeed-Uz-Zaman Siddiqi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED/A.F.R. Case :- RENT CONTROL No. - 13 of 2012 Petitioner :- Nusrat Iftikhar Ahmad (For Noon Session) Respondent :- Addl. District Judge / Spl. Judge (E.C. Act) Lucknow & Ors. Counsel for Petitioner :- Mohd. Adil Khan,Mohd. Shadab Khan Counsel for Respondent :- C.S.C.,Brijesh Kumar Saxena,Manish Kumar,S.P. Shukla,Vidya Dhar Upadhyay Alongwith. Case :- MISC. SINGLE No. - 757 of 2010 Petitioner :- St. Mark'S School Through Its Chairman/ Manager Respondent :- Learned Additional District Judge Court Lko.And Ors. Counsel for Petitioner :- Shiwa Kant Tiwari,Brijesh Kumar Saxena Counsel for Respondent :- C.S.C.,U.N.Misra Hon'ble Saeed-Uz-Zaman Siddiqi,J.
Both these writ petitions relate to House No. 47/15 Clay Square, Kabeer Marg, Lucknow. Hence, both the petitions are being heard and disposed of by this common judgment.
Admitted facts of the case are that one, Digambar Nath Pandey was the owner of the disputed house, who died in the month of December, 1975. He was an ex-student of Lucknow University and respect to the sentiments of Digambar Nath Pandey, his widow Shanti Devi executed a gift deed dated 13.08.1976 in favour of Lucknow University and this house was bequeathed in favour of the University. Subsequently, proceedings for allotment of the first floor of this house were initiated before the Rent Control Authority. The Rent Controller declared the vacancy and alloted first floor of the said house in favour of the petitioner in W.P. No. 13 (RC) of 2012 on 25.05.1984. The Lucknow University, who is opposite party no. 4 in this writ petition and opposite party no. 3 in W.P. No. 757 (MS) of 2010 filed a revision No. 43 of 1984 against the order of allotment, which was dismissed on 30.11.1995. The petitioner (hereinafter called 'the tenant'), took possession of the disputed premises on 25.05.1984. One Prem Prakash Mishra filed a review petition against the said order of allotment. The tenant filed W.P. No. 3585 of 1984 in which interim order was passed in favour of the tenant that he shall be evicted from the premises. W.P. No. 3585 of 1984 was allowed on 13.07.2007. Smt. Shanti Devi executed power of attorney in favour of one Ravindra Singh, the then Manager of opposite party no. 4 (St. Marks School) on 04.11.2000 and executed the will in his favour on 04.11.2000 regarding the disputed house which was already bequeathed by her on 13.08.1976, through a registered gift deed. Regular Suit No. 505 of 2000 (Smt. Shanti Devi Pandey vs. Registrar, Lucknow University & Anr.) was also filed by Shanti Devi through Revindra Singh for cancellation of gift deed dated 13.08.1976. Again Smt. Shanti Devi executed will on 17.05.2002 in favour of one Anupam Mishra. Regular Suit No. 505 of 2000 was decreed ex-parte vide judgment and decree dated 22.11.2003 and the gift deed was set aside on 31.07.2006. Lucknow University moved an application under order 9 Rule 13 C.P.C, for setting aside ex-parte decree along with an application for condonation of delay, which was allowed and the delay was condoned vide order dated 13.10.2009 and 21.11.2009 was fixed for disposal of application under order 9 rule 13 C.P.C. Opposite party no. 4 (St. Marks School) preferred civil revision no. 1 of 2010 against the said order which was also dismissed and, as such, St. Marks School has preferred W.P. No. 757 (MS) of 2010 in which the tenant is not party and Lucknow University is opposite party no. 3. From the facts as mentioned in chronological order, the dispute before this court is that St. Marks School has challenged this order passed by the learned Civil Judge against the application of Lucknow University and condoning the delay which has been affirmed by the Revisional Court (A.D.J., Court No. 2) Lucknow in Civil Revision No. 1 of 2010. In W.P. No. 13 (RC) of 2012, the tenant has filed the writ petition. St. Marks School has also moved application before the Rent Controller for eviction of the tenant, which was dismissed on 19.04.2010 against which the tenant preferred rent revision no. 7 of 2010 which has been allowed and Rent Controller has been directed to dispose of the lease application in the light of the directions contained in the judgment. Hence, the tenant has preferred Writ Petition No. 13 (RC) of 2012.
