# Shri Shree Chand Jain v. Rent Tribunal13th Adj Agra & Ors

- **Citation:** (2024) 5 ILRA 853
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-22
- **Case number:** Matter Under Article 227 No. 6277 of 2024
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-shree-chand-jain-v-rent-tribunal13th-adj-agra-ors-52008
- **Pages:** 6

## Headnote

Civil Law - U.P. Regulation of Urban
Premises Tenancy Act, 2021 - Sections 10,
33(2),
35(2),
35
-
Petitioner
filed
application u/s 10 of Act, 2021 - In that
case, interim rent was fixed at the rate of
Rs. 750/- per square feet - Respondent
filed recall application, also filed Writ
Petition in High Court, disposed of ,
direction to decide the recall application
within
time
bound
period
-
Recall
application was rejected - Scope of
provisions
-
Held,
in
all eventuality
applications/appeals
to
be
decided
maximum within a period of 60 days from
date of filing - If not decided within time,
reasons has to be recorded in writing - In
the matter of Asian Resurfacing, Apex
Court has issued direction to Trial Court to
send photocopy/scanned copy of record
after
retaining
the
same
so
that
proceedings are not held up - Filing of
appeal against review/recall order without
pre deposit of 50% amount, thereafter
summoning of original record by Rent
Tribunal
withholding
the
execution
proceedings is misuse of process of law -
Directions accordingly. (Para 3, 8, 9, 13)

Petition disposed of. (E-13)

List of Cases cited:

Asian Resurfacing of Road Agency P. Ltd. & ors.
Vs Central Bureau of Investigation (Criminal
Appeal Nos. 1375-1376 of 2013)

## Text

5 All. Shri Shreee Chand Jain Vs. Rent Tribunal 13th Adj Agra & Ors.
853
Hotel, which would make any dispute
arising out of the said agreement fall within
the definition of a commercial dispute.
Disputes arising out of business operation
and management agreements of immovable
properties, such as hotels, resorts, office
buildings, shopping centres, and other
commercial real estate, fall within the
definition of a commercial dispute as
outlined in Section 2(c)(vii) of the CC Act.

15. However, the Commercial
Court, Varanasi held that the Hotel was
never "actually used" for the purposes of
trade or commercial and dismissed the suit
filed by the Petitioners. Relevant portion
from the impugned order dated January 17,
2023 passed by the Commercial Court,
Varanasi is extracted herein:

"mijksDr foospuk ls Li"V gksrk gS fd okfnuh }kjk
izLrqr okn esa mYysf[kr ifjlj la[;k mijksDr gksVy
dk lapkyu okf.kfT;d fo|qr dh vkiwfrZ u gksus ds
dkj.k O;kikj o okf.kfT;d :i ls okLrfod iz;ksx dHkh
ugha fd;k x;k rFkk ekuuh; mPpre U;k;ky; }kjk
Ambalal Sarabhai Enterprises Limited ds vUrxZr
lqLFkkfir fof/k O;oLFkk ds vuqlkj okfnuh }kjk izLrqr
okn tks izdh.kZ flfoy okn la[;k 375@2022 ds :i
esa ntZ gS dh lquokbZ dk {ks=kf/kdkj okf.kfT;d U;k;ky;
okjk.klh dks izkIr ugha gS rFkk okfnuh dk mijksDr
izdh.kZ flfoy okn rFkk mlds lkFk layXu okn i=
vLohdkj fd;s tkus ;ksX; gSA
vkns'k
izdh.kZ flfoy okn la[;k 375@2022 eerk diwj o
vU; cuke fouksn dqekj jk; okf.kfT;d U;k;ky; dks
lquokbZ dk {ks=kf/kdkj u gksus ds dkj.k vLohdkj fd;k
tkrk gSA dk;kZy; dks funsZf'kr fd;k tkrk gS fd og
okfnuh dh lEiw.kZ i=koyh fu;ekuqlkj okfnuh vFkok
mlds vf/kd`r O;fDr dks okil izkIr djk;sA"

16. A perusal of the factual matrix
of the instant case would show that the
Commercial Court, Varanasi was not
justified in dismissing the suit filed by the
Petitioners which would warrant the
exercise of this Court's powers under Article
227 of the Constitution of India. The Hotel
was actually being used for trade and
commerce, and the agreement between the
parties was for the purpose of business
management and operations exclusively. It
is evident from the nature of the agreement
that the primary purpose was to facilitate
and manage commercial activities related to
the Hotel. Therefore, the argument that the
Hotel was not "actually used" for trade or
commerce lacks merit, as the very purpose
of the agreement was to engage in
commercial
activities
related
to
the
operation of the Hotel. The Commercial
Court's narrow interpretation overlooks the
broader
commercial
context
of
the
agreement and fails to recognize the
commercial nature of the dispute.

