# Praveen Kumar Mishra v. Dr. Gaurav Mishra & Anr

- **Citation:** (2023) 7 ILRA 762
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-31
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/praveen-kumar-mishra-v-dr-gaurav-mishra-anr-50615
- **Pages:** 6

## Headnote

rejected-order
attained
finality-execution
application pending-possession of shop handed
over
to
plaintiff
No.
2-Execution
Court
proceeded
to
pass
order
directing
respondent/plaintiff No. 2 to hand over the
possession of shop to respondent/plaintiff No.
3-once bonafide need is set up in favour of coplaintiff-Execution Court has full right to
proceed and pass order for possession of
property -in favour of co-landlord for whom
bonafide need was set up.

W.P. dismissed. (E-9)

List of Cases cited:

## Text

762 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2023) 7 ILRA 762
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters U/A 227 No. 4795 of 2023 (Civil)

Praveen Kumar Mishra ...Petitioner
Versus
Dr. Gaurav Mishra & Anr. ...Respondents

Counsel for the Petitioner:
Sri Pankaj Agarwal, Sri Gaurav Tripathi

Counsel for the Respondents:
Sri Ramesh Chandra Agrahari, Sri Anoop
Trivedi (Sr. Adv)

Execution proceeding - Release Application
filed by plaintiffs-allowed-Appeal and Writ
rejected-order
attained
finality-execution
application pending-possession of shop handed
over
to
plaintiff
No.
2-Execution
Court
proceeded
to
pass
order
directing
respondent/plaintiff No. 2 to hand over the
possession of shop to respondent/plaintiff No.
3-once bonafide need is set up in favour of coplaintiff-Execution Court has full right to
proceed and pass order for possession of
property -in favour of co-landlord for whom
bonafide need was set up.

W.P. dismissed. (E-9)

List of Cases cited:

1. Tamil Nadu Buildings (Lease and Rent
Control) Act K.VS Muthu Vs Anga Muthu Ammal:
AIR1997 SC 628

2. Sri Ram Gupta Vs Prescribed Authority/Civil
Judge (S.D.), Kanpur Dehat & ors.

3. Syed Asadullah Kazmi Vs A.D.J.: 1981 ARC 542

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Pankaj Agarwal, learned
counsel for petitioner and Sri Anoop
Trivedi, learned Senior Counsel assisted by
Sri Ramesh Chandra Agrahari, learned
counsel for respondents.

2. Present petition has been filed
seeking following relief:-

"It is, therefore, most respectfully
prayed that this Hon'ble Court may be
pleased to call for the records of the court
below and set aside the impugned order
dated 10.04.2023 passed by Additional
Judge Small Causes Court No. 2, Kanpur
Nagar in Execution Case No. 02/23/2022
and
allow
the Execution
Case
No.
206/23/2022 and also allow the instant
petition striking of the said execution in its
full satisfaction in view of the fact that the
tenant-respondent IInd Set had delivered
possession to the petitioner in the capacity
of the owner and landlord of the shop in
question; and/or such other and further
order be passed as is expedient in the
interest of justice."

3. Since, only legal question is
involved in the present petition, therefore,
with the consent of parties, without inviting
for affidavits, petition is being decided at
the admission stage itself.

4. Brief facts of this case are that
Release Application dated 22.07.2008 has
been filed by three plaintiffs, which was
registered as P.A. Case No. 5 of 2008.
During the pendency of the said Release
Application, plaintiff No. 1, mother of
plaintiff No. 2 and grandmother of plaintiff
No. 3 died. The Release Application was
ultimately
allowed
vide
order
dated
13.01.2020, against which, Rent Appeal
No. 16 of 2020 has been filed by tenantrespondent, which was dismissed by the
7 All. Praveen Kumar Mishra Vs. Dr. Gaurav Mishra & Anr.
763
District Judge vide order dated 24.01.2022.
The
tenant-respondent
preferred
Writ
Petition under Article 227 before this
Court, being Civil Misc. Writ Petition No.
1343 of 2022, which was also dismissed by
this Court vide order dated 08.03.2022. The
order dated 13.01.2020 passed in P.A. Case
No. 5 of 2008 has attained finality.

5. Sri Pankaj Agarwal, learned
counsel for petitioner submitted that for
execution of order dated 13.01.2020, two
execution applications have been filed; one
by
petitioner-plaintiff
No.
2
dated
15.10.2022 and another by plaintiff No. 3
dated 02.03.2022. Both the execution
applications are still pending for final
disposal. It is next submitted that during the
pendency
of
execution
proceeding,
possession of shop was handed over to
plaintiff No. 2, therefore, it is required on
the part of Execution Court to close the
proceedings, but instead of that, Execution
Court has proceeded to pass order dated
21.03.2023 directing respondent/plaintiff
No. 2 to hand over the possession of shop
to respondent/plaintiff No. 3. He firmly
submitted that once the possession is given
to any of the landlord, Execution Court has
no authority to proceed with the execution
proceedings
in
absence
of
collusion
between tenant or landlord.

