- (1.) Heard Mr. R.K. Sharma, learned Counsel for the petitioners. Brief facts of the present case are that on 3.2.2005, the petitioners filed a release application under section 21(1)(a) of U.P. Act No. 13 of 1972, to which the written statement was filed by the opposite party No. 2 on 19.10.2005. Thereafter, by the order dated 1.5.2007, release application was allowed. Subsequently, an application under section 23 of U.P. Act No. 13 of 1972 was moved for warrant of possession on 12.7.2007. On 30.10.2007, the opposite party No. 2 appeared through Counsel and was allowed time to file objections. Thereafter, on 17.3.2008, the opposite party No. 2 filed an application for setting aside the order dated 1.5.2007, to which the petitioners filed their objections. Subsequently, vide order dated 29.9.2008, the said application was rejected. Being aggrieved, he filed Rent Appeal under section 22 of U.P. Act 13 of 1972. In the appeal, the petitioners filed written objections against maintainability of appeal. By the impugned order dated 2.1.2009, the Appellate Court/District Judge, while discarding the statutory provisions of U.P. Act No. 13 of 1972 and the judgments cited on behalf of the petitioners, admitted the appeal vide order dated 2.1.2009.
(2.) Learned Counsel for the petitioners attacked the impugned order on the grounds that no appeal lies under section 22 of U.P. Act No. 13 of 1972. Further, he submits that section 22 of the aforesaid Act empowers the Appellate Authority to entertain the appeal against the final orders and not against the application for recall of the orders. Next, he stated that in such circumstances, the writ petition lies under Article 226 or 227 of the Constitution of India.
(3.) In support of his submissions, learned Counsel for the petitioners has relied upon the cases of State of Bihar v. Kalika Kauer @ Kalika Singh, 2003 5 SCC 448, Rajbir Singh Dalai v. Chaudhry Devi Lal University,2008 9 SCC 684, Balak Ram v. District Gonda, 1981 ARC 287,Dhooran @ Ghooran v. District Judge,1982 1 ARC 797, Ram Gopal v. District Judge, Gonda,1979 ARC 354, Harbans Singh v. District Judge, Ballia, 1977 ARC 5, Raja Ram v. Prescribed Authority, Mainpur, 2002 48 AllLR 818 and Radhey Shyam v. Special Chief Judicial Magistrate, Kanpur, 2002 48 AllLR 288.;