17. Accordingly, the impugned
order dated January 17, 2023 is quashed and
set aside with a direction upon the
Commercial Court, Varanasi to hear the suit
filed
by
the
Petitioner
on
merits,
expeditiously and preferably, within a
period of 6 months from the date of receipt
of a certified copy of this order.

18. With the above directions, the
instant application is allowed. There shall be
no order as to the costs.
----------
(2024) 5 ILRA 853
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.05.2024

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matter Under Article 227 No. 6277 of 2024

Shri Shree Chand Jain ...Petitioner
Versus
Rent Tribunal13th Adj Agra & Ors.
 ...Respondents
854 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sudeep Harkauli

Counsel for the Respondents:
--

Civil Law - U.P. Regulation of Urban
Premises Tenancy Act, 2021 - Sections 10,
33(2),
35(2),
35
-
Petitioner
filed
application u/s 10 of Act, 2021 - In that
case, interim rent was fixed at the rate of
Rs. 750/- per square feet - Respondent
filed recall application, also filed Writ
Petition in High Court, disposed of ,
direction to decide the recall application
within
time
bound
period
-
Recall
application was rejected - Scope of
provisions
-
Held,
in
all eventuality
applications/appeals
to
be
decided
maximum within a period of 60 days from
date of filing - If not decided within time,
reasons has to be recorded in writing - In
the matter of Asian Resurfacing, Apex
Court has issued direction to Trial Court to
send photocopy/scanned copy of record
after
retaining
the
same
so
that
proceedings are not held up - Filing of
appeal against review/recall order without
pre deposit of 50% amount, thereafter
summoning of original record by Rent
Tribunal
withholding
the
execution
proceedings is misuse of process of law -
Directions accordingly. (Para 3, 8, 9, 13)

Petition disposed of. (E-13)

List of Cases cited:

Asian Resurfacing of Road Agency P. Ltd. & ors.
Vs Central Bureau of Investigation (Criminal
Appeal Nos. 1375-1376 of 2013)

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

1. Heard Sri Sudeep Harkauli,
learned counsel for the petitioner and Sri I.P.
Srivastava,
learned
Additional
Chief
Standing Counsel for the State.

2. Present petition has been filed
with the following prayers:-
"(i) To direct the Rent Tribunal to
decide the Rent Control Appeal No.56 of
2023 within a time bound period of 60 days
as provided in the Act.
(II) To direct the Rent Tribunal to
return the records of the case under Appeal
No. 56 of 2023 and under all other similar
appeals to the Rent Authority so that case
can be adjudicated there, and to direct the
Rent Tribunal not to unnecessary summons
records of the cases pending before the Rent
Authority or summon only copies of the
record from Rent Authority if at all required
giving specific reasons as to why the copy of
the
record
is
required/necessary
for
deciding the appeal.
(iii) To direct the Rent Tribunal to
comply with the provisions of mandatory
deposit of 50% of the amount as required
under the Act."

3. Sri Sudeep Harkauli, learned
counsel for the petitioner submitted that
after repealing of U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972, U.P. Regulation of Urban
Premises Tenancy Act, 2021 (hereinafter
referred to as Act, 2021) has been enacted
and also U.P. Regulation of Urban Premises
Tenancy Rules, 2021 (hereinafter referred to
as Rules, 2021) framed thereunder. He next
submitted that petitioner has filed an
application under Section 10 of Act, 2021,
which was numbered as Case No. 5808 of
2022. In the said case, order dated 16.9.2022
has been passed fixing the interim rent at the
rate of Rs. 750/- per square feet. Thereafter,
respondent has filed an application to recall
the order dated 16.9.2022. He has also
approached this Court by filing Writ-A No.
12100 of 2023, which was disposed of vide
order dated 26.7.2023 with direction to
decide the recall application within time
bound period. In pursuance of the said order,
recall application was heard and rejected
5 All. Shri Shreee Chand Jain Vs. Rent Tribunal 13th Adj Agra & Ors.
855
vide order dated 17.11.2023. Recall/review
application has been filed against the
fixation of interim rent and as such its
rejection confirms the fixation of interim
rent.

