Smt. Kalawati And Others vs Pradeep Kumar And Others on 23 April, 2018

[Cites 6, Cited by 1]

Uttarakhand High Court

Smt. Kalawati And Others vs Pradeep Kumar And Others on 23 April, 2018

Equivalent citations: AIR 2018 (NOC) 837 (UTR.), AIRONLINE 2018 UTR 344

Bench: Manoj K. Tiwari

     IN THE HIGH COURT OF UTTARAKHAND
             (Under Article 226 of the Constitution of India)

            Writ Petition (M/S) No. 936 of 2018


Smt. Kalawati & Others                             ............ Petitioners


                                 Versus


Shri Pradeep Kumar & Others                    ............Respondents



Mr. Neeraj Garg, Advocate for the petitioners.
Mr. Vikas Bahuguna, Advocate for the respondent nos. 1 & 2.




Hon'ble Manoj K. Tiwari, J.

By means of the present petition, petitioners seek following relief:

"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 30.03.2018 passed by learned Prescribed Authority/Civil Judge (Sr. Division), Dehradun in PA Case No. 8 of 2008 - Pradeep Kumar and another vs. Smt. Kalawati & Others, on application paper no. 132A, 134A, 133A & 135A of petitioners (Annexure No.1 to the writ petition).

2. This is tenant's petition under Article 227 of Constitution of India against the order dated 30.03.2018 passed by learned Prescribed Authority/Civil Judge (Sr. Division), Dehradun in PA Case No. 08 of 2008 " Pradeep Kumar & another vs. Smt. Kalawati & others".

3. Brief facts of the case are as follows:

4. Mr. Pradeep Kumar and Mr. Sanjay Kumar (Respondent No. 1 & 2, respectively) filed an application for release of a portion of building under Section 21 (1) (a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, against the petitioners before the Prescribed Authority. It was contended in the said release application that Mr. Pradeep Kumar and Mr. Sanjay Kumar have purchased the property by a sale-deed dated 23.02.1999 from one Shri Sharad Kumar, who was the previous owner of the property in dispute. The said release application was filed in the year 2008 and was registered as PA Case No. 8 of 2008. Petitioners (tenants) filed their objection/written statement to the release application. At this stage, petitioners moved three applications before learned Prescribed Authority, which were numbered as 53A. 58A and 57A. By the first Application No. 53A, tenants had sought permission to cross-examine the witnesses of release applicants (Respondent Nos. 1 & 2). By the second application No. 58A, petitioners sought permission of the Prescribed Authority for appointing a local commissioner to inspect the property in question. By the third application No. 57A, petitioners sought permission to file their remaining evidence. All these three applications were rejected by learned Prescribed Authority vide order dated 02.03.2012. Thus, feeling aggrieved, tenants filed Writ Petition (M/S) No. 793 of 2012 before this Court and a coordinate Bench of this Court vide order dated 03.05.2012, passed an interim order providing that the proceedings pending before the Prescribed Authority may go on, however no final order shall be passed. The aforesaid writ petition, filed by the tenant, was ultimately disposed of by this Court vide order dated 22.06.2017.

Relevant paragraphs of the said judgment dated 22.06.2017are extracted below:

5) Writ petition is, accordingly, disposed of by rejecting relief nos. (i) and (ii), but allowing relief no. (iii) of the tenant- petitioner.

6) The tenant-petitioner is permitted to adduce remaining evidence at the stage of his evidence before the Prescribed Authority on payment of Rs. 5,000/-, as costs, to be paid to the landlord-respondent. Such evidence may be filed on or before 21.07.2017. An effort shall be made by the learned Prescribed Authority to decide P.A. case no. 08 of 2008, Pradeep Kumar & another vs Smt. Kalawati & others, pending before it, at an earliest possible, in accordance with law, without granting unnecessary adjournments to either of the parties.

5. It transpires that the tenant thereafter filed an application seeking permission to amend their objection/written statement, for bringing subsequent developments on record. The said amendment application was allowed by learned Prescribed Authority vide order dated 08.09.2017. On 15.09.2017, Respondent No. 1 & 2 filed an application (Paper No. 92A) seeking permission to amend the release application. The application filed by Respondent No. 1 & 2 was allowed by learned Prescribed Authority vide order dated 06.10.2017, which was challenged by the tenants before this Court by filing Writ Petition No. 2660 of 2017 (M/S), and the same was dismissed by this Court vide order dated 06.11.2017. Relevant paragraphs of the said judgment are extracted below"

"12. This aspect has also to be considered from the view point that the provisions under Order 6 Rule 17, a proviso has been added by the legislation with an intention to curb the proceedings before a regular civil Courts from being prolonged due to unnecessary delay. As far as U.P. Act No. 13 of 1972 is concerned, the proceedings before the learned Prescribed Authority was before the learned Appellate Court, created under the said Act being summary in nature, besides the rule 15(3) it provides time period within which the case has to be decided, and that is why the legislature in its wisdom has not attracted the proviso as under Rule 22 of the Code of Civil Procedure.

