# Ram Bachani v. A.D.J. Lucknow

- **Citation:** (2023) 9 ILRA 548
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-21
- **Case number:** Writ-C No. 1005717 of 2009
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-bachani-v-a-d-j-lucknow-50845
- **Pages:** 9

## Headnote

Civil Law - Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 -
Sections 4 & 7 - Code of Civil Procedure,
1908 - Order 22 Rule 6 - Tenant was duly
represented
by
petitioner
before
prescribed authority - Petitioner appeared
on 03.04.2002 and signed order-sheet -
Written submissions on behalf of tenant
were filed on 04.08.2002 - Respondent's
death
on
06.08.2002
did
not
abate
proceedings, as judgment was based on
written submissions and delivered on
03.10.2002 - Petitioner contended that
Prescribed Authority lacked jurisdiction as
tenancy predated Act, 1971 - Said issue
9 All. Ram Bachani Vs. A.D.J. Lucknow
549
was not raised before Prescribed Authority
or Appellate Court - Question as to when
tenancy was created or when petitioner or
his predecessor in interest became tenant
is a mixed questions of fact and law, it
cannot be raised for first time in writ
proceedings - Appeal was also dismissed
for lack of locus, as no leave to appeal was
sought or granted - No ground has been
taken to challenge this finding, nor was
any argument advanced - Sale letter
transferred only business of M/s A. James
& Co., not tenancy rights - It specifically
allowed petitioner to obtain fresh lease
from owners - Petitioner neither informed
nor obtained consent from respondentbank before occupying tenanted premises
- Unauthorized possession does not confer
tenancy
rights
or
status
as
legal
representative
of

original
tenant
-
Petitioner had no locus standi to file
appeal - As no arguments made on this
issue, appellate court's findings require no
interference. (Para 23, 25, 26)

Writ Petition dismissed. (E-13)

List of Cases cited:

## Text

548 INDIAN LAW REPORTS ALLAHABAD SERIES
The exercise of power, as has been done in
the present case, is clearly de hors the
provisions of the Act and the Rules as well
as
the
Notification
issued
by
the
respondents itself.

25. Indian Stamps Act, 1989, being a
fiscal statute, the provisions thereof have to
be strictly interpreted. Supreme Court in
the case of Swedish Natch AB Vs. SEBI,
2004 (11) SCC 641 and CIT Vs. Ajax
Products Ltd., 55 ITR 741 has held that
while interpreting the provisions of fiscal
legislation courts should neither add nor
subtract a word from the provisions of
instant meaning of the sections. It may be
mentioned that the foremost principle of
interpretation of fiscal statutes in every
system of interpretation is the rule of strict
interpretation which provides that where
the words of the statute are absolutely clear
and unambiguous, recourse cannot be had
to the principles of interpretation other than
the literal rule.

26. Accordingly, while interpreting
such a statute, equitable considerations
cannot be applied. A taxing statute has to be
interpreted in accordance with what is
clearly
expressed
therein.
While
interpreting such a statute and determining
the liability to pay tax, the provisions are
required to be construed strictly. In other
words, the rule of literal construction must
be applied while interpreting a taxing
statute. It must be interpreted in terms of
the natural construction of the words used.
There is no scope to imply anything which
is not expressly provided. There is no scope
for application of equitable principles while
deciding levy of stamp duty. Present case
cannot be decided on the basis of equity
and this Court is of the considered view
that the provisions of Section 47-A of the
Stamp Act do not provide for levy of stamp
on the instruments which have previously
been exempted by valid notification of the
State Government under Section 9 of the
Act of 1989. Accordingly, the impugned
order is clearly illegal and arbitrary and
deserves to be set aside.