4. He next submitted that there is
provision of appeal under Section 35 of Act,
2021 against the orders passed by the Rent
Authority. Section 35 of Act, 2021 provides
pre deposits of 50% of the payable amount
and in the present case, 50% of the payable
amount would be 50% of the interim rent
fixed by the order dated 16.9.2022. Against
the review/recall order, rent appeal no.56 of
2023 has been filed without deposit of
aforesaid amount, which is against the
provisions of Act, 2021. The said appeal was
entertained, original record of Appellate
Authority has been summoned by the Rent
Tribunal. He firmly submitted that no appeal
has been filed against the order of fixation of
interim rent dated 16.9.2022 rather than it
has been filed against the recall/review order
dated 17.11.2023. He lastly submitted that
order of fixation of interim rent dated
16.9.2022 has never been challenged.

5. Learned counsel for the
petitioner further submitted that after
summoning the original record, petitioner is
not in a position to initiate execution
application to execute the order of interim
rent dated 16.9.2022. He next submitted that
as provided in Section 33 (2) & 35(2) of Act,
2021, direction may be issued to Rent
Tribunal to decide the appeal at the earliest
clarifying that pendency of such appeal may
not be a ground for staying of any execution
proceedings, if filed. He further submitted
that direction may also be issued to rent
tribunal not to summon the original record
and in case original record is required, only
photocopy/scanned copy duly certified by
the Rent Authority may be sent. In support
of his contention, he has placed reliance
upon the judgment of Apex Court in the case
of Asian Resurfacing of Road Agency P.
Ltd. and Ors. Vs. Central Bureau of
Investigation passed in Criminal Appeal
Nos. 1375-1376 of 2013 decided on
25.4.2018. He lastly submitted that while
challenging
any
order
of
interim
maintenance or final eviction, direction may
also be issued to Rent Tribunal to ensure the
compliance of statutory provision of pre
deposit of 50% of the payable amount as
provided in Section 35 of 2021, Act.

6. Sri I.P. Srivastava, learned
Additional Chief Standing Counsel for the
State has not opposed and disputed the
submission so made by the learned counsel
for the petitioner. He also submitted that in
the larger interest of justice, suitable
direction
may
be
issued
to
Rent
Tribunal/Rent Authority to ensure the
compliance of provision Act & Rules, 2021
in its spirit.

7. I have considered the rival
submissions advanced by the learned
counsel for the petitioner as well as Sri I.P.
Srivastava,
learned
Additional
Chief
Standing Counsel for the State and perused
the record as well as judgment relied upon.
The first issue is before this Court about the
time in which appeal is to be decided,
therefore, Section 33(2) & 35(2) of Act,
2021 are relevant, which are being quoted
hereinbelow:-

"Section 33(2) The Rent Authority
or Rent Tribunal, as the case may be, shall
endeavour
to
dispose
the
case
as
expeditiously as possible, not exceeding a
period of more than sixty days from the date
of receipt of the application or appeal.
Provided that where any such
application or appeal, as the case may be
856 INDIAN LAW REPORTS ALLAHABAD SERIES
could not be disposed of withing the said
period of sixty days, the Rent Authority or
Rent Tribunal, as the case may be, shall
record its reason in writing for not disposing
of the application or appeal within that
period.
Section 35(2) Upon filing an appeal
under sub-section (1), the Rent Tribunal
shall serve notice, along with a copy of
memorandum of appeal to the respondent
and fix a hearing not later than thirty days
from the date of service of notice of appeal
on the respondent and the appeal shall be
disposed of within a period of sixty days
from such date of service."