6. It is further submitted that said
order was challenged before this Court by
filing Matters Under Article 227 No. 3373
of 2023, which was disposed of vide order
dated 28.03.2023 with direction to the
Execution Court/Prescribed Authority to
decide both the applications within 10 days
from production of certified copy of order.
Order dated 28.03.2023 was served upon
the Execution Court on 31.03.2023, but at
that time, Advocates at Kanpur District
Court were on strike, therefore, parties
were appeared in person. In the present
case, due to strike of Advocates, petitionerplaintiff No. 2 has sought adjournment vide
application dated 06.04.2023, but without
hearing counsel for parties, judgment was
reserved on 07.04.2023 and ultimately
pronounced on 10.04.2023.

7. Learned counsel for petitioner has
assailed the impugned order on two
grounds; first ground which is taken in
Matters Under Article 227 No. 3373 of
2023 that once the possession is handed
over to one of the landlord, it is required on
the part of Execution Court to close the
proceedings. Secondly, impugned order has
been passed without hearing petitionerplaintiff No. 2. In fact his presence was
recorded in the court room as the Judge
was sitting in his Chamber and without
hearing his counsel, order has been passed,
which is in gross violation of principle of
natural justice.

8. Per contra, Sri Anoop Trivedi,
learned
Senior
Counsel
vehemently
opposed the submissions of counsel for
petitioner and submitted that so far as
present controversy is concerned, same
issue was subject matter of Writ Petition
No. 20599 of 2007 (Sri Ram Gupta vs.
Prescribed Authority/Civil Judge (S.D.),
Kanpur Dehat and Ors., in which, this
Court after framing the questions, has
replied the same and the questions so
framed by the Court are exactly same
which is in dispute before this Court. He
next submitted that Court has considered
this fact that bona fide need was set up in
favour of co-landlord whereas tenant has
given possession to another co-landlord and
Court after framing questions, has replied
that Prescribed Authority committed patent
error of law in rejecting the application for
delivery of possession filed under Section
764 INDIAN LAW REPORTS ALLAHABAD SERIES
23 of the Act by the petitioner-landlord,
simply on the ground that the possession
has been delivered to a co-landlord. He
further submitted that as the facts are same,
therefore, ratio of law laid down is very
well applicable in this case also.

9. So far as issue of hearing of parties
is concerned, he firmly submitted that the
presence of parties is very well recorded by
the Prescribed Authority, therefore, oral
averments contrary to the findings of Court
cannot be accepted, if not supported by the
conclusive evidence.

10. In his rejoinder argument, Sri
Pankaj Agarwal submitted that in the
matter of Sri Ram Gupta (Supra), there was
issue of collusion between co-landlord and
tenant whereas in the present case, there is
no allegation of collusion between the
parties and possession has admittedly
handed over to the petitioner by the tenant,
therefore, this judgment would not be
applicable in the present case.

11.

I
have
considered
rivals
submissions made by counsel for parties
and perused the records as well as
judgments cited above.

12. Brief facts of the case is that earlier
a suit was filed by plaintiff Nos. 1, 2 & 3
against the defendants setting the bonafide
need of plaintiff No. 3. During the pendency
of proceeding, plaintiff No. 1 died and
ultimately suit was allowed. Upon that, two
execution applications were filed; one by
plaintiff No. 2 and another by plaintiff No. 3.
It is undisputed that suit was filed on the
ground of bonafide need of plaintiff No. 3
and during the pendency of execution
proceeding, defendant has given possession
to plaintiff No. 2. Issue before the Court is as
to whether after possession, proceeding shall
continue before the Execution Court or not
and further Execution Court can pass order
directing plaintiff No. 2 to hand over
possession to plaintiff No. 3, for whom
bonafide need was set up.

13. Similar issue was subject matter of
this Court in the matter of Sri Ram Gupta
(Supra) and while deciding the same, Court
has framed two issues, which is quoted
below:-

"8. The following two issues on
these facts fall for consideration in the present
petition:-

(1) Whether an application for
delivery of possession of the released
property is liable to be rejected, where the
tenant alleges that he has delivered the
possession to a co-landlord, whose need was
not set up and/or the possession has not been
handed over to a co-landlord whose need was
subject-matter of release proceedings?

(2) Whether there is collusion in
between the respondent Nos. 2 and 3? Taking
the first point first let us have a look to the
provisions of section 23 of the Act.