27. In the light of the above, the
impugned order dated 26.11.2012 is illegal
and arbitrary and, consequently, is set
aside. The writ petition is, accordingly,
allowed.
----------
(2023) 9 ILRA 548
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.08.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 1005717 of 2009

Ram Bachani ...Petitioner
Versus
A.D.J. Lucknow ...Respondent

Counsel for the Petitioner:
Brijesh Kumar Saxena, Pritish Kumar, Utkarsh
Srivastava

Counsel for the Respondents:
C.S.C., V.K. Srivastava, Vijay Krishna

Civil Law - Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 -
Sections 4 & 7 - Code of Civil Procedure,
1908 - Order 22 Rule 6 - Tenant was duly
represented
by
petitioner
before
prescribed authority - Petitioner appeared
on 03.04.2002 and signed order-sheet -
Written submissions on behalf of tenant
were filed on 04.08.2002 - Respondent's
death
on
06.08.2002
did
not
abate
proceedings, as judgment was based on
written submissions and delivered on
03.10.2002 - Petitioner contended that
Prescribed Authority lacked jurisdiction as
tenancy predated Act, 1971 - Said issue
9 All. Ram Bachani Vs. A.D.J. Lucknow
549
was not raised before Prescribed Authority
or Appellate Court - Question as to when
tenancy was created or when petitioner or
his predecessor in interest became tenant
is a mixed questions of fact and law, it
cannot be raised for first time in writ
proceedings - Appeal was also dismissed
for lack of locus, as no leave to appeal was
sought or granted - No ground has been
taken to challenge this finding, nor was
any argument advanced - Sale letter
transferred only business of M/s A. James
& Co., not tenancy rights - It specifically
allowed petitioner to obtain fresh lease
from owners - Petitioner neither informed
nor obtained consent from respondentbank before occupying tenanted premises
- Unauthorized possession does not confer
tenancy
rights
or
status
as
legal
representative
of

original
tenant
-
Petitioner had no locus standi to file
appeal - As no arguments made on this
issue, appellate court's findings require no
interference. (Para 23, 25, 26)

Writ Petition dismissed. (E-13)

List of Cases cited:

1.
Gurman
Singh
(dead)
through
legal
representations & ors. Vs Gur Bachan Karu
(Dead), 2007 (13) SCC 414, (Para 18)

2. N.P. Thirugnanam Vs R. Jagan Mohan Rao
(Dr), (1995) 5 SCC 115 at page 116

3. Chetan Charan Das Vs Balbhadra Das, 1899
SCC OnLine All 66, ILR (1899) 21 All 314 at
page 910

4. Suhas H. Pophale Vs Oriental insurance Co
Ltd and its St. officer (2014) 4 SCC 657

(Delivered by Hon'ble Alok Mathur, J.)

1. By means of the present writ
petition, the petitioner has challenged the
order
dated
13.10.2009
passed
by
Additional
District
Judge,
Lucknow
thereby dismissing the appeal against the
order passed by the prescribed authority
under the Public Premises Act, 1971
(herein after referred to as the 'Act of
1971') and also the order dated 03.10.2002
passed by the Prescribed Authority/Estate
Officer, Central Bank of India, Zonal
Officer, Bhopal.

2. The facts necessary for deciding
present controversy shown any unnecessary
details are that the respondent, Central
Bank of India, is the landlord of the
premises
situated
at
73,
Hazratganj,
Lucknow and Jawahar Lal Bhargawa,
predecessor in interest of the petitioner was
the tenant of the north eastern portion of
the ground floor of the said premises. In
1976, the respondent Bank had moved an
application for release of the premises in
the tenancy of Jawahar Lal Bhargawa
before the prescribed authority under the
Uttar Pradesh Urban Building (Regulation
and Letting and Rent and Eviction) Act,
1972 being in urgent need of the premises.
The said application was dismissed by
order dated 01.09.1976.

3. Aggrieved by the said order, an
appeal was preferred by the respondentbank. During the pendency of the appeal,
certain amendments came into effect in the
Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 and an application
was moved on behalf of Jawahar Lal
Bhargava that the remedy for eviction lay
before the prescribed authority under the
said Act and consequently on the said
assertion, the appeal was dismissed. The
suit for eviction was also filed in the Court
of Small Causes Act, Lucknow wherein
SCC Suit No. 583/1980 was registered, the
same was also dismissed on 31.03.1982.

4.

Subsequently,
Jawahar
Lal
Bhargava shifted to Delhi and also
transferred the said premises to the
550 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner without knowledge and consent
of the respondent-bank. It is also the claim
of the respondent that the tenant was in
arrears
of
rent
from
01.04.1997
to
06.07.1999 and had also terminated the
tenancy
by
giving
a
notice
dated
03.06.1999, but the tenant did not vacate
the said premises on the expiry of the
period
provided
for
in
notice
and
accordingly moved an application under the
Public Premises Eviction Act for eviction
of the tenant on the ground that the tenants
have become unauthorized occupants as
defined in the Act.