8. From perusal of the aforesaid
sections, it is apparently clear that in all
eventuality applications/appeals have to be
decided maximum within a period of 60
days from the date of filing. In case it is not
decided within the same time, reasons has to
be recorded in writing.

9. Second issue is about the
summoning of original record from the Rent
Authority. Similar issue was before the Apex
Court in the matter of Asian Resurfacing
(Supra) in which Apex Court has issued
direction to trial Court to send the
photocopy/scanned copy of the record after
retaining the same. The said judgment is
quoted hereinbelow:-

"1. Heard learned counsel for the
parties.
2. In view of judgment of three
Judge Bench dated 28th March, 2018 and
after considering the material on record. we
do not find any ground to interfere with the
order framing charge.
3. Accordingly, the trial Court is
directed to proceed with the matter pending
before it. All contentions of the parties are
left open which may be gone into by the trial
Court. Parties are directed to appear before
the trial Court on 14th May, 2018.
4. To give effect to directions in
judgement of this Court dated 28th March,
2018, noted above, we direct that wherever
original record has been summoned by an
appellate/revisional
Court,
photocopy/scanned copy of the same may be
kept for its reference and original returned
to the trial Courts forthwith.
5. We also direct that if in future the
trial Court record is summoned, the trial
Courts may send photocopy/scanned copy of
the record and retain the original so that the
proceedings are not held up. In cases where
specifically original record is required by
holding that photocopy will not serve the
purpose, the appellate/revisional court may
call for the record only for perusal and the
same
be
returned
while
keeping
a
photocopy/scanned copy of the same.
6. A copy of this order be sent to all
the High Courts."

10. From perusal of the aforesaid
order, Apex Court has issued specific
direction to trial Court to send the
photocopy/scanned copy of the original
record retaining the same so that the
proceedings are not held up. Ratio of law
laid down by the Apex Court in the matter of
Asian Resurfacing (Supra) shall also be
applicable in the present case. This Court
cannot take different view, therefore, it is
always on the part of Rent Authority to send
photocopy/scanned copy after retaining the
original records to Rent Tribunal, if
summoned. A letter of certification may also
be annexed alongwith photocopy/scanned
copy of the record.

11. The third issued was before this
Court for direction to deposit of 50%
amount in terms of Section 35 of Act, 2021.
Same is quoted hereinbelow:-
5 All. Shri Shreee Chand Jain Vs. Rent Tribunal 13th Adj Agra & Ors.
857
"35. Appeal to Rent Tribunal (1) Any
person aggrieved by an order passed by the
Rent Authority may prefer an appeal along
with a certified copy of such order to the
Rent Tribunal within the local limits of
which the premises is situated, within a
period of thirty days from the date of that
order:
Provided that no appeal shall lie
unless the appellant pre-deposits fifty
percent of the entire payable amount under
the impugned order of the Rent Authority.
(2) Upon filing an appeal under
sub-section (1), the Rent Tribunal shall
serve notice, along with a copy of
memorandum of appeal to the respondent
and fix a hearing not later than thirty days
from the date of service of notice of appeal
on the respondent and the appeal shall be
disposed of within a period of sixty days
from such date of service.
(3) Where the Rent Tribunal
considers it necessary in the interest of
arriving at a just and proper decision, it may
allow filing of documents at any stage of the
proceedings in appeal:
Provided that no such document
shall be allowed more than once during the
hearing.
(4) The Rent Tribunal may, in its
discretion, pass such interlocutory order
during the pendency of the appeal, as it may
deem fit.
(5) While deciding the appeal, the
Rent Tribunal may, after recording reasons
therefor, confirm, set aside or modify the
order passed by a Rent Authority."

12. From perusal of the same it is
apparently, clear that there is no exception to
skip away from pre deposit of 50% the entire
payable amount under the impugned order
of the rent authority at the time of filing of
appeal. In case any order is under challenged
having direction of payment of any amount,
no appeal can be entertained against the said
order without pre deposit of 50% amount as
mandated in Section 35 of Act, 2021.

13. Filing of appeal against the
review/recall order without pre deposit of
50% amount and thereafter summoning of
original record by the Rent Tribunal
withholding the execution proceedings is
nothing, but misuse of process of law.