13. Thus the argument as extended by the learned counsel for the petitioner is not acceptable. Thus the writ petition fails and is hereby dismissed. No order as to cost".

6. After dismissal of Writ Petition No. 2660 of 2017 (M/S) the tenants filed additional pleadings in reply to the amended release application, which was accepted by the Prescribed Authority on record. Respondent Nos. 1 & 2 filed one replication to the amended objection/written statement. Thereafter, Respondent Nos.1 & 2 filed an additional replication to the additional written statement filed by the tenants/petitioners in reply to the amended release application. Respondent Nos. 1 & 2 filed an affidavit in rebuttal (Paper No. 107A) and they also filed 28 documents alongwith Paper No. 108C. The tenant thereafter filed application Nos. 132A and 134A for rejecting the additional replication Paper Nos. 102A and 104A, respectively. The tenant thereafter filed an application/Paper No. 133A for rejecting the rebuttal affidavit filed by Respondent Nos. 1 & 2. Fourth application filed by the tenants was Application No. 135A, whereby they requested the Prescribed Authority to direct Respondent Nos. 1 & 2 to bring on record the original sale-deeds dated 13.05.1985 and 23.02.1999.

7. Learned Prescribed Authority has disposed of these four applications filed by the tenants by a common order dated 30.03.2018. Regarding two applications i.e. Paper Nos. 132A and 134A, learned Prescribed Authority after referring to the concession of learned counsel for the tenants, held that the replica filed by the landlord (Paper No. 102A and 104A) shall be treated as rebuttal evidence. Application No. 133A, whereby tenants had sought rejection of affidavit of rebuttal filed by Respondent Nos. 1 & 2, was rejected on the ground that since the 5 petitioners were granted permission to file remaining evidence, therefore, principles of natural justice require that Respondent Nos. 1 & 2 are also granted liberty to file evidence in rebuttal. However, learned Prescribed Authority permitted the petitioners/tenants to file documents, if any, in reply to the documents filed by Respondent No. 1 & 2.

8. The fourth application Paper No. 135A filed by the tenants/petitioners, whereby they had requested the learned Prescribed Authority to require Respondent No.1 & 2 to file the original sale-deeds on record was also rejected by learned trial court by observing that question of title and validity of sale-deeds cannot be gone into in summary proceedings under Section 21 of the Act No. 13 of 1972. The order dated 30.03.2018 passed by learned Prescribed Authority whereby all these applications filed by the tenants were disposed of, is under challenge in the present writ petition.

9. I have heard Mr. Neeraj Garg, learned counsel for the petitioners and Mr. Vikas Bahuguna, learned counsel for respondent nos. 1 & 2 and perused the record.

10. It is settled position in law that scope of a suit cannot be enlarged by bringing new facts in the replica. Therefore, the apprehension expressed by the petitioners that Respondent Nos. 1 & 2 are trying to enlarge the scope of suit by stating new facts in the replica appears to be without any substance. Similarly, rejection of petitioners application no. 133A is not going to prejudice the petitioners in any manner, as learned Prescribed Authority will take decision on the release application strictly as per the pleadings and any evidence which is 6 beyond the pleadings will be ignored. As regards rejection of petitioners application no. 135A, this Court finds that the view taken by learned Prescribed Authority is correct, as question of title or validity of sale-deeds cannot be considered in summary proceedings under Section 21 (1)

(a) of U.P. Urban building (Regulation of Letting, Rent and Eviction) Act, 1972.

11. In such view of the matter, there is no scope of interference with the order impugned in the writ petition, consequently the writ petition fails and accordingly dismissed. Since considerable delay has already been made and release application filed by Respondent nos. 1 & 2 in 2008 is yet to be decided, therefore, this Court hopes and expects that the learned Prescribed Authority shall finally decide the matter as early as possible.

12. Learned counsel for the petitioners submits that time allowed by Prescribed Authority for filing rebuttal evidence has expired, therefore on his oral prayer, petitioners are permitted to file rebuttal evidence within four weeks from today.

(Manoj K. Tiwari, J.) 23.04.2018 Nahid

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Uttarakhand High Court