5. The prescribed authority while
allowing the application filed by the
respondent-bank has considered the fact
that the respondents have terminated the
tenancy
by
giving
a
notice
dated
03.06.1999 and after expiry of 30 days
from the said notice the tenants have
become unauthorised occupants.

6. Contesting the aforesaid claim of
the bank, the tenants on the other hand had
stated that they had already paid the rent in
advance by means of cheque and also that
respondent bank is not in urgent or
bonafide need of the said premises and
prayed to prescribed authority to discharge
the notice issued by the Estate Officer. The
respondent bank on the other hand had
stated that it had not accepted or encashed
the cheque and it has no intention of
receiving the amount towards rent of the
disputed premises and mere receiving of
the cheque/pay orders does not amount to
acceptance of the rent and consequently
prayed that the tenants be declared
unauthorised occupants and evicted from
the tenanted premises.

7. The prescribed authority also did not
accept the contention of the tenants that notice
in the present case had not been given by the
Estate Officer to Mr. Ram Bachani (petitioner)
who is running the business in the name of
M/S A. James & Company. He held that Mr.
Ram Bachani had not claimed the interest in
the premises even after having knowledge of
the proceedings as he has remained present on
03.08.2002 i.e. the date of arguments and also
signed the order-sheet and no objection were
raised by him with regard to issuance of
notices under Section 4 & 7 of the Public
Premises and Eviction Act, 1971.

8. It is in the aforesaid circumstances that
the application for eviction was allowed and
the respondents therein was directed to pay Rs.
2428/65 being the arrears of rent from
01.04.1997 to 06.07.1999 @ Rs. 89/95 per
month and damages @ 1000/- to the applicant
from 07.07.1999 to the date of possession.

9. Against the order of prescribed
authority, the appeal was filed before the
District Judge, Lucknow by the petitioner. It is
for the first time in the appeal it was disclosed
that Sri Jawahar Lal Bhargava by means of
sale letter dated 03.04.1999 had sold the goods
well stock in trade, furniture, fixtures and
fittings and articles associated thereto of the
business running in the name and style of M/S
A. James and Company to the petitioner - Sri
Ram Bachani. The said sale letter also stated
that Sri Ram Bachani would be free to take
lease directly from the owner and till then he
shall pay rent and other dues to the owner. In
the said appeal it was also stated that the
erstwhile tenant Jawahar Lal Bhargava had
died on 06.08.2002 and the order of the
prescribed authority dated 02.10.2002 is illegal
and arbitrary inasmuch as it was rendered after
the death of the defendant therein and the said
order would be a nullity.

10.

The
District
Judge
duly
considered the arguments of the petitioner
9 All. Ram Bachani Vs. A.D.J. Lucknow
551
as well as respondent bank. The first aspect
he considered was as to whether the
petitioner had any right to file the present
appeal inasmuch as he was not the legal
heir of Jawaharlal Bhargava nor a party
before the prescribed authority. In this
regard, he has discussed the contents and
effect of the sale letter dated 03.04.1999
and has held that the said letter being an
unregistered document cannot transfer any
rights in the immovable property and
consequently the petitioner cannot inherit
the rights of the tenant Sri Jawaharlal
Bhargava. The contents of the said letter
was further duly considered, according to
which there is a clear stipulation that the
petitioner would be free to take lease
directly from the owner. In this regard, it
was considered that neither the sale letter
was ever disclosed to the respondent bank
nor any prior permission taken from the
landlord of the said premises before
entering into the said premises and hence
the status of the petitioner would be
nothing more than mere trespasser.

