# Hanuman Prasad Mishra v. Chandra Mohan Purswani

- **Citation:** (2022) 4 ILRA 1284
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hanuman-prasad-mishra-v-chandra-mohan-purswani-48411
- **Pages:** 11

## Headnote

Law
-
U.P.
Urban
Buildings
(Regulation of letting, Rent and Eviction)
Act, 1972-Appellant fails to appear before the
Court below-Rent Appeal dismissed-claim-should
have been dismissed in default and not on
merits-need of landlord found genuine-High
court directed the matter to be decided in two
months-order not interfered.
Petition dismissed. (E-9)
List of Cases cited:

## Text

1284 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Custodian General was required to
dispose of the disputed plots and the saledeed is not invalid for being violative of
Section 10(2)(o) of the Act, 1950. In view
of the aforesaid there is no infirmity in the
sale-deed dated 26.11.1981/3.4.1982.

40. In light of the findings recorded
above, the issue regarding the regularity in
the proceedings of the consolidation courts
and the authenticity of the different records
and orders passed by the consolidation
courts is not relevant for deciding the rights
of the parties. The petitioner and Shamim
Khan claimed title to the disputed plots
from Mohd. Ali Khan. The disputed plots
were acquired by the Central Government
under Section 12 of the Act, 1954. The
acquisition under Section 12 of the Act,
1954 extinguished the rights, title and
interest of the evacuee, i.e., Mohd. Ali
Khan in the disputed plots. In the
circumstances, the proceedings before the
consolidations courts could not have been
reopened at the instance of either the
petitioner or Shamim Khan.

41. In light of the findings recorded
above that the disputed plots were evacuee
property and there is no infirmity in the
sale deed executed in favour of Panna Lal
Mishra, C.H. Form 45 correctly reflected
the title of the disputed plots. Further, the
reopening of the consolidation proceedings
would invite a dispute regarding the title of
the Custodian in the disputed plots which is
barred by Section 48-A of the Act, 1953.
The order dated 4.9.2011 was contrary to
law because through the aforesaid order,
the
D.D.C.
had
directed
that
the
proceedings regarding succession to the
title of Mohd. Ali Khan in the disputed
plots be started a fresh which could not
have been done as the interest of Mohd. Ali
Khan
in
the
disputed
plots
stood
extinguished
after
notification
dated
26.11.1957 and the disputed plots had
vested in the Central Government. It is
difficult to comprehend as to how the
D.D.C. by her order dated 4.11.2009
remanded back the matter to the C.O. for
passing fresh orders even though on her
own findings recorded in the order dated
4.11.2009, no case had been instituted
regarding the title of the disputed plots. In
case, Panna La Mishra was not entitled to
be recorded as Bhumidhar of the disputed
plots and the entries in C.H. Form 45 were
forged, the basic year entries showing that
the disputed plots were evacuee property
and under the Administration of the
Custodian could have been restored. The
restoration of said entries would not benefit
either the petitioner or Shamim Khan.
Apparently, the petitioner or Shamim Khan
had no locus to get the proceedings before
the consolidation courts reopened. The
D.D.C. vide her order dated 7.2.2011
rightly recalled her previous order dated
4.9.2011. For the same reasons as recorded
above, petitioner has no locus to challenge
the order dated 7.2.2011.

42. In view of the aforesaid, there is
no illegality in the order dated 7.2.2011
passed
by
the
Deputy
Director
of
Consolidation, Bareilly so as to occasion
interference under Article 226 of the
Constitution of India.

43. The writ petition lacks merit, and
is, accordingly dismissed.

44. Interim order, if any, stands
vacated.
----------
(2022)04ILR A1284
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.03.2022
4 All. Hanuman Prasad Mishra Vs. Chandra Mohan Purswani
1285
BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Matters U/A 227 No. 759 of 2022

Hanuman Prasad Mishra ...Petitioner
Versus
Chandra Mohan Purswani ...Respondent

Counsel for the Petitioner:
Vivek Kumar, Apoorva Tewari

Counsel for the Respondent:
Satya Narain Bhanu

Civil
Law
-
U.P.
Urban
Buildings
(Regulation of letting, Rent and Eviction)
Act, 1972-Appellant fails to appear before the
Court below-Rent Appeal dismissed-claim-should
have been dismissed in default and not on
merits-need of landlord found genuine-High
court directed the matter to be decided in two
months-order not interfered.
Petition dismissed. (E-9)
List of Cases cited:
1. Writ-A No.21265 of 2008 (Shashi Bhushan
Anand @ Toni & ors. Vs Smt. Ram Devi & anr.)

