# Aditya Shukla v. Smt. Shanti Devi Srivastava

- **Citation:** (2006) 2 ILRA 952
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-03-08
- **Case number:** Civil Misc. Writ Petition No.14044 of 2006
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aditya-shukla-v-smt-shanti-devi-srivastava-40703
- **Pages:** 3

## Headnote

Constitution of India-Art. 226-Right of
Third Party-Release application of land
lord-rejected by Rent Control & Eviction
officer-during pendancy of revision the
petitioner got allotment order of the
accommodation
in
questionsubsequently the land lords revision
stand allowed-which resulted the release
of accommodation in Question in favour
of land lord-held-in matter of release
between land lord and tenant-No other
person
can
be
heard-once
release
application allowed-consequential order
of allotment automatically goes.

Held: Para 5

Admittedly a revision lies against the
order passed by the Rent Control &
Eviction
Officer
rejecting
release
application and a revision, as already
stated, has been filed by the landlord
which has been allowed by the impugned
order. In Full Bench decision of this
Court in the case of Talib Hasan and
another vs. Ist Additional District Judge,
Nainital and others, 1986 (1) ARC 1 this
Court has held that the matter of release
is between landlord and tenant and no
other person has a right to be heard. This
decision has been upheld by the Apex
Court. In view of the ratio of Talib
Hussain (supra) petitioner's contentions,
that the order was exparte and that the
petitioner was not a party to the revision
and that he was not heard and ultimately
since the petitioner is going to be
affected by the order of release, cannot
be
accepted.
The
petitioner
is
in
occupation by virtue of a consequential
order of allotment which has been
passed after the release application of
the landlord was rejected. Thus in my
opinion once the order rejecting the
lease
application
is
set
aside
the
consequential
order
of
allotment
automatically goes and no further right
flows in favour of the petitioner.
Case law discussed:
2002 ACJ 1043 distinguished
1996 (1) ARC 1 relied on

## Text

952 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
who is dead, his legal representative. The
application shall state such facts as may
be necessary to support it and shall be
accompanied by an affidavit."

7. A careful reading of this Rule
make it evident that the High Court Rules
have taken care of a contingency where
the sole appellant or the respondent died
before the memorandum of appeal was
presented but was alive on the date when
the decree or order appealed was passed.
The memorandum of appeal can be
permitted to be amended by substituting
the person who is dead and his legal
representatives can very well be brought
on record. In the instant case, two
applications under Chapter X Rule 3 of
the High Court Rules supported by an
affidavit has been brought on record
seeking permission to array the legal
representatives of the deceased-appellant
Abudl Sattar as the appellant nos. 1/1 to
1/7. The Judgment and decree passed in
the first appeal is 19.4.2005. The certified
copy of the decree appended with the
appeal shows that it was prepared on
3.5.2005
and
the
appellant
died
subsequent to the passing of the judgment
and
preparation
of
the
decree
on
17.7.2005. In fact the appeal was also
reported at the time when the appellant
was alive and, therefore, I come to a
conclusion that this is a fit case where the
benefit of Chapter X Rule 3 of the High
Court Rules is available to the present
appellant. The learned counsel for the
appellant has cited a Division Bench
decision of this Court, Banke Bihari Lal
and another Vs. Mahadeo Prasad.
A.I.R. 1953 Allahabad 97, on the
question of condonation of delay and
burden of proof for grant of relief of
condonation of delay.

8. I have carefully examined the
counter and rejoinder affidavits filed in
support and against the delay condonation
application. It is apparent that though the
appeal was reported and it was lying with
the counsel for the appellant but it was not
within his knowledge that the sole
appellant
is
dead.
Subsequently
an
application for substitution as well as for
bringing
on
record
the
legal
representatives under the provisions of
High Court Rules along with delav
condonation application was filed. I find
that the cause shown is sufficient and thus
the delay in filing the application is fit to
be condoned. The application under
Chapter X Rule 3 of the High Court Rules
is allowed. Counsel for the appellant is
permitted to bring on record the heirs of
the appellant within a period of three
weeks from today. Office is directed to
summon the trial court record at the cost
of the appellant and list this appeal before
the appropriate Court for admission after
receipt of the record.

9. Till the next date of listing, the
parties are directed to maintain status quo
as on today.

 Delay condoned.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.03.2006

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No.14044 of 2006

Aditya Shukla

...Petitioner
Versus
Smt. Shanti Devi Srivastava ...Respondent

Counsel for the Petitioner:
Sri R.S. Mishra
2 All] Aditya Shukla V. Smt. Shanti Devi Srivastava
953
Counsel for the Respondent:

Constitution of India-Art. 226-Right of
Third Party-Release application of land
lord-rejected by Rent Control & Eviction
officer-during pendancy of revision the
petitioner got allotment order of the
accommodation
in
questionsubsequently the land lords revision
stand allowed-which resulted the release
of accommodation in Question in favour
of land lord-held-in matter of release
between land lord and tenant-No other
person
can
be
heard-once
release
application allowed-consequential order
of allotment automatically goes.