Section 23 of the Act reads as
follows:-

Enforcement of Eviction Order.--
(1) The prescribed authority may use or
caused to be used such force as may be
necessary for evicting any tenant against
whom an order is made under section 21 or
on appeal under section 22, as the case may
be, or against any person found in actual
possession, and for putting the landlords into
possession.

(2) Every order of the prescribed
authority in proceedings under this section
shall be final."

14. First issue is relevant for the
present controversy and the same was
replied
in
foregoing
paragraphs
i.e.
7 All. Praveen Kumar Mishra Vs. Dr. Gaurav Mishra & Anr.
765
Paragraph Nos. 9 to 14, which are quoted
below:-

"9. The section 23 casts statutory
obligation; (1) to evict any tenant against,
whom an order has been made; or (2)
against any other person found in actual
possession; and (3) put the landlord into
possession. The word 'landlord' in this
provision (section 23) should have a
restricted meaning. 'Landlord' has been
defined in section 3(j) of the Act. The
relevant portion is quoted below:-

In this Act unless the context
other wise requires:-

a..... ...... ......

b ..... ...... ......

c..... ...... ......

d ..... ...... ......

j.
"landlord"
in
relation
to
building, means a person to whom its rent
is or if the building, were let would be,
payable and includes, except in Clause(g),
his agent or attorney, of such person.

10. The definition of 'landlord' as
given in the definition clause is subject to
"unless the context otherwise requires".
Admittedly the release was sought for and
was granted for the need of Shri Ram
Gupta, the petitioner, landlord. Sri Ram
Chandra Gupta's need was not set up in the
release application. He was the co-landlord.
The word 'landlord' in section 23 shall draw
its colour from the word 'landlord' used in
section 21 of the Act. As a matter of plain
grammatical construction it is obvious that
the word 'landlord' under section 23 of the
Act should be interpreted with reference to
section 21(1)(a).

11. The Supreme Court in a case
under Tamil Nadu Buildings (Lease and
Rent Control) Act K.V. Muthu v. Anga
Muthu Ammal: AIR1997 SC 628, has held
that the effect of words 'unless context
otherwise requires' in the definition clause
has to be read in the light of the context and
scheme of the Act as also the object for
which the Act was made by the Legislature.
While interpreting the definition, it has to
be borne in mind that interpretation placed
on it should not be repugnant to the
context. It should be such as it would aid
the object which is sought to be served by
the Act. A construction which would defeat
or is likely to defeat the purpose of the Act
has to be ignored and not accepted. If a
wider meaning is given to landlord to
include the whole body of the landlords
under section 23 of the Act, it would defeat
the very purpose and object of section 21 of
the Act. Section 24 of the Act gives option
of re-entry to the tenant evicted in the
proceedings under section 21 of the Act.
The object of the Act will be achieved only
when the possession of the release
accommodation
is
delivered
to
that
landlord for whom it was released.

12. The Supreme Court in the
case of Syed Asadullah Kazmi v. A.D.J.:
1981 ARC 542 had an occasion to interpret
section 23 of the Act. It has been
interpreted by the Supreme Court that once
the release order having become final it
cannot be reopened by the prescribed
authority on the ground of subsequent
events. The Supreme Court has observed as
follows:

Plainly,
the
order
dated
25thMarch, 1997 of the appellate authority
releasing a portion of the premises in
favour of the third respondent and leaving
the remaining portion in the tenancy of the
appellant
acquired
finality
when
the
proceedings taken against it by the
appellant failed. The order having become
final was found to give effect to it. In doing
so, the prescribed authority was not acting
outside its jurisdiction or contrary to
law..........................the order for release of
a portion of the accommodation acquired
766 INDIAN LAW REPORTS ALLAHABAD SERIES
finality before the death of Raj Kumar
Sinha and the controversy concluded by it
could not be reopened.

13. In view of the above
discussion, the word 'landlord' used in
section 23 of the Act should be understood,
in case there are more than one landlords,
the landlord for whose need the release
application was allowed. In other words,
the word 'need' of landlord has a nexus with
the particular landlord in case of colandlords. Reverting to the facts of the
present case it is axiomatic that the shop in
dispute was released for the need of the
present petitioner-landlord namely Shri
Ram Gupta to whom, admittedly, the tenant
has not delivered the possession of the shop
in question. This being the position, the
prescribed authority committed patent error
of law in rejecting the application for
delivery of possession filed under section
23 of the Act by the petitioner-landlord,
simply on the ground that the possession
has been delivered to a co-landlord.