2. Shri Baradakanta Mishra Ex-Commissioner of
Endowments Vs Shri Bhimsen Dixit reported in
(1973) 1 SCC 446

3. East India Commercial Co. Ltd. Calcutta &
anr. Vs The Collector of Customs, Calcutta
reported in AIR 1962 SC 1893

4. Shiv Swaroop Gupta Vs M.C. Gupta reported
in AIR (2001) SC 2896
(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

(1) Heard Shri Anil Kumar Tewari,
learned Senior Advocate assisted by Shri
Apoorva Tewari for the petitioner and Shri
D.K. Saxena, learned counsel appearing on
behalf of the respondent who has filed his
Power today.

(2) This petition has been filed
challenging the judgment and order dated
02.03.2022 passed by the Additional
District Judge, Court No.1, Lucknow,
dismissing the Rent Appeal No.6 of 2014
and praying for restoring the same to its
original number.

(3) Learned Senior Counsel has taken
this Court through the provision of Rule 22
of the Rules framed under U.P. Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 (hereinafter referred to
U.P. Act, 1972) and has pointed out Sub
Rule (a) of Rule 22 to say that the
provisions of Order 41 Rule 17 of the CPC
would apply where the appellant fails to
appear and the Appeal filed by the
appellant should have been dismissed in
default and not on merits. Learned Senior
counsel has also pointed out the judgment
rendered by a Co-ordinate Bench of this
Court in Writ-A No.21265 of 2008 (Shashi
Bhushan Anand @ Toni & Others Vs.
Smt. Ram Devi & Another) decided on
05.08.2014 to buttress his arguments.

(4) In the said case, this Court was
considering a similar matter where the
judgment of the Prescribed Authority was
challenged by the petitioner before the
Appellate Court but the Appellate Court
had dismissed the Appeal arising therefrom
on 11.05.2007 and rejected the application
of the petitioner for recall of the said
judgment on 22.01.2008. This Court had
observed that in view of Section 34 of the
Act of 1972 read with Rule 22 of the Rules
framed under the Act the same powers as
are vested in the Civil Court under the
Code of Civil Procedure are given to the
1286 INDIAN LAW REPORTS ALLAHABAD SERIES
Trial Court under the Act 1972 to discuss
an appeal or revision for default and to
restore it for sufficient cause. It had relied
upon the several judgments of this Court
and of the Supreme Court to say that just
because the earlier counsel of the appellant
was present before the Court and had
refused to argue it would not amount to an
appearance within the meaning of Rule 17
of Order 14 of the CPC. In the said case of
Shashi Bhushan Anand @ Toni & Others
(Supra), the other counsel who was
subsequently engaged was not present and
the Court held that there was no appearance
of any counsel on behalf of the petitioner.
The Appeal should have been dismissed in
default rather than on merits. The Court had
held that the Appellate Court exceeded its
jurisdiction and decided the Appeal on
merits in the absence of either of the
counsels for the appellant/petitioner. The
petition was allowed and the matter was
remanded to the Appellate Court for
decision afresh.

(5) Learned counsel for the petitioner
has submitted that the petitioner had
approached
this
Court
earlier
also
challenging the order dated 01.11.2021
passed by the Additional District Judge-I,
Lucknow, as also the judgment dated
26.08.2021 passed in Rent Appeal No.6 of
2014 in reference to which application for
recall was moved which was registered as
Miscellaneous Case No.801-C of 2021. It
has been submitted that this Court after
placing reliance upon Shashi Bhushan
Anand (Supra) and quoting the said
judgment in extenso had observed that the
Appellate Court should have dismissed the
Appeal in default but should not have
decided the same on merits. It had also
referred to the earlier directions of this
Court to decide the matter expeditiously. It
had therefore while remanding the matter
to the Appellate Court for taking a decision
on the Appeal on merits strictly as per law,
also directed that the same be decided as
early as possible say within a period of two
months from the date of production of
certified copy of the order, if there is no
legal impediment, and while taking such a
decision in Appeal, the Court concerned
shall providing proper opportunity of
hearing to the parties concerned. This Court
also provided that the petitioner shall not
seek any adjournment before the Court
concerned as on earlier occasions also this
Court had expedited the proceedings in the
Appeal.

(6) Learned counsel for the petitioner
had pointed out to the Court that the
petitioner had moved an application for
transfer of the Appeal to another Court
which was dismissed for non-prosecution
and against which the application for recall
was moved which was pending before the
District Judge but this Court observed that
it was open for the petitioner to approach
the District Judge for transfer of the matter.

(7) It has been argued that after this
judgment dated 23.11.2021 setting aside the
judgment and order dated 26.08.2021, the
Appellate Court was bound to follow the
law and to decide the Appeal within time
prescribed and also in case of counsel for
appellant failing to appear and to assist it
could have only dismissed the Appeal in
default but not on merit.