11. It has been submitted that
Jawaharlal Bhargava had died during the
pendency of the proceedings before the
prescribed authority and the decree has
been passed against a dead person would be
a nullity. Repelling the said contention, it
was submitted that firstly the petitioner had
all along contested the matter before the
prescribed authority on behalf of the
Jawahar Lal Bhargava. The case was listed
on 03.08.2002 on which date the petitioner
had appeared and also signed the ordersheet on 30.08.2022 and the case was
adjourned to 14.08.2002 for filing of the
written arguments by the respondent and
the bank had declined to file the written
submissions. The order-sheet of 24.08.2002
records that written arguments have been
filed and the judgment was pronounced on
03.10.2002. It is also on record that written
arguments on behalf of the Jawaharlal
Bhargava was filed on 04.08.2002 two days
prior to his death and the judgment was
delivered on the basis of the written
arguments and no hearing took place
subsequent to 04.08.2002.

12. It is in the aforesaid facts and
circumstances of the case that the appellate
Court held that as per the provisions
contained in Order 22 Rule 6 CPC the
death had occurred after hearing of the case
and before delivering of the judgment and
accordingly the proceedings of the appeal
did not abate and hence rejected the
contention made by the petitioner.

13. Sri B.K. Saxena, learned counsel
for petitioner has vehemently urged that the
order of the prescribed authority was illegal
and arbitrary as the same has been passed
against a dead person and the appellate
Court has not appreciated the fact and law
in its correct perspective and accordingly
the application itself deserves to be
rejected.

14. In support of his submissions, he
has relied upon the judgment of the
Supreme Court in the case of Gurman
Singh
(dead)
through
legal
representations and others Vs. Gur
Bachan Karu (Dead), 2007 (13) SCC 414,
wherein it has been held as under:-

"18) The law on the point is well
settled. On the death of a party to the
appeal, if no application is made by the
party concerned to the appeal or by the
legal representatives of the deceased on
whom the right to sue has devolved for
substitution of their names in place of the
deceased party within 90 days from the
date of death of the party, such appeal
552 INDIAN LAW REPORTS ALLAHABAD SERIES
abates automatically on expiry of 90 days
from the date of death of the party. In other
words, on 91st day, there is no appeal
pending before the Court. It is "dismissed
as abated".

19) Order 22 Rule 3(2) which applies
in
the
case
of
the
death
of
plaintiff/appellant and Order 22 Rule 4(3)
which
applies
in
the
case
of
defendant/respondent
provides
the
consequences for not filing the application
for substitution of legal representatives by
the parties concerned within the time
prescribed. These provisions read as
under:-

Order 22 Rule 3(2) "Where within the
time limited by law no application is made
under sub-rule (1) the suit shall abate so
far as the deceased plaintiff is concerned,
and, on the application of the defendant,
the Court may award to him the costs
which he may have incurred in defending
the suit, to be recovered from the estate of
the deceased plaintiff." Order 22 Rule 4(3)
"Where within the time limited by law no
application is made under sub-rule (1), the
suit shall abate as against the deceased
defendant."

20) In the case at hand, both the
aforementioned
provisions
came
in
operation because the appellant and the
two
respondents
expired
during
the
pendency of second appeal and no
application was filed to bring their legal
representatives on record. As held above,
the legal effect of the non- compliance of
Rules 3(2) and 4(3) of Order 22, therefore,
came into operation resulting in dismissal
of second appeal as abated on the expiry of
90
days
from
10.05.1994,
i.e.,
on
10.08.1994. The High Court, therefore,
ceased to have jurisdiction to decide the
second
appeal
which
stood
already
dismissed on 10.08.1994. Indeed, there was
no pending appeal on and after 10.08.1994.

21) In our considered view, the appeal
could be revived for hearing only when
firstly, the proposed legal representatives of
the
deceased
persons
had
filed
an
application for substitution of their names
and secondly, they had applied for setting
aside of the abatement under Order 22 Rule
9 of the Code and making out therein a
sufficient cause for setting aside of an
abatement
and
lastly,
had
filed
an
application
under
Section
5
of
the
Limitation Act seeking condonation of
delay in filing the substitution application
under Order 22 Rules 3 and 4 of the Code
beyond the statutory period of 90 days. If
these applications had been allowed by the
High Court, the second appeal could have
been revived for final hearing but not
otherwise. Such was not the case here
because no such applications had been
filed.