14. The above view finds support
from section 24 of the Act which provides
an option of re-entry by the tenant. It
provides that where a building is released
in favour of the landlord and the tenant is
evicted under section 21 or on appeal under
section 22, and the landlord puts any
person different from the person for whose
occupation according to the landlord's
representation, the building was required,
or the landlord omits to occupy it within
one month or such extended time as the
prescribed authority for sufficient cause
allow from the date of his obtaining
possession, the tenant will have an option
of re-entry"

15. In the case of Sri Ram Gupta
(Supra), shop in dispute was released for
the
need
of
petitioner-landlord
and
admittedly, tenant has not delivered the
possession of the shop in question, upon
which, application was filed under Section
23 of the Act which was rejected on the
ground that possession has been delivered
to co-landlord. Court has depreciated the
same and has taken view that it is patent
error of law in rejecting the application and
allowed the petition with cost of Rs.
10,000/-. Court has also held that it is also
getting support from Section 24 of the Act
which provides option of re-entry by the
tenant in such matters. Meaning thereby,
the property in question must have been
given to the person in whose favour,
bonafide need has been set up.

16. From the perusal of issue No. 1
and its reply, it is apparently clear that facts
of the present case are exactly same and
Court has taken a firm view that once
bonafide need is set up in favour of coplaintiff, Execution Court has full right to
proceed with and pass order for possession
of property in question in favour of colandlord for whom bonafide need was set
up.

17. Further, from the perusal of order
sheet, it is apparently clear that though
there was strike in Kanpur District Court,
but both the parties were present and after
hearing them, Court has passed order
complying the direction of this Court dated
28.03.2023 passed in Matters Under Article
227 No. 3373 of 2023, therefore, such
allegation not supported with conclusive
evidence cannot be accepted.

18. Learned counsel for petitioner has
also argued about the collusion and
submitted that this judgment would be
applicable in case of collusion between the
co-landlord and tenant which cannot
accepted. Court was conscious enough with
the facts, therefore, while framing the
7 All. Raj Kumar @ Rajendra Srivas & Ors. Vs. Mohd. Kaukab Azim Rizvi & Anr.
767
issues, has framed first issue with regard to
legal question involved in the matter. Issue
No. 1 was based only on the facts of that
case and squarely covers the dispute before
this Court. Second issue is dealt with
collusion and that too is not coming in the
rescue of petitioner-plaintiff No. 2 as that
does not laid down any ratio of law.
Therefore, this argument of petitioner is
also having no force.

19. Therefore, under such facts and
circumstances of the case as well as law
laid down by this Court, petition lacks
merit and is, accordingly dismissed.

20. No order as to costs.
----------
(2023) 7 ILRA 767
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters U/A 227 No. 5480 of 2023

Raj Kumar @ Rajendra Srivas & Ors.
 ...Petitioners
Versus
Mohd. Kaukab Azim Rizvi & Anr.
 ...Respondents

Counsel for the Petitioners:
Sri
Chandra
Prakash
Kushwaha,
Sri
Ramendra Asthana

Counsel for the Respondents:

Surety so placed is photocopy of the sale deed -
for compliance of Section 17 of Act, 1887-surety
can be accepted in accordance with the
provisions of Section 145 of CPC- which
provides enforcement of liability of surety -
Section 145(II) of CPC provides furnishing of
security of property by sale, which may be sold
out to the extent of security-surety should have
been of the nature which may be sold out as
and when required-such surety cannot be
accepted-photocopy
can
be
accepted
as
secondary evidence-it is not a case of evidencebut a case of surety-photocopy of the sale deed
cannot be accepted as surety u/s 17 of Act,
1887 read with Section 145 of CPC. (E-9)

List of Cases cited:

1. S. Kaladevi Vs VSR. Somasundaram & ors.;
2010(3) JT 610

2. Ishtiaq Hussain Vs Ashfaq Hussain (Civil
Revision No. 132 of 1984)

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Ramendra Asthana,
learned counsel for petitioners.

2. Present petition has been filed
seeking following reliefs:-

"(a) set aside the judgments and
orders dated 21.02.2023 passed by learned
Additional District and Sessions Judge
H.J.S.
Banda,
dismissing
the
S.C.C.
Revision No. 19/2019, (Raj Kumar @
Rajendra Srivas, now dead through L.Rs.,
Mohd. Kaukab Azim Rizvi and another)
and 12.12.2019 passed by learned Civil
Judge (Junior Division) Banda rejecting
Application 8(Ga) in Misc. Case No.
49/70/2018 Raj Kumar @ Rajendra Srivas
vs. Mohd. Kaukab Azim and another) and
05.09.2013 passed by learned Civil Judge,
Junior Division, Banda decreeing ex parte
S.C.C. Suit No. 04/2011 Mohd. Kaukab
Azim Rizvi and another vs. Raj Kumar
Srivas."

3. Learned counsel for petitioners
submitted that in case an unregistered sale
deed is produced before the Court as surety,
same should have been accepted and