(8) Learned counsel for the petitioner
has also pointed out the judgment rendered
by the Hon'ble Supreme Court in the case
of
Shri
Baradakanta
Mishra
ExCommissioner of Endowments Vs. Shri
Bhimsen Dixit reported in (1973) 1 SCC
446 and Paragraph-14 thereof where the
Supreme Court observed that under Article
4 All. Hanuman Prasad Mishra Vs. Chandra Mohan Purswani
1287
227 of the Constitution of India, the High
Court was vested with the power of
Superintendence over the Subordinate
Courts and Tribunals in the State, When a
specific direction had been issued to the
Tribunal, then the Tribunal could not ignore
the law declared by the High Court and
start proceedings in direct violation of it.

(9) The learned counsel for the
petitioner has also referred to observations
made in East India Commercial Co. Ltd.
Calcutta and Another Vs. The Collector
of Customs, Calcutta reported in AIR
1962 SC 1893, where the Supreme Court
had observed thus"..................... "if a
Tribunal can do so, all the subordinate
courts can equally do so, for there is no
specific provision, just like in the case of
Supreme Court, making the law declared by
the High Court binding on subordinate
courts. It is implicit in the power of
supervision
conferred
on
a
superior
Tribunal that all the Tribunals subject to its
supervision should conform to the law laid
down by it. Such obedience would also be
conducive
to
their
smooth
working;
otherwise there would be confusion in the
administration of law and respect for law
would irretrievably suffer." It has been
argued that after this Court had remanded
the matter to the Trial Court to decide the
Appeal afresh on merits, only on the
ground that it could not have been decided
on merits on failure of counsel for the
appellant to appear and assist the Appellate
Court could have only dismissed the
Appeal in default and deciding the same on
merits amounted to contemptuous conduct.

(10) It has been argued by the learned
counsel appearing on behalf of the
petitioner that after the order impugned was
passed on 02.03.2022 a recall application
has been moved by the petitioner on
09.03.2002 which has been registered as
Miscellaneous Case No.222 of 2022 and
despite knowledge that the Execution case
was fixed on 16.03.2022 the Appellate
Court has fixed the recall application for
hearing only for 25.03.2022.

(11) In sum and substance, it is the
argument of the learned counsel for the
petitioner that this Court having set aside
the earlier judgment passed by the
Appellate Court on merits by observing
that since the counsel for the appellant had
not appeared the matter could only have
been dismissed in default under Order 41
Rule 17 of the CPC by the Appellate Court
and could not have been dismissed on
merits, yet the Appellate Court has
proceeded to decide the Appeal on merits in
the absence of the counsel for the appellant.

(12) There is no quarrel with the basic
proposition of law on which the argument
has been made by the learned Senior
Counsel, however the law has to be applied
in the context of facts which are different in
each case. The facts are evident from a
perusal of the pleadings on record are as
follows:-

"The petitioner's grandfather was
initially inducted as tenant in the disputed
shop situated In Building No.2, Misra
Bhawan, Arya Nagar P.S. Naka Hindola,
Lucknow. After his death the tenancy
devolved upon the father of the petitioner.
The respondent purchased the shop in
question from Dr. R. N. Misra, Dr. D.N.
Mishra, Late Colonel J. Misra and
Shivanand Misra on 21.08.1999, and the
sale deed was registered on 25.01.2000.
The petitioners father died on 11.03.2011
and the tenancy of the shop in question
devolved
upon
the
petitioner.
The
Respondent filed an application for release
1288 INDIAN LAW REPORTS ALLAHABAD SERIES
of the shop in question under Section
21(1)a of U.P. Act No.13 of 1972 registered
as P.A. Case No.67 of 2012 [Chandra
Mohan
Purswani
Versus
Hanuman
Prasad Mishra]. The case was allowed by
the Prescribed Authority on 24.12.2013 and
the petitioner was directed to hand over
vacant possession of the shop in question
within two months from the date of the
judgement.

(a) The petitioner challenged the
judgement dated 24.12.2013 in Rent Appeal
No.6 of 2014. In the meantime the
Respondent had already filed the Execution
Case No.24 of 2014 which was pending
consideration before the Additional Civil
Judge (Senior Division), Court No.20
Lucknow. In Rent Appeal No.6 of 2014, the
Appellate Court stayed the order of the
Prescribed Authority on 17.02.2014. On
21.11.2014 the petitioner filed an application
seeking amendment in the written statement
for challenging the title of the Respondent on
the ground that the shop in question was put
in trust for the benefit of Jai Narayan Mishra
Degree College and the shop could not be
alienated by the Trust without the permission
of the Director, Department of Education.
The Application for amendment was rejected
on 29.10.2015 with the finding that the
Respondent had been admitted as Landlord in
the original written statement and such
admission could not be withdrawn by
amending such written statement in Appeal.

(b) On 15.07.2016 the petitioner
made another application bearing No.C-57
for recall of order dated 29.10.2015 and for
the consideration of the application for
amendment in the written statement. The
application for recall of order was rejected
on 14.05.2018 on the ground that the order
dated 29.10.2015 had been passed on
merits by the Appellate Court.