22) It is a fundamental principle of
law laid down by this Court in Kiran
Singh's case (supra) that a decree passed
by the Court, if it is a nullity, its validity
can be questioned in any proceeding
including in execution proceedings or even
in collateral proceedings whenever such
decree is sought to be enforced by the
decree holder. The reason is that the defect
of this nature affects the very authority of
the Court in passing such decree and goes
to the root of the case. This principle, in
our considered opinion, squarely applies to
this case because it is a settled principle of
law that the decree passed by a Court for
or against a dead person is a "nullity"
(See-N. Jayaram Reddy & Anr. Vs. Revenue
Divisional Officer & Land Acquisition
Officer, Kurnool, (1979) 3 SCC 578, Ashok
Transport Agency vs. Awadhesh Kumar &
Anr., (1998) 5 SCC 567 and Amba Bai &
Ors. Vs. Gopal & Ors., (2001) 5 SCC 570).

23) The appellants are the legal
representatives of defendant Nos. 2 and 4
9 All. Ram Bachani Vs. A.D.J. Lucknow
553
on whom the right to sue has devolved.
They had, therefore, right to question the
legality of the impugned order inter alia on
the ground of it being a nullity. Such
objection, in our opinion, could be raised
in appeal or even in execution proceedings
arising out of such decree. In our view, the
objection, therefore, deserves to be upheld.
It is, accordingly, upheld.

24)
In
the
light
of
foregoing
discussion, we allow the appeal and set
aside the impugned judgment/decree. "

15. Sri V.K.Srivastava learned counsel
for the respondent on the other hand has
opposed the writ petition and supported the
impugned orders. He has contented that at
the time of death of the original respondent
the pleadings had been completed and even
the written arguments had been filed. The
evidence had also been recorded and written
arguments had been submitted. The parties
had agreed that the matter be decided on the
basis of written arguments and no oral
submissions to place after filing of the written
arguments. The death of the original
respondent having occurred after filing of the
written arguments and before the delivery of
the judgment provisions of orders 22 rule 6
would come into operation, and in the present
facts of the case the proceedings did not
abate. He further submitted that the petitioner
did not have any locus to maintain the appeal
against the order of the prescribed authority,
as he had not disclosed about the sale letter
through which he had purchased the business
of the original respondent and also entered
into the tenanted premises. He further
submitted that no leave to appeal was sought
by the petitioner and therefore the same was
not maintainable at his behest, and there is no
infirmity in the impugned orders.

16. It was further submitted on behalf
of the respondent that the petitioner had
participated in the proceedings, which is
evidenced by the fact that he had signed on
the
order
sheet
on
03.08.2002,
as
representing the interest of the original
respondent
(Jawaharlal
Bhargava)
but
never disclosed that in fact he has entered
into the tenanted premises and in case any
decree of eviction is passed, the same
would have to be enforced against him, and
therefore he deliberately concealed relevant
and material facts from the prescribed
authority and has therefore not come with
clean hands before this court. It was
submitted that the appellate court had
rightly held that the petitioner did not have
any locus to maintain the appeal as he was
not a party before the prescribed authority,
and that he does not step into the shoes of
the original tenant that is Jawaharlal
Bhargava, as the said letter was on
unregistered stamps paper, and as such no
rights in immovable property can flow into
the hands vendee.

17. I have heard the learned Counsel
for the parties and perused the record. With
regard to the argument raised by the
petitioner that the proceedings before the
prescribed authority ought to have abated it
is noticed that according to provisions of
Order 22 CPC provisions have been made
for procedure to be adopted in case either
the plaintiff or the defendant dies during
the pendency of the proceeding. According
to the Order 22 Rule 3(2) CPC where one
of the several plaintiffs or a sole plaintiff
dies and no application is made for
substitution during the period of limitation,
the suit shall abate so far as the deceased
plaintiff is concerned, while according to
Rule 4 where in case death of defendants or
the sole defendant where within the time
limited by law no application is made, the
suit shall abate against the deceaseddefendant.
554 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Order 22 Rule 6 of CPC provides
that notwithstanding anything contained in
the aforesaid rules where the cause of
action survives or not there shall be no
abatement by reason of death of either
party between the conclusion of hearing
and pronounce of judgment, and the
judgment may in such case be pronounced
notwithstanding the death and shall have
the same force and effect.