I have heard all the parties and gone through the records.
This is a simple dispute of ownership which has been converted by the subsequent events in a mixed dispute of ownership and tenancy.
Admittedly, Shanti Devi inherited the property from her husband, who executed registered gift deed in favour of Lucknow University. The tenant moved an application for allotment and the house was alloted by the Rent Controller in his favour. There remain no dispute between the Lucknow University which was the owner/landlord of the disputed premises. There remains no dispute from the year 1976 to the year 2000. It appears that she had changed her mind in the year 2000 by executing power of Attorney in favour of Ravindra Singh and executing will deed in favour of Anupam Mishra on 17.05.2002 and Ravindra Singh filed regular suit No. 505 of 2000 for cancellation of the said gift deed, which was decreed ex-parte and only then Lucknow University woke up and filed application under order 9 rule 13 C.P.C. On 31.07.2006. Thereafter, Anupam Mishra executed gift deed in favour of St. Marks School on 13.11.2006. The legal position is quite clear that if the gift deed remains intact, all subsequent document executed by Shanti Devi or Anupam Mishra will become void. Due to this settled legal position, I take up W.P. No. 757 (MS) of 2010, in which St. Marks School has challenged the orders passed by the learned Civil Judge, Lucknow and learned Revisional Court, who have condoned the delay of Lucknow University and application under Order 9 rule 13 C.P.C. remains to be disposed of. If that application is allowed, regular suit No. 505 of 2000 would revive and that will be the only mode to dispose of the ownership controversy.
The learned Civil Judge has passed a detailed order and has discussed the stand of the Lucknow University that the ex-parte decree became in the knowledge of the University on 19.06.2006 and, as such, application under Section 5 of Limitation Act and under order 9 Rule 13 C.P.C. was moved on 31.07.2006 i.e. after the delay of eleven days which has been condoned. The learned Trial Court, while allowing the application for condonation of delay has rightly relied upon the law laid down by the Hon'ble Apex Court in N. Balakrishnan vs. K. Krishnamurthy [(1998)7 SCC 123], wherein it was observed that a liberal approach should be adopted while allowing application under Section 5 Limitation Act. The learned Trial Court has also relied upon the law laid down by the Hon'ble Apex Court in M.K. Prasad vs. P. Arumugam [2002 (1) JCLR 170 (S.C)] and law laid down by this Court in Smt. Nausai and Ors. vs. Liyakat and Ors [2005 JCLR 581 (All)].
While complying with these authorities, the learned Trial Court has imposed Rs. 3,000/- as cost upon Lucknow University. While allowing the application, the learned Trial Court has not condoned the delay for a very long period. However, it was argued by learned counsel for the petitioner that the impugned order was in the knowledge of the Lucknow University prior to the date given by the University. It has been refuted by the University through counter affidavit. The learned Revisional Court has also confirmed the order of the learned Trial Court in a pragmatic manner and in consonance with the dictum of Hon'ble Apex Court in various authorities as mentioned in the order. On this score, learned counsel for the petitioner argued about the pleas taken by the plaintiff in Regular Suit No.505 of 2000, which are not at all relevant at this stage. The merits of the suit shall have to be considered by the learned Trial Court who has already allowed the application under Section 5 of Limitation Act and application under Order 9 Rule 13 of Code of Civil Procedure is yet to be disposed and the facts shall be relevant only after allowing the application under Order 9 Rule 13 of the Code of Civil Procedure by the learned Trial Court when the suit would come up for disposal on merits. I do not find any infirmity, illegality or perversity in the order passed by the learned Trial Court or by the learned Revisional Court. The settled law on the point is that a dispute relate to the property should not be halted on the strict interpretation technicalities and law favours disposal on merits. The writ petition no.757 (M/S) of 2010 deserves to be dismissed. However, it is expected that the learned Trial Court shall proceed on to dispose of the application under Order 9 Rule 13 of the Code of Civil Procedure and the suit itself, as the case may be, as expeditiously as possible, particularly because the Lucknow University has remained its undisputed owner for twenty four years and the premises is in occupation of a tenant.