(c) The petitioner filed another
application
Paper
No.C-94
seeking
amendment
in
the
written
statement
contending that the sale deed dated
21.08.1999 had been executed by alleged
Trustees who had never been inducted as
Trustees of the Trust owning the shop in
question. The application Paper No.C 94
was rejected on 14.03.2019. The petitioner
filed Petition No.8250 (R/C) of 2019
challenging the order dated 14.03.2019.
This Court dismissed such petition on
29.03.2019.

(d)
The
petitioner
preferred
C.M.A. No.40741 of 2019, seeking a
review of the order dated 14.03.2019 which
was rejected on 16.04.2014. The petitioner
preferred another Application Paper No.C134 seeking leave to deliver interrogatories
upon the Respondent on 4.2.2021 with
respect to shops which had come into the
possession of the Respondent during the
pendency of Rent Appeal No.6 of 2014.
The Appellate Court by its order dated
4.02.2021,
proceeded
to
treat
such
application
as
an
application
for
adjournment and accepted it on payment of
cost of Rs.500/- and adjourned the Appeal
to 10.02.2021. On 10.02.2021 the petitioner
preferred an application for Recall of order
dated 4.02.2021 and prayed that his
application bearing Paper No.C134 be
decided on merit. The application for
Recall of order dated 4.02.2021 was heard
and rejected by the Appellate Court on the
same day. The petitioner preferred another
Application bearing Paper No.A -138
seeking
amendment
in
the
written
statement for asserting that during the
pendency of the Appeal, the bonafide need
of the Landlord had been satisfied by
release of a large portion of the building in
his favour by other tenants. The said
application was heard on merits on
15.02.2021 itself and the Appellate Court
proceeded to consider the said application
as an application for adjournment and
4 All. Hanuman Prasad Mishra Vs. Chandra Mohan Purswani
1289
vacated the interim order dated 17.02.2014
passed in Rent Appeal No.6 of 2014 at the
time of its admission.

(e) The petitioner challenged the
order dated 15.02.2021 before this Court in
Writ Petition No.8445 (R/C) of 2021 which
was disposed of by this Court by its order
dated 25.03.2021 directing the Appellate
Court to hear and decide the application
bearing Paper No.A-138 for amendment of
the written statement on the next date fixed
that is on 26.03.2021 and thereafter decide
the Rent Appeal itself expeditiously.

(f) In the meantime the petitioner
had moved another application bearing
Paper No.C - 142 on 20.02.2021 praying
for recall of order dated 15.02.2021 and for
restoration
of
interim
order
dated
17.02.2014. The Appellate Court heard
such application for recall and restored the
interim order on 16.03.2021.

(g) The petitioner moved another
application Paper No.C-152 on 17.03.2021
for disposal of application, Paper No. C153 on 17.03.2021, and then another
application Paper No. C-158 while both
applications were pending the Appellate
Court passed an order on 26.03.2021 that
the counsel for the petitioner instead of
making submissions in support of the
amendment
application
bearing
Paper
No.A-138 had sought an adjournment.

(h) On 30.03.2021 the petitioner
filed another application bearing Paper
No.C-160 duly supported by an affidavit
bearing Paper No.C-161 for recall of order
dated 26.03.2021.

(i) The petitioner also made an
application
bearing
Paper
No.C-159
praying for the application for Recall to be
heard on 31.03.2021 itself. On 31.03.2021
the Appellate Court directed that the
application bearing Paper No.C-159 and C160 be listed on the next day that is on
1.4.2021. On the next day the applications
were not decided and the Rent Appeal was
directed to be listed on 6.04.2021 for final
hearing.

(j) The petitioner in the meantime
had moved a

Transfer Application before the
District Judge, Lucknow, and on 6.4.2021
the
Rent Appeal
was
adjourned
to
09.04.2021 on account of pendency of the
Transfer Application. The Rent Appeal
remained pending and was fixed for
13.08.2021 for hearing.

(k) The petitioner moved another
Application Paper No.C-179. The Court
remained
closed
on
14.08.2021
and
15.08.2021 on account of being Second
Saturday and Sunday. The next date fixed
in the matter was 17.08.2021. The
petitioner could not reach the Court on time
and later on enquired and it was found that
the Appellate Court had listed the Appeal
on 21.08.2021 for arguments.

(l) The Appeal was thereafter
adjourned to 24.08.2021 when it was
adjourned for hearing to 26.08.2021. On
26.08.2021 the counsel for the petitioner
found out that an ex-parte final judgement
had
been
rendered
on
26.08.2021
dismissing the Appeal.

(m)
The
petitioner
filed
Miscellaneous Case No.801 C of 2021
seeking restoration of the Rent Appeal and
for recall of ex-parte judgement. The
Appellate Court issued notice to the
Respondent fixing 5.10.2021 for hearing.