Held: Para 5

Admittedly a revision lies against the
order passed by the Rent Control &
Eviction
Officer
rejecting
release
application and a revision, as already
stated, has been filed by the landlord
which has been allowed by the impugned
order. In Full Bench decision of this
Court in the case of Talib Hasan and
another vs. Ist Additional District Judge,
Nainital and others, 1986 (1) ARC 1 this
Court has held that the matter of release
is between landlord and tenant and no
other person has a right to be heard. This
decision has been upheld by the Apex
Court. In view of the ratio of Talib
Hussain (supra) petitioner's contentions,
that the order was exparte and that the
petitioner was not a party to the revision
and that he was not heard and ultimately
since the petitioner is going to be
affected by the order of release, cannot
be
accepted.
The
petitioner
is
in
occupation by virtue of a consequential
order of allotment which has been
passed after the release application of
the landlord was rejected. Thus in my
opinion once the order rejecting the
lease
application
is
set
aside
the
consequential
order
of
allotment
automatically goes and no further right
flows in favour of the petitioner.
Case law discussed:
2002 ACJ 1043 distinguished
1996 (1) ARC 1 relied on

(Delivered by Hon'ble Anjani Kumar, J.)

1. The petitioner, an allottee of the
accommodation in dispute, aggrieved by
the order passed by the revisional
authority dated 22nd October 2005
whereby the revisional authority allowed
the revision filed by the landlord against
the order rejecting the release application
filed by the landlord and directing release
of the accommodation in favour of the
landlord, approached this Court by means
of this writ petition under Article 226 of
the Constitution of India.

2. The brief facts are that the
respondent-landlord filed an application
for release of the accommodation in
favour of the landlord consequent to
vacancy declared in the accommodation
in question. This release application has
been rejected by the Rent Control &
Eviction Officer by its order dated 18th
August 2005 whereby direction was given
to proceed with the allotment of the
accommodation in accordance with law.
The landlord-respondent aggrieved by this
order dated 18th August 2005 filed a
revision i.e. Rent Revision No.41 of 2005
before the revisional authority. During the
pendency of revision it appears that the
accommodation in question was allotted
in favour of the petitioner and as per
assertions made by the petitioner, the
petitioner occupied the accommodation in
question. The revision against the order
dated 18th August 2005 was ultimately
allowed by the revisional authority by its
order dated 22nd October 2005 whereby
the accommodation in question was
directed to be released in favour of the
landlord.
954 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
3. Learned counsel for the petitioner
submitted that the petitioner was not a
party to the revision, therefore, any order
that has been passed by the revisional
authority is not binding on him. It is
further submitted that since the petitioner
was not a party to the revision, the order
allowing the revision and directing the
release of the accommodation has been
passed without hearing the petitioner is in
contravention of the principles of natural
justice.

4. Learned counsel for the petitioner
has further relied upon a decision of this
Court reported in 2002 ACJ 1043, Smt.
Satyawati and others vs. Prescribed
Authority, Etawah and others, wherein
this Court has held that an order directing
to proceed exparte is prejudicial to
petitioner's interest, therefore, the order
was set aside by this Court. In my opinion
the aforesaid ratio laid down by this Court
in the above decision do not apply in the
present case. In the present case the
allotment order was passed in favour of
the petitioner which is a consequential
order to the order passed by the Rent
Control & Eviction Officer rejecting the
release application filed by the landlord.

5. Admittedly a revision lies against
the order passed by the Rent Control &
Eviction
Officer
rejecting
release
application and a revision, as already
stated, has been filed by the landlord
which has been allowed by the impugned
order. In Full Bench decision of this Court
in the case of Talib Hasan and another
vs. Ist Additional District Judge, Nainital
and others, 1986 (1) ARC 1 this Court
has held that the matter of release is
between landlord and tenant and no other
person has a right to be heard. This
decision has been upheld by the Apex
Court. In view of the ratio of Talib
Hussain (supra) petitioner's contentions,
that the order was exparte and that the
petitioner was not a party to the revision
and that he was not heard and ultimately
since the petitioner is going to be affected
by the order of release, cannot be
accepted. The petitioner is in occupation
by virtue of a consequential order of
allotment which has been passed after the
release application of the landlord was
rejected. Thus in my opinion once the
order rejecting the lease application is set
aside the consequential order of allotment
automatically goes and no further right
flows in favour of the petitioner.

6. In view of what has been stated
above this writ petition has no force and is
accordingly dismissed. Petition dismissed.
---------