14. Therefore, under such facts and
circumstances as well as law laid down by
the Apex Court, the petition is disposed of
with the following directions:-

(i) Rent Tribunal/Rent Authority is
directed to decide the appeals/applications
as the case may be, strictly within the time
limit provided in Section 33(2) & 35(2) of
Act, 2021 i.e. 60 days. In case same is not
decided within the prescribed time, they
shall record reasons in writing for the same.
(a)
In
light
of
aforesaid
observations, present Rent Appeal No. 56 of
2023 shall also be decided in terms of
Section 33(2) & 35(2) of Act, 2021.
(ii) In case of summoning record by
the Rent Tribunal, Rent Authority shall
send the photocopy/scanned copy of the
same alongwith letter of certification
retaining the original record for further
proceedings in accordance with provisions
of Act & Rules, 2021. Rent Tribunal is also
directed to ensure the compliance of above
noted direction and in case original record is
send by the Rent Authority, Rent
Tribunal,
after
retaining
the
photocopy/scanned copy of the same, shall
send back the original record to Rent
Authority maximum within a period of two
weeks from the date of receiving the same.
(iii) Rent Tribunal is further
directed not to entertain any appeal in
contrary to provision of Section 35 of Act,
858 INDIAN LAW REPORTS ALLAHABAD SERIES
2021 without pre deposit of 50% of the
amount payable under the order of Rent
Authority. In case original order is not
under
challenged,
only
order
of
review/recall as discussed herein above is
under challenge without deposit of 50%
amount, original order shall not be treated
under challenge and any interim order
granted in appeal against review/recall order
shall not be treated stay of original order. It
would also be open for the applicant to
initiate execution proceedings, if advised.

15. Registrar General is directed to
circulate the copy of this order to all Rent
Authority and Rent Tribunal of State of
Uttar Pradesh for necessary compliance at
the earliest.
----------
(2024) 5 ILRA 858
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.05.2024

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Matter Under Article 227 No. 6584 of 2023

Smt. Hema & Anr. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sujan Singh

Counsel for the Respondents:
G.A., Niharika Dubey, Vishakha Dubey

Civil Law - Code of Criminal Procedure,
1973 - Sections 125, 127 & 362 - Scope
of Section 362 Cr.P.C in maintenance -
Maintenance petition was filed u/s 125
Cr.P.C - Allowed ex-parte, an amount of
Rs. 10,000/- pm had been awarded in
favour of petitioner no. 1, and an amount
of Rs. 2,000/- in favour of petitioner no.
2 - Respondent no. 2 filed recall
application, allowed - During subsequent
proceedings, maintenance petition was
dismissed for non-prosecution - On the
same
date,
the
petitioners
moved
restoration application - Dismissed -
Impugned order - Held, proceedings for
maintenance u/s 125 Cr.P.C. are of a
summary nature, object of the same is to
provide immediate relief to applicant
- The embargo contained in Section 362
held to be relaxed in proceedings u/s
125, and the court having not become
functus officio after passing of final
order, the recall application filed seeking
restoration of case, could not be rejected
by assigning a reason that Court was not
empowered to entertain the same -
Hence, impugned order was set aside and
matter was remitted for passing fresh
order. (Para 5, 6, 37, 44, 46)

Petition partly allowed. (E-13)

List of Cases cited:

1. Kusum Devi Vs Ram Chandra Maurya, 2004 1
Crimes(HC) 153

2. Kehari Singh Vs St. of U.P., 2005 0 CrLJ 2330

3. Jagmohan Arora Vs Saroj Arora, 2011
LawSuit(Del) 2381

4. Suhird Kamra Vs Neeta & anr., 1988 (14) DRJ
282

5. Sanjeev Kapoor Vs Chandana Kapoor & ors.,
(2020) 13 SCC 172

6. Sankatha Singh Vs St. of U.P., AIR 1962 SC
1208

7. Sooraj Devi Vs Pyare Lal, (1981) 1 SCC 500

8. Simrikhia Vs Dolley Mukherjee, (1990) 2 SCC
437

9. Hari Singh Vs Harbhajan Singh Bajwa, (2001)
1 SCC 169

10. St. Vs K.VS Rajendran, (2008) 8 SCC 673