(n) In the meantime the petitioner
also filed a Petition No.23811 (R/C) of
2021 before this Court praying that
Miscellaneous Case No.801 C of 2021 be
directed to be decided expeditiously by the
Appellate Court. This Court by an order
dated 8.10.2021 directed the Appellate
Court to decide the Restoration Application
on the next date fixed or by hearing the
same on a day to day basis. The Appellate
1290 INDIAN LAW REPORTS ALLAHABAD SERIES
Court rejected the Miscellaneous Case
No.801 C of 2021 holding that the
judgement dated 26.08.2021 was not
passed in the absence of the counsel for the
petitioner and had been passed on merits.

(o) The petitioner challenged the
judgement dated 26.08.2021 in Petition
No.26690 (R/C) of 2021. This Court by its
order dated 23.11.2021 allowed the petition
and set aside the order dated 26.08.2021
with a finding that in the event of nonappearance of the counsel for the appellant,
the Appellate Court could only dismiss the
Rent Appeal No.6 of 2014 for want of
prosecution and could not render a
judgement on merits.

(p) It is the case of the petitioner
that during the COVID-19 Pandemic the
functioning of the Civil Court was severely
restricted with effect from 9.01.2022 and the
Courts were open only for a limited category
of cases. With effect from 16.01.2022 the
entry of litigants in the Civil Court was also
barred. The Appellate Court listed the matter
on 17.01.2022, 21.01.2022, 24.01.2022, and
27.01.2022 in quick succession but did not
indicate whether the matter would be heard
by virtual mode or the counsel were to appear
physically. On 27.01.2022 the petitioner was
directed to file written submissions within
one day and the Appeal was directed to be
listed on 29.01.2022. It was adjourned on
29.01.2022 and listed on 3.02.2022. The
matter was again listed on 8.02.2022 and
11.02.2022 on which dates the counsel for the
petitioner could not enter the Courts premises
because entry was prohibited as per Covid-19
Protocol. Regular hearing in the Civil Court
commenced only with effect from 14.02.2022
therefore, it has been argued that the nonappearance
of
the
petitioner/appellant
recorded in the order sheet on successive
dates appears to be deliberate on the part of
the Appellate Court. No hearing took place
on all such dates as the counsel for the
petitioner did not appear. The Appellate Court
fixed the matter on 14.02.2022 for delivery of
judgement but later on, adjourned the matter
to 24.02.2022 giving time to the counsel for
the petitioner to appear and argue the matter
or to file written submissions. The counsel for
the petitioner did not appear and did not file
any written submissions in support of the
Appeal on 24.02.2022 and the Appeal was
fixed for judgement on 2.03.2022 without
hearing the counsel for the petitioner. On
2.03.2022 the judgement was delivered
rejecting the Appeal on merits and recording
that no oral or written submissions have been
made by the Appellant in support of the
Appeal."

(13) From a perusal of the judgment
and order impugned this Court finds that
the Appellate Court has observed that
despite several opportunities being given to
the appellant for arguing the Appeal on
merits, such opportunity was not availed of
whereas in the judgments of the High Court
dated
11.01.2018,
25.03.2021
and
29.03.2021 it had directed the Appeal to be
decided within six months, 15 days
respectively or as expeditiously as possible,
and the latest judgment of this Court in
Petition No.26690 (R/C) of 2021 on
23.11.2021 had directed that the Appeal be
decided within two months and that the
Appellant
would
not
seek
any
adjournments. The counsel for the appellant
had not appeared.

(14) The Appellate Court has made
certain observations with regard to conduct
of the counsel for the appellant which are
necessary to be quoted for a better
appreciation of the controversy:-

**izR;FkhZ ds fo}ku vf/koDrk ds rdksZa
dks lquk rFkk mudh vksj ls nkf[ky fyf[kr rdksZa
dks voyksdu fd;k x;kA vihykFkhZ dh vksj ls
4 All. Hanuman Prasad Mishra Vs. Chandra Mohan Purswani
1291
Ik;kZIr volj fn;s tkus ds mijkUr Hkh dksbZ
ekSf[kd ;k fyf[kr rdZ izLrqr ugha fd;s x;sA

