# Sharif v. F.A. Khan 2008 (1) A.R.C. 628

- **Citation:** (2008) 3 ILRA 890
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-11
- **Case number:** Civil Misc. Writ Petition No. 40620 of 2008
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sharif-v-f-a-khan-2008-1-a-r-c-628-41257
- **Pages:** 3

## Headnote

Constitution of India-Article 226-Rent
appeal-appellate Court granting stay of
eviction-subject to payment of enhanced
rent at the rate of Rs.3,000/-per monthagainst that writ petition dismissed-in
the meantime as per verdict of Apex
Court-tenant
filed
modificationapplication and got stayed the enhanced
rate of rent-landlord's recall application
bringing
true
position
about
concealment of facts by the tenantappellate Court restored earlier order by
imposing Rs.500/- cost-held-too much
nominal but on request of expediting the
hearing of appeal-lower Court is directed
to decide appeal very expeditiously-any
adjournment should not be subject to
payment of Rs.500/-petition dismissed.

Held: Para 5

Learned counsel for the tenant petitioner
states that hearing of appeal may be
expedited. Accordingly, it is directed that
appeal
must
be
decided
very
expeditiously.
Absolutely
no
unnecessary adjournment shall be granted
to any of the parties. If the court below
is inclined to grant any adjournment in
any form to any of the parties, then it
shall be on very heavy cost, which shall
not
be
less
than
Rs.500/-
per
adjournment.
Case law discussed:
2008 (1) A.R.C. 628, 2005 (1) SCC 705,
2008(2)ARC 579.

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2008
890
proper. A party is bound by the direction
of the Court to assist it for the purpose of
ascertaining the truth. Had the master
complied with the direction and the
servant called upon to prove but failed, it
could have been scenario comparable
with referred judgements. In this case, the
substantial question is not the burden of
proof but shifting of onus to dispel the
cloud when the Court called upon to
satisfy itself to come to an appropriate
finding. If one party tries to avoid the
Court it is entitled to draw an adverse
inference.

13. Thus, in totality we do not find
any cogent reason to interfere with the
judgement and order impugned in this
appeal. Hence, the appeal is dismissed
even at the stage of admission, however,
without imposing any cost.

14. The amount deposited by the
appellants
as
lying
with
the
Commissioner concerned will be released
in favour of the claimant as early as
possible. Appeal dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2008

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No. 40620 of 2008

Dr. R.S. Khare

...Petitioner
Versus
Om Narain Gupta
 ...Respondents

Counsel for the Petitioner:
Sri. Rajesh Dwivedi.

Counsel for the Respondents:
Sri. Nikhil Kumar.

Constitution of India-Article 226-Rent
appeal-appellate Court granting stay of
eviction-subject to payment of enhanced
rent at the rate of Rs.3,000/-per monthagainst that writ petition dismissed-in
the meantime as per verdict of Apex
Court-tenant
filed
modificationapplication and got stayed the enhanced
rate of rent-landlord's recall application
bringing
true
position
about
concealment of facts by the tenantappellate Court restored earlier order by
imposing Rs.500/- cost-held-too much
nominal but on request of expediting the
hearing of appeal-lower Court is directed
to decide appeal very expeditiously-any
adjournment should not be subject to
payment of Rs.500/-petition dismissed.

Held: Para 5

Learned counsel for the tenant petitioner
states that hearing of appeal may be
expedited. Accordingly, it is directed that
appeal
must
be
decided
very
expeditiously.
Absolutely
no
unnecessary adjournment shall be granted
to any of the parties. If the court below
is inclined to grant any adjournment in
any form to any of the parties, then it
shall be on very heavy cost, which shall
not
be
less
than
Rs.500/-
per
adjournment.
Case law discussed:
2008 (1) A.R.C. 628, 2005 (1) SCC 705,
2008(2)ARC 579.

(Delivered by Hon'ble S. U. Khan, J.)

1. Tenant-petitioner is behaving in a
most un:reasonable manner. In an appeal
(Rent appeal no.30 of 2007) Additional
District Judge Court No.13, Kanpur
Nagar granted conditional stay order
staying eviction on the condition that
tenant would pay Rs.3,000/- per month to
the landlord during pendency of appeal.
Said order was passed on 25.9.2007.
Against the said order writ petition no.
59828 of 2007 was filed in this Court
3 All] Dr. R.S. Khare V. Om Narain Gupra
891
which was dismissed on 4.12.2007.
Thereafter
tenant-petitioner
filed
an
application before the appellate court for
setting aside the order/reduction of rent.
The argument was that on the basis of
Supreme Court judgment reported in M.
Sharif vs. F.A. Khan 2008 (1) A.R.C. 628
rent could not be enhanced as condition of
stay. In the said case rent had been
enhanced by the High Court from
RS.100/- to Rs.4,000/-. It appears that the
High Court had enhanced the rent through
interim order in landlord's writ petition.
The extent of enhancement was also
found by the Supreme Court to be quite
arbitrary and unreasonable.