19. A bare reading of the aforesaid
provisions clearly indicates that the purpose
behind substituting the deceased plaintiff or
defendant is that the party to the case
should have full opportunity to contest and
participate in the said proceedings and in
case any of the parties dies during the
proceeding and the right to sue survives
then it is incumbent upon his or her legal
representative to be made parties before
proceeding further in the matter. But order
22 Rule 6 CPC envisages a situation where
all that is required to be done during the
proceedings by the parties is complete and
where even the arguments have concluded
and only the judgment has to be delivered,
then if the plaintiff or defendant dies the
proceedings will not abate and shall have
the same force as the judgment was
pronounced prior to the death of said
deceased, plaintiff or defendant.

20. It is evident that after hearing
takes place, no further steps are required to
be taken by any of the parties as by that
time all the pleadings, evidences and filing
of documents and oral submissions are
complete and the court only has to
pronounce its judgment. A death of a party
during such period would not have the
effect of abatement of the proceedings.

21 . In the case of N.P. Thirugnanam
v. R. Jagan Mohan Rao (Dr), (1995) 5
SCC 115at page 116 the Hon'ble Supreme
Court while dealing with the said issue
observed:-

3.Rule 6 of Order 22 provides that:

"6.No abatement by reason of death
after hearing.- Notwithstanding anything
contained in the foregoing rules, whether
the cause of action survives or not, there
shall be no abatement by reason of the
death
of
either
party
between
the
conclusion
of
the
hearing
and
the
pronouncing of the judgment, but judgment
may
in
such
case
be
pronounced
notwithstanding the death and shall have
the same force and effect as if it had been
pronounced before the death took place."
In the face of the explicit language in Rule
6 of Order 22, there can be no abatement
by reason of the death of any party between
the conclusion of the hearing and the
pronouncement of the judgment. It may be
pronounced, notwithstanding the death,
and shall have the same force and effect as
if the judgment had been pronounced
before the death took place. Therefore, the
contention that the judgment and decree of
the appellate court is a nullity is devoid of
substance.

22. The learned regard law has been
settled by this court and is being uniformly
followed since 1899. In the case of Chetan
Charan Das v. Balbhadra Das, 1899 SCC
OnLine All 66, ILR (1899) 21 All 314at
page 910

[315]BlairandBurkitt,
JJ.:-
The
first of the long list of the grounds of
appeal in this case which was argued
before us was the 11th. It is couched in the
following words:-"Because the decree in
the suit was illegally passed after the death
of the plaintiff without any person being
brought
on
the
record
as
his
9 All. Ram Bachani Vs. A.D.J. Lucknow
555
representative." The facts are, that the trial
was concluded, arguments were heard, and
the judgment was reserved on the 5th of
September 1896. The plaintiff died on the
9th of September 1896. He was then absent
in Orissa, and his death was unknown to
any of the parties or to the Court. Judgment
was delivered, and the decree was passed
on the 15th of September 1896. It was
argued on behalf of the appellants that the
suit abated from the moment of the death of
the plaintiff, and that the Court was
incompetent
to
pass
a
decree,
no
representative of the deceased having been
out on the record. This is a matter which
has long been disposed of in England by
the application of a large general principle
of lawactus curia nemini facit injuriam.
That principle was applied in the leading
case ofCumberv.Wane[1 Smith L.C. 10th
Ed. 325.] . A defendant in error died after
the time when the Court took time to
consider. It was prayed that the judgment
might be enterednunc pro tunc; in other
words, that the judgment should be dated
as of the day when the Court reserved its
decision, and to that prayer the Court
acceded. Such has been the invariable
practice in England; and that practice finds
expression in the rules framed under the
Judicature Act of 1875. It seems to us that
the decision to which we have referred and
the subsequent practice of the Courts are
consistent with justice and good sense.
Nothing was left to be done by the parties
from the moment the judgment was
reserved. Any delay which took place was
the delay of the Court, and we are not
surprised to find that the English practice
has been followed by the Courts in this
country,
notably
in
the
case
ofRamacharyav.Anantacharya[21 B. 314.] .
No case to the contrary has been cited
before us. A similar view has been taken by
the[316]Privy Council in the case of
Surendro Keshub Royv.Doorgasoondery
Dossee[19 C. 513.] . We think that decision
amounts to an authority which this Court is
bound to follow. We follow it accordingly.
Our ruling in this case must be taken to be
strictly limited to its facts, namely, that
everything to be done by the parties had
been done, and nothing remained except
the delivery of judgment, which had been
reserved by the Court. We, therefore,
overrule this ground of appeal.