ekuuh; mPp U;k;ky; }kjk vius
vkns'k fnukafdr 23&11&2021 ds }kjk bl
U;k;ky; }kjk ikfjr fu.kZ; ,oa vkns'k fnukafdr
26&08&2021 dks vikLr djds i=koyh dks nks
ekg ds vUnj vihykFkhZ dks lqudj fof/k lEer
vkns'k ikfjr djus ds fy, funsZf'kr fd;k x;k
FkkA ekuuh; mPp U;k;ky; ds vkns'k ds vuqdze
esa izR;FkhZ }kjk fnukad 13&12&2021 dks ekuuh;
mPp U;k;ky; ds vkns'k dh izekf.kr izfr izLrqr
dh x;h] uksfVl tkjh fd;s tkus ds mijkUr
fnukad 24&12&2021 dks Lo;a vihykFkhZ gkftj
vk;k vkSj mlds }kjk ekuuh; mPp U;k;ky; ds
mDr vkns'k dh gh izfr nkf[ky dh x;hA ekuuh;
mPp U;k;ky; ds vkns'k ds voyksdu ls ;g
fofnr gksrk gS fd ekuuh; mPp U;k;ky; }kjk
nksuksa i{kksa dks lqudj mDr vkns'k ikfjr fd;k
x;k gS fd v/khuLFk U;k;ky; nks ekg ds vUnj
vihykFkhZ dks lquokbZ dk ekSdk nsdj fof/klEer
vkns'k ikfjr djuk lqfuf'pr djsaA

;gkWa ;g Hkh mYys[kuh; gS fd ekuuh;
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bl rdZ ij /;ku nsrs gq, ;g vfHker fn;k x;k
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}kjk fnukad 07&01&2022 dks LFkkukUrj.k
izkFkZuk&i= la[;k 30@2022] ekuuh; tuin
U;k;k/kh'k egksn; ds ;gkW izLrqr fd;k x;k] ftl
ij nksukas i{kksa dks foLrkjiwoZd lqudj fnukad
21&01&2022 dks LFkkukUrj.k izkFkZuk&i= fujLr
dj fn;k x;kA ekuuh; tuin U;k;k/kh'k egksn;
us vius mDr vkns'k fnukafdr 21&01&2022 ds
}kjk vihykFkhZ dh iwjh xfrfof/k rFkk bl i=koyh
dk fuLrkj.k u gksus nsus ds vkpj.k dk fof'k"V
:i ls mYys[k fd;k x;k gSA उक्त आदेश
पाररत िोने के उपरान्त न्यायालय द्वारा
अप़ीलार्थी को सुनवाई के सलए कई बार अवसर
सदया गया लेसकन यि जानबूझकर न्यायालय के
समक्ष नि़ीं आये और उनके जूसनयर असधवक्ता
आडारश़ीि पर आदेश पाररत िोने के बाद सतसर्थ
क़ी जानकाऱी प्राि करके चले जाते िैं।

उल्लेिऩीय िै सक मानऩीय उच्च
न्यायालय द्वारा पाररत आदेश सदनांसकत 23-112021 से लेकर आज तक कई सतसर्थयां सनयत
िोने तर्था मानऩीय उच्च न्यायालय के द्वारा प्रदत्त
दो माि क़ी समय स़ीमा समाि िो गय़ी िै,
लेसकन पयााि अवसर सदये जाने के बाद ि़ी
अप़ीलार्थी क़ी ओर से न तो कोई सलण्डित बिस
दाण्डिल क़ी गय़ी और न ि़ी व्यण्डक्तगत रूप से
उपण्डस्र्थत िोकर मौण्डिक बिस क़ी गय़ी, जबसक
मानऩीय उच्च न्यायालय द्वारा अपने पररपत्र
संख्य:
2419/LXXXVII-CPC/eCourts/Allahabad सदनांसकत 02-01-2022 क़ी
गाइडलाइन के पैरा-6 में यि सनदेसशत सकया
गया िै सक पक्षकार अपऩी सलण्डित बिस
कम्प्यूिर सेक्सन में दाण्डिल कर सकते िैं तासक
न्यायालय द्वारा उक्त सलण्डित बिस के आधार
पर सनणाय पाररत सकया जा सके। उक्त पररपत्र
के अनुिम में अप़ीलार्थी को पयााि एवं समुसचत
अवसर प्रदान सकये जाने के उपरान्त ि़ी उनके
द्वारा कोई सलण्डित बिस दाण्डिल नि़ीं क़ी गय़ी
और न ि़ी मौण्डिक बिस िेतु उनक़ी ओर से
कोई न्यायालय के समक्ष उपण्डस्र्थत हुआ।