Now, I take up the merits of writ petition no.13 (R/C) of 2012 by which the tenant has sought writ in the nature of certiorari quashing the judgment and order dated 9.12.2011 passed in Rent Revision No.7 of 2010 which was filed by St. Mark's School, in whose favour the disputed premises has been gifted by one Anupam Mishra on 13.01.2006. This deed cannot form basis of judgment unless the original deed executed by Shanti Devi dated 13.08.1976 is set aside. If this deed is not set aside by a Civil Court, the subsequent gift deeds cannot be taken into consideration and have to be ignored as non est and, as such, St. Mark's School shall not remain competent to initiate and continue the proceedings against the tenant. Anyway, St. Mark's School has preferred this revision by challenging the order of the Rent Controller on the ground that the tenant has taken possession immediately after allotment without taking recourse to the provisions contained in U.P. Act No.13 of 1972. Another ground was that the tenant has got another house no.538 /310 Ahibaranpur-II, Police Station Aliganj, Lucknow in the name of his wife within the municipal limits of Lucknow. The learned Revisional Court has wrongly held that Lucknow University has no ownership or authority and the Rent Controller has briefly passed the release order. Learned Revisional Court has also observed that on the basis of dispute of ownership, the Rent Controller has rejected the release application, without taking into consideration the vacancy under Section 12 of U.P. Act no.13 of 1972. The learned Revisional Court has quashed the order of the Rent Controller and has directed it to decide it afresh in view of the facts mentioned in the judgment. Learned Revisional Court has totally ignored nor has entered into or discussed the factum of ownership of Lucknow University undisputedly for twenty four years, or pendency of Regular Suit No.505 of 2000, or the locus of St. Mark's School to claim ownership. It was argued on behalf of opposite party no.4 that the tenant has illegally occupied the disputed premises immediately after allotment without obtaining due recourse to law. Learned counsel for the opposite party no.4 relied upon the law laid down by this Court in the case of Jai Prakash Vashisht v. A.D.M. (E) Merrut & others, AIR 1995 (1) Page 476, which is not at all relevant to the facts of the present case. It relates to illegal grabbing and brazen acts of lawlessness. Another authority relied upon by the learned counsel for the opposite party no.4 in Smt. Chetan Atma Govil v. RC & EO, Saharanpur & ors. ARC 1995 (1) Page 514. Both the authorities relate to the same brazen acts of lawlessness. In Mohan Lal Mehra v. State of U.P. & Ors. ARC 1995 (1) Page 553, the same Hon'ble Judge has used similar views which are his personal observations and no law has been laid down in it nor the facts of this case are applicable to the facts of the present case. On the fateful day i.e. allotment order Lucknow University was undisputedly the owner/landlord of the disputed premises and it did not challenge the act of tenant. It was Lucknow University who could have come to the Rent Controller or to the Revisional Court or to this Court to say that Form-D was not served upon the landlord, the possession was taken suo-moto by the landlord on the strength of the allotment order. It is however true that no person is entitled to obtain forcible possession, in violation of Rule 14 framed under U.P. Act No.13 of 1972 and the landlord is entitled to get one week's time either to submit to the allotment order or to file objection or take legal action against the allotment order. Only, in that event, it shall amount to house grabbing but the Lucknow University alone was the landlord from 13.08.1976 till the date of ex-parte decree which is still subjudice. In view of complexity of the subsequent documents, the legality of which is subjudice, the Rent Controller was justified in law to have rejected the release application moved by St. Mark's School. The allotment order was passed in favour of the tenant on 25.05.1984 which was challenged by Lucknow University through Rent Revision No.43 of 1984 which was also dismissed on 30.11.1995. All the disputes between the landlord and tenant have been settled on the date of decision of the revision on 30.11.1995, the copy of which is one the records of the case.