2. As the judgment of the Supreme
Court was not in between the parties
hence appellate court/Additional District
Judge could not modify its order dated
25.9.2007, which had been affirmed by
the High Court. On the basis of Supreme
Court judgement the appellate court
recalled its order dated 25.9.2007 through
order dated 4.4.2007. However till then
the tenant petitioner did not inform the
court that writ petition filed against order
dated 25.9.2007 had been dismissed.
Moreover Supreme Court only said that;
rent cannot be enhanced arbitrarily.
However, reasonable enhancement as
condition of stay is always warranted vide
Supreme Court authority reported in
Atma
Ram
Properties
vs.
Federal
Motors, 2005 (1) SCC 705, The Supreme
Court in a later authority reported in N.A.
Khan vs. M.R.U.Khan 2008(2) ARC 579
(decided on 5.5.2008) set aside an interim
order of the High Court passed in
landlord's writ petition through which rent
had been: enhanced. However, in para-8 it
was observed by the Supreme Court as
follows:
"We
should
however
note
the
distinction between cases where a writ
petition is filed by the tenant challenging
the order of eviction and seeking stay of
execution thereof, and cases where a writ
petition
is
filed
by
the
landlord
challenging the rejection of a petition for
eviction. What we have stated above is
with reference to writ petitions filed by
landlords. In writ petitions filed by
tenants, while granting stay of execution
of the order of eviction pending disposal
of writ petition, the High Court has the
discretion
to
impose
reasonable
conditions to safeguard the interests of
the landlord. But even in such cases the
High Court cannot obviously impose
conditions which are ex facie arbitrary
and oppressive thereby making the order
of stay illusory. When a tenant files a writ
petition challenging the order of eviction,
the High Court may reject the writ
petition if it finds no merit in the case of
the tenant; or in some cases, the High
Court may admit the writ petition but
refuse to grant stay of execution, in which
event, the tenant may be evicted, but can
claim restoration of possession if he
ultimately succeeds in the writ petition; or
in some cases, the High Court finding the
case fit for admission, may grant stay of
eviction, with or without conditions, so
that status quo is maintained till the
matter is decided. Where the High Court
chooses to impose any conditions in
regard to stay, such conditions should not
be unreasonable or oppressive or in
terrorem. Adopting some arbitrary figure
as prevailing market rent without any
basis and directing the tenant to pay
absurdly high rent would be considered
oppressive and unreasonable even when
such direction is issued as a condition for
stay of eviction. High Court should desist
from doing so "
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
892

3. In any case as the order dated
25.9.2007 had been affirmed by this court
in writ petition hence recall was not
maintainable. When landlord brought this
fact to the notice of the lower appellate
court, the lower appellate court very
rightly through order dated 7.5.2008 set
aside its order dated 4.4.2008 and restored
the order dated 25.9.2007 and further
imposed a cost of Rs.500/- upon the
tenant for concealing the fact that order
dated 25.9.2007 had been approved by the
High Court.

4. The only fault which I find in the
impugned order is that the lower appellate
court was quite lenient in imposing the
cost. Heavier cost ought to have been
imposed. However, this is tenant's writ
petition hence I am not inclined to
enhance the cost. This writ petition is
utterly devoid of merit hence dismissed.

5. Learned counsel for the tenant
petitioner states that hearing of appeal
may be expedited. Accordingly, it is
directed that appeal must be decided very
expeditiously. Absolutely no un-necessary
adjournment shall be granted to any of the
parties. If the court below is inclined to
grant any adjournment in any form to any
of the parties, then it shall be on very
heavy cost, which shall not be less than
Rs.500/- per adjournment. Petition
dismissed.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2008

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 3995 Of 2000

U.P.S.R.T.C.

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri. Samir Sharma

Counsel for the Respondents:
Sri. B.P. Yadav

Constitution
of
India-Labour
Court
award-reinstatement
with
full
back
wages except denial of one year salarychallenged on the ground of habitual
offender-workman carrying passengers
without tickets-held-workman may be in
fault for not stopping the bus within
2Km. from the boarding station-but the
driver also equally responsible-it could
be due to paucity of time could not issue
ticket to five passengers out of 50-for
negligence 1⁄4 of wages as awarded by
the Labour Court would be sufficientwith such modification the terms of
award stood confirmed.

Held: Para 16 & 17

In my opinion, it appears that there has
been some technical violation of the rule
by the driver and the conductor in not
stopping the bus within two kilometers
from the bus station so as to enable the
conductor
to
issue
tickets
to
all
passengers of the bus but it would not
reflect any bad intention on the part of
conductor for not being able to issue
tickets to all 50 passengers in a short
time.

However, as regards back wages are
concerned, since the labour court has
found
that
there
has
been
some
technical violation of rule and has also
substituted a lesser punishment, no
interference in writ jurisdiction is called
for but certainly the workman not be
entitled to full back wages in the
circumstances
as
he
could
have
requested the driver to stop the bus to
enable him to issue tickets. Therefore, in
my opinion, the workman has been