यि ि़ी उल्लेिऩीय िै सक अप़ीलार्थी
क़ी ओर से प्रस्तुत स्र्थानान्तरण प्रार्थाना पत्र पर
बिस िेतु मानऩीय जनपद न्यायाध़ीश मिोदय
के समक्ष अप़ीलार्थी उपण्डस्र्थत हुए और उनक़ी
ओर से मौण्डिक बिस ि़ी क़ी गय़ी। उनका यि
आचरण यि प्रदसशात करता िै सक अप़ीलार्थी
जानबूझकर इस अप़ील को ekuuh; mPp
U;k;ky; }kjk fu/kkZfjr le; lhek ds vUrxZr~
fuLrkfjr ugha gksus nsuk pkgrs gSaA pwWfd ekuuh;
mPp U;k;ky; अप़ीलार्थी जानबूझकर इस अप़ील
को मानऩीय उच्च न्यायालय द्वारा प्रदत्त दो माि
क़ी समय स़ीमा व्यत़ीत िो x;h िै, और न्यायालय
द्वारा अप़ीलार्थी को सौण्डिक बिस अर्थवा
सलण्डित बिस िेतु बाध्य नि़ीं सकया जा सकता
जबसक वि जानबूझकर दुराशय से न्यायालय के
समक्ष मौण्डिक अर्थवा सलण्डित बिस प्रस्तुत नि़ीं
करना चािते। इससलए इस अप़ील के सनस्तारण
1292 INDIAN LAW REPORTS ALLAHABAD SERIES
में और सवलम्ब सकया जाना समुसचत नि़ीं िोगा।
बण्डल्क पत्रावल़ी पर उपलब्ध समस्त प्रलेि़ीय
साक्ष्यों के आधार पर अप़ील का सनस्तारण
गुणदोष के आधार पर सकया जाना न्यायसंगत
िोगा तदनुसार पत्रावल़ी पर उपलब्ध समस्त
प्रलेि़ीय साक्ष्यों के आधार पर अप़ील का
सनस्तारण गुणदोष के vkk/kkj ij fd;k tk jgk
gSA**

(15) It has been argued on behalf of
the learned counsel for the petitioner that
this Court had stopped the Subordinate
Courts
from
hearing
the
counsels
physically and he has referred to guidelines
issued by the High Court, dated 16.01.2022
wherein in addition to earlier guidelines,
the High Court had directed the District
Judge to ensure 50% of the Judicial
Officers of the total strength to attend the
Court on time on rotation basis and that
Judicial Officers and staff who were in the
Family way were to be allowed work from
home
and
the
litigants
and
their
representatives would be prohibited in the
Court premises but in urgent cases with
prior permission of the District Judge, Such
persons may be allowed to enter the Court
premises. These guidelines were to be
effective from 17.01.2022 till further
orders.

(16) Shri B.K. Saxena, who appears
for the respondent has on the other hand,
referred to the Guidelines dated 06.02.2022
and 13.02.2022. In 06.02.2022 Guidelines
Direction No.1 of the Guidelines issued on
16.01.2022 was withdrawn and all Judicial
Officers were directed to function in Court.
Point No.7 in the Guidelines issued on
09.01.2022 also stood withdrawn but the
remaining Guidelines were to operative
with
Modification
with
effect
from
08.02.2022. In the Guidelines issued on
13.02.2022, the High Court had directed all
the Courts to remain open and to take all
Judicial Work and Administrative matters
as per applicable Provisions and Rules and
Circulars issued from time to time. The
Courts were directed not to close even if
Covid-19 Positive cases was found in the
Court Campus but would continue to work
after complete sanitization. The Presiding
Officer was directed to take all possible
steps to ensure that limited number of
parties/counsel are present anyone time for
court proceedings, but should not prevent
appearance of the parties in the case unless
for reasons of illness. Masks were directed
to be used as well as sanitizer and social
distancing guidelines were to be followed
in
the
Court
premises.
Necessary
cooperation
from
concerned
Bar
Association was to be sought to restrict
/prohibit the entry of the necessary
Advocates /Litigants into Court premises.
The Advocates/Litigants were to leave the
Court rooms/campus, as soon as their
matter was over and only such Advocates
and Litigants were to be permitted to enter
into
the
Court
Premises
whose
cases/matters were listed on a particular
date.

(17) It has been submitted by Shri B. K.
Saxena, that Courts started functioning
physically in a limited manner with effect
from 08.02.2022 and after the guidelines
were issued on 13.02.2022 all Courts started
functioning in full strength. The entry of
Advocates whose matters were urgent were
not prohibited at any point of time. The
Advocates whose matters were listed were
permitted to enter into Court premises and
were asked to leave after their matter was
over. He has referred to the orders passed by
the Appellate Court which have also been
referred to by the learned counsel for the
petitioner i.e. the orders dated 11.02.2022
filed at Page no.65 of the paper book,
4 All. Hanuman Prasad Mishra Vs. Chandra Mohan Purswani
1293
wherein the Appellate Court had observed
that on calling out of the case, the counsel for
the respondent was present. The counsel for
the appellant was not present, no written
submissions were filed by the appellant. The
matter was directed to be listed on
14.02.2022. On 14.02.2022 the counsel for
the appellant failed to appear and did not file
written statements whereas the respondents
written submissions had already been filed
and respondents counsel was present. The
Court looking into the Covid-19 Pandemic
gave the appellant one more opportunity to
appear and argue the matter and also to file
written submissions. The Court directed the
matters to be listed again on 24.02.2022. On
24.02.2022 again no one appeared on behalf
of the appellant, no written submissions were
filed. The Court had noted that counsel for
the respondent was present in Court. The
Court directed the matter to be listed on
02.03.2022 for the delivery of judgment. It
has been argued by Shri Saxena, that counsel
for the respondents was present on every
date. The counsel for the appellant, however,
did not appear. If the entry of Advocates was
prohibited in Court campus even counsel for
the respondent could not have appeared.