It was also argued by learned counsel for the petitioner that the tenant should be thrown out of the premises without delay as he had occupied it, without adopting due course of law and, as such, it is a fraud. It does not lie in the mouth of a party whose ownership is dependent upon a decree passed in Regular Suit No.505 of 2000. Admittedly, Lucknow University was the owner and landlord of the disputed premises when the house was allotted to the tenant. Lucknow University was not in collusion with the tenant as it preferred the Rent Revision which was dismissed. The matter of taking possession by the tenant without obtaining due recourse to law might or might not have been challenged by Lucknow University during the course of argument in rent revision filed by it. The matter cannot be reopened at this belated stage i.e. after a lapse of about a quarter century by a person whose ownership is under clouds and who was, even remotely, not the owner or perspective owner of the disputed premises.
Since learned counsel for the petitioner in writ petition no.757 (MS) of 2010 vehemently argued about forcible possession and fraudulent act of the tenant in violation of the Rule 14 framed under U.P. Act No.13 of 1972. I have due consideration to this plea. Rule 14 of the U.P. Act No.13 of 1972 runs as follows:-
"14. Enforcement of order of allotment or release [Section 16(4)].- Where any building about to fall vacant is allotted or released under Section 16(1), proceedings for putting the allottee or the landlord, as the case may be, in possession shall be taken by the District Magistrate only after the building has actually fallen vacant or is held by him through the inquiry conducted in that behalf to have fallen vacant, and an order in the Form C shall be served upon the person or persons found in unauthorized occupation of the building directing him or them to vacate the same and deliver vacant possession thereof to the person named in the order within such period as may be specified in the order, which shall in no case be less than a week from the date of service of the order upon him, and on his failure to comply with the order within the time allowed, the District Magistrate shall issue an order to the officer-in-charge of the Police Station in From D directing him to get the building vacated and to put the allottee or the landlord in possession of the building."
A bare reading of Rule does nowhere prohibit an allottee to take possession of the allotted premises without approaching the District Magistrate. The tenant, in this case, has not violated any of the provisions contained in U.P. Act No.13 of 1972 or Rules framed thereunder. The matter ended between the landlord and tenant on 30.11.1995 when Rent Revision No.43 of 1984 was decided by the learned Revisional Court, against which the Lucknow University did not prefer any petition before this Court. The matter of tenancy came to an end between the landlord and tenant. How a subsequent alleged owner can challenge the factual matrix of event of about a quarter century back?
It is settled legal position that a Court of law need not ask a plaintiff to show the provisions of law under which relief can be given to him though, it is justified in ordinary course, unless it is specifically barred by any expressed provision of law. Before conclusion, I am relying upon the law laid down by the Hon'ble Apex court in Shreenath and another v. Rajesh and others, 1998 (4) Supreme 155, in which following observations have been made:-
"In interpreting any procedural law, where more than one interpretation is possible, the one which curtails the procedure without eluding the justice is to be adopted. The procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the receipient of justice is not to be followed."
The Latin maxim 'dura lex sed lex', means law is hard, but it is law'. Equity can only supplement the law, but it cannot supplant or override it. When there is a conflict between law and equity the law is to prevail. Equity and law are twin brothers and law should be applied and interpreted equitably, but equity cannot override written or settled law. If the statutory provision is plain and unambiguous, the Court shall not interpret the same in a different manner, only because of harsh consequences arising therefrom. In construing a statutory provision the first and foremost rule of construction is the literary construction. All that the Court has to see at the very outset is what does the provision say. If the provision is unambiguous and if from the provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction are called into aid only when the legislative intent is not clear, that is why it is called 'golden rule of interpretation'. Hardship or inconvenience cannot alter the meaning of the language employed by the Legislature if such meaning is clear on the face of the statute. It is well settled principle of law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. It is a cardinal principle of statute that intends of statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. While holding this I am relying upon the law laid down by the Hon'ble Apex Court in Raghunath Rai Bareja and anr. v. Punjab National Bank and ors. (2007) 2 SCC 230.
The impugned order passed by the learned revisional court deserves to be quashed and the writ petition no.13 (RC) of 2012 deserves to be allowed. It is hereby allowed and the order passed by learned revisional court in Rent Revision No.7 of 2010 dated 9.12.2011 is set aside. In result, writ petition no.757 (MS) of 2010 is dismissed.
(Hon'ble Saeed-Uz-Zaman Siddiqi,J.) Order Date :- 28th November, 2013.
Nitesh/Ram.