PANKAJ BHATT Vs. PRESCRIBED AUTHORITY/CHIEF JUDICIAL MAGISTRATE
HIGH COURT OF UTTARAKHAND
Prescribed Authority/Chief Judicial Magistrate
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B.S. Verma, J. -
(1.)THIS writ petition has been preferred for issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 31 -7 -2006 passed by the Respondent No. 1 in Rent Control Case No. 8 of 1999. The Petitioner has further prayed for mandamus of this Court directing the Respondent No. 1 to allow the application of the Petitioner under Order 1, Rule 10 of the Code of Civil Procedure and to give him sufficient opportunity for contesting the Case No. 8 of 1999 Smt. Pramila Abraham v. Vijai Bhatt.
(2.)RELEVANT facts giving rise to the present petition are that the Petitioner is one of the tenants of the disputed premises. The Respondent No. 2 being the landlord of the suit property filed an application under Section 21(1)(a) of the UP. Act No. 13of 1972 (for short the Act) for release of the accommodation on the ground of bona fide need. The application of the Respondent -applicant was registered as RA. Case No. 8 of 1999, Julien Abraham v. Sri Vijai Bhatt before the Prescribed Authority. The opposite party filed his written statement before the Prescribed Authority and in paragraph No. 19, it was mentioned to the effect "the application is bad for non joinder of the other heirs of Late Sri L.M. Bhatt the original tenant." It is alleged by the Petitioner that when the Petitioner came to know of the fact that he is a necessary party and he has not been impleaded in the proceeding as a Defendant, the Petitioner moved application under Order 1, Rule 10(2) of the Code of Civil Procedure read with Section 3(a) and 3(g) of the U.P. Act No. 13 of 1972, copy of which is annexed as Annexure No. 3 to the writ petition. In this application, it was alleged that the original landlord had rented the suit premises to the father of the applicant Sri L.M. Bhatt and, after the death of his father, the applicant is also a legal tenant along with the legal heirs of the deceased tenant. The Petitioner has also alleged that the landlord concealing the real facts moved the release application only against the O.P. Vijai Bhatt. The application of the Petitioner was taken up for hearing on 6.7.2006. The application was taken on record. The opposite party sought adjournment of the case, which was allowed. The Prescribed Authority has fixed 14.7.2006 for disposal of the application as well as for arguments in the case and opportunity to file rejoinder was given to the landlord. Aggrieved by that order, the Petitioner came up before this Court in Writ Petition No. 891 (MS) of 2006. The grievance of the Petitioner was that the learned Prescribed Authority was not justified to fix the case for argument without disposing of the application for impleadment. This Court has however directed the Prescribed Authority to dispose of the application of the Petitioner by a reasoned order vide order dated 13 -07 -2006. On 21 -7 -2006, the Petitioner moved application before the Prescribed Authority (paper No. 87 -C) for adjournment on the ground that he could not produce the copy of the order passed by the High Court. The application was allowed and the case was fixed for 25 -7 -2006. Again on that date, application for adjournment was moved by the Petitioner, which was allowed on payment of costs of Rs. 200/ - fixing 27 -7 -2006 in the case. The proposed applicant -Petitioner and his counsel did not appear in the case, therefore, the Prescribed Authority passed order to proceed ex -parte against the Petitioner. However, the Petitioner filed the copy of the order dated 13 -7 -2006 passed by the High Court on 28 -7 -2006 and prayed for recall of the order dated 27 -7 -2006 vide application 89 -C. The Prescribed Authority after hearing the landlord and Petitioner recalled the order dated 27 -7 -2006 and after considering the material on record found that the Petitioner had not mentioned anywhere in his application that he had been ordinarily living with his father at the time of his death. There is also no mention that the Petitioner had ever paid the rent of the suit premises after the death of his father. The tenant Vijai Bhatt in his written statement paper No. 28 -C had mentioned that he had sent money order to the landlord, but the same was refused therefore he used to make deposit under Section 30 of the Act. The Prescribed Authority has relied upon the law laid down by the Apex Court in the Case of Harish Tandon v. Additional District Magistrate Allahabad and Ors., 1995 SC RC 123 and ultimately dismissed the application of the Petitioner for impleadment vide order dated 31 -7 -2006, impugned in this writ petition.
I have heard learned Counsel for both the parties and perused the material on record including the counter affidavit and the rejoinder affidavit field by the parties.
(3.)THE main grounds on which the impugned order has been assailed are that the application of the Respondent No. 2 for release of the accommodation is not maintainable for non -joinder of necessary party and that under the definition given in Section 3(a) and 3(g) of the said Act, the Petitioner had a right to contest the proceedings and he ought to have been impleaded as an opposite party to the case.
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