(18) This Court has perused the
Guidelines issued by the High Court and it
appears that physical functioning of the
Subordinate Courts and Tribunals was
affected for sometime with effect from
08.02.2022.
All
the
Courts
started
functioning and also presence of counsels
were not restricted and they could apply for
permission in urgent matters to the District
Judge to appear before the court concerned.
However, they had to leave the Court as
soon as their matter was over.

(19) It is apparent from the order
passed by this Court on earlier dated
23.11.2021 that the Court had given only
two months time from the date of
production of certified copy of the order
before
the Appellate
Court
for
the
Appellate Court to decide the matter and
the petitioner was directed not to take any
adjournments. The Court had reiterated its
earlier orders where this High Court had
directed the Appellate Court to decide the
Appeal as expeditiously as possible. This
Court has also noticed from the Appellate
Court's order that this Court's order was not
produced by the appellant initially before
the Appellate Court and the respondent
filed the order before the Appellate Court
on 13.12.2021. Thereafter a date was fixed
for arguments after issuance of notice to the
appellant.

(20) From the facts as mentioned in
the pleadings on record and as have come
out from the judgment and order dated
02.03.2022, this Court is of the considered
opinion that there was no contemptuous
disregard of this High Court's directions
dated 23.11.2021 by the learned Appellate
Court. It is apparent that the respondent has
a decree in his favour of the learned Trial
Court since 24.12.2013. The Execution
case has already been filed by the
respondent which is pending before the
court concerned. The release application
was filed by the respondent in 2002. The
respondent has not been able to get
peaceful vacant possession of the premises
in question for the past ten years.

(21) This Court has also considered the
judgment of the learned Trial Court as well as
the Appellate Court on its merits and has
found that the learned Trial Court and the
Appellate Court have both noticed that the
Landlord wished to establish an independent
business of running a Restaurant on the
premises in question which was commercial
in nature and the Landlord had also stated
1294 INDIAN LAW REPORTS ALLAHABAD SERIES
that when his Restaurant would start running
smoothly and profitably, then he would shift
his family from the First Floor and the
Second Floor and take another residential
accommodation, and start using the building
in question as a Hotel after taking due
permissions and making alterations as are
necessary in the construction. The learned
Trial Court as well as the Appellate Court
have noticed that the building in question was
situated in Arya Nagar, Naka Hindola, with
Aishbagh Road on the North and a PWD
Road on the South and it is a busy
Commercial area which has hundreds of
Restaurants/Hotels for travellers as it was
close to Charbagh Railway Station and the
Airport. The need of the Landlord was found
genuine and bonafide.

(22) With regard to the comparative
hardships, the Appellate Court has relied
upon judgments of the Supreme Court and of
this Court namely Shiv Swaroop Gupta Vs.
M.C. Gupta reported in AIR (2001) SC
2896 that if the tenant fails to look for
alternative accommodation even during long
pendency of release application, the issue can
be decided in favour of the Landlord.

(23) The proposition in law having been
correctly appreciated and also the facts as
mentioned in the pleadings on record, this
Court sitting in limited jurisdiction under
Article 227 of the Constitution of India, does
not find any good ground to show
interference in the order impugned.

(24) The petition stands dismissed.

(25) No order as to costs.

(26) Learned Senior counsel at this
stage, has requested that some time be
given to the petitioner to vacate the
premises. The petitioner shall vacate the
premises within two months from today
and shall continue to pay rent/damages as
directed by the learned Trial Court during
the time of his possession till such time that
he delivers vacant and peaceful possession
to the Landlord the rent, if any has already
been deposited by the petitioner, shall be
adjusted in such dues as are admissible to
the Landlord.

(27) Since this Court has not
interfered in the order of the learned Courts
below, it is expected that the Landlord shall
give two years of rent that he had offered
for the property which was commercial, as
compensation
to
the
tenant
on
his
delivering vacant and peaceful possession
of the shop in question to the Landlord.
----------
(2022)04ILR A1294
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.02.2022

BEFORE

THE HON'BLE MOHD. ASLAM, J.

Matters U/A 227 No. 868 of 2021

Chhaila Khan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Mahabir Yadav, Sri Najakat Ali, Sri Ram
Awtar, Sri R.A. Rao

Counsel for the Respondents:
A.G.A.

Criminal Law - Code of Criminal Procedure
-Allegation of forgery against the TahsildarCognizance only taken if sanction u/s 197
Cr.P.C. granted by the Government-Lower court
rightly held that without sanction the court
cannot take cognizance.