Appeal dismissed."

23. Applying the dictum of the
aforesaid Judgment to the facts of the
instant case, it is noticed that the interest of
Jawahar Lal Bhargava who was the tenant
was duly represented at all times before the
prescribed authority by the petitioner. Even
from the undisputed facts, the case was
listed on 03.04.2002 on which date the
petitioner duly appeared and signed the
order-sheet before the prescribed authority.
The case was adjourned for filing of the
written arguments on behalf of the tenant
which was filed on 04.08.2002 and
accordingly the hearing stood completed on
the filing of the written submissions and the
judgment was delivered on 03.10.2002. The
death of the respondent on 06/08/2002
would not have the effect of abatement of
the proceedings in as much as the written
submissions have been filed, and the
judgement was delivered on the basis of the
written submissions.

24. From the aforesaid, it is clear that
provision of Order 22 Rule 6 applied with
full force to the facts of the present case
and accordingly the proceedings did not
abate on the death of Jawaharlal Bhargavathe original tenant. The judgment of the
Supreme Court in the case of Gurman
Singh
(dead)
through
legal
representations and others Vs. Gur
556 INDIAN LAW REPORTS ALLAHABAD SERIES
Bachan Karu (Dead) does not deal with
the facts akin to the facts of the present
case and therefore is distinguishable.

25. It was also contented on behalf of
the petitioner that the proceedings before
the prescribed authority were without
jurisdiction inasmuch as the tenancy was
created prior to coming into force the
provisions of Public Premises and Eviction
Act, 1971. In support of his contention is
he relied upon the judgment of the Supreme
Court in the case of Suhas H. Pophale vs
Oriental insurance Co Ltd and its estate
officer (2014) 4 SCC 657. A perusal of the
impugned judgement discloses that the said
issue was never raised either before the
prescribed authority or either in the appeal
before the District Judge. The question as
to when the tenancy was created or when
the petitioner or his predecessor in interest
became a tenant, is not merely a question of
law but a mixed question of fact and law.
The petitioner having not raised this
question before either the Prescribed
authority
or
the
appellate
Court
is
precluded for raising the same for the first
time in the present writ proceedings. It is
further noticed that the appeal preferred by
the petitioner has also been dismissed on
the ground that he did not have any right to
file the appeal against the order of the
prescribed authority before the District
Judge. No leave to appeal was sought nor
granted by the District Judge. No ground
has been taken in the present writ petition
to assailed the said findings, nor any
arguments has been advanced in this regard
by the counsel for the petitioner, and
accordingly no interference is required with
the said findings.

26. From the perusal of the sale letter
it is clear that no tenancy rights were
transferred to the petitioner and merely the
business in the name and style of M/S A.
James and Company was transferred
along with the goodwill stock in trade,
furniture etc. There is a clear stipulation
in the said sale letter that the petitioner
would be free to obtain lease from the
owners. It is not disputed that petitioner
never informed or took consent from the
respondent-bank prior to entering into the
tenanted
premises
and
merely
by
unauthorisedly occupying the tenanted
premises did not ipso facto become the
tenant
and
certainly
not
the
legal
representatives of the original tenant and
accordingly did not have any locus standi
to challenge the order of the prescribed
authority in appeal before the District
Judge. No arguments were advanced by
the Counsel the petitioner in this regard,
and
therefore
the
findings
by
the
appellate
court
do
not
merit
any
interference.

27. In light of the above, this Court
does not find any ground to interfere with
the concurrent findings of fact recorded by
both the courts below. The writ petition is
devoid of merits and is accordingly
dismissed.
----------
(2023) 9 ILRA 556
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED:LUCKNOW 11.09.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482. No. 7795 of 2018

Mohd. Ayub Rizvi & Ors. ...Applicants
Versus
Smt. Salma Khan & Anr. ...Opposite Parties

Counsel for the Applicants:
Jageshwari Prasad Mathur