- (1.) Heard counsel for the petitioner and the counsel for the caveator and perused the record.
(2.) This petition is directed against the orders dated 19.1.2009 and 16.12.2009 by which an application under Section 19 of U.P. Act No. XIII of 1972 (hereinafter referred to as the Act) has been dismissed by the courts below.
(3.) One Chandra Kishore was the tenant of an almirah in the wall of a building belonging to the respondent landlord which he utilised as a shop. He died issueless in August, 1992, whereupon the petitioner, Kanhaiya Lal claiming to be his adopted son occupied it. The respondent landlord moved an application under Sections 12 and 16 of the Act for declaration of vacancy and release before the rent controller which was registered as Case No. 2 of 1995. After considering the evidence on record the rent controller having found that Kanhaiya Lal was not the adopted son of Chandra Kishore and was in an unauthorised occupation of the disputed premises, declared it vacant vide order dated 20.5.1996. The petitioner thereafter challenged the said order through Writ Petition No. 18918 of 1996 and obtained a stay order. After hearing the parties, the said writ petition was dismissed vide order dated 19.9.2002 on the ground that in Civil Suit No. 217 of 1993 filed by the petitioner it was held that he was not the adopted son of the original tenant Chandra Kishore and thus the order of vacancy was affirmed. The petitioner alongwith his real brother Sunil and brother of the original tenant, Ram Kumar filed an application for review of the vacancy order which was again rejected vide order dated 6.3.2003 which was subjected to challenge in a revision which was also dismissed oh 5.5.2003. Again Kanhaiya Lal, the petitioner alongwith Sunil and Sumer preferred Writ Petition No. 21491 of 2003 and a learned single Judge after contest dismissed the writ petition on 16.5.2003 with the finding that Kanhaiya Lal the petitioner cannot urge that he is the heir of deceased tenant Chandra Kishore whereafter his collateral Ram Kumar started a fresh innings and made yet another application for review on 22.11.2003 for setting aside the order declaring vacancy but the same was dismissed on 16.1.2004, the resultant revision was also dismissed on 3.2.2007. Thereafter, they also challenged the said orders through Writ Petition No. 20973 of 2007 and this Court dismissed it vide order dated 27.4.2007 by the following order: Heard learned Counsel for the petitioner and Sri A. C. Nigam appearing for the contesting respondent. One Chandra Kishore was a tenant in the shop in dispute and when he died issueless an application for release was filed by the landlord respondent alleging that one Kanhaiya Lal, nephew of Chandra Kishore and uncle of the petitioner was in unauthorised occupation. The said Kanhaiya Lal claimed that he was the adopted son of Chandra Kishore and for such declaration he had filed Civil Suit No. 217 of 1993 where it was held that he was not the adopted son of Chandra Kishore. The Rent Control and Eviction Officer found that Kanhaiya Lal was in unauthorised occupation and as such declared vacancy on 20.5.1996. Kanhaiya Lal challenged the vacancy order through Writ Petition No. 18918 of 1996 but the writ petition was dismissed on 19th September, 2002. Thereafter, Kanhaiya Lal and Sunil, the real brother of the petitioner preferred a review application to review the declaration of vacancy but it was rejected vide order dated 6.3.2003 and a revision preferred against the said order was also rejected vide order dated 5.5.2003. The said Kanhaiya Lal and Sunil, the real brother of the petitioner and his another collateral Sumer challenged the said two orders through Writ Petition No. 21491 of 2003 which again came to be rejected by a reasoned order dated 16.5.2003. Thereafter, the petitioner started a fresh innings and made an application for review on 22.11.2003 for setting aside declaration of vacancy. The application was rejected vide order dated 16.1.2004 and the resultant revision was also dismissed on 3.2.2007. The petitioner now challenges the said two orders dated 16.1.2004, 3.2.2007 and also orders dated 20.5.1996 and 6.3.2003. From the facts as noted above, it is evident that firstly the real uncle of the petitioner was unsuccessful in thwarting the execution of the vacancy order, thereafter, the real brother of the petitioner joined him and now the petitioner. On these facts the Court is not inclined to exercise its extraordinary power under Article 226 of the Constitution. Rejected. Prior to it the release application was allowed on 6.3.2003 but due to pendency of various litigation by the petitioner or his brothers and collaterals the release order could not be executed and only after dismissal of the aforesaid writ petition on 27.4.2007 the respondent landlord was given possession on 5.7.2008. However, immediately after his eviction, he again preferred an application under Section 19 of the Act in September, 2008 claiming that the respondent landlord had misused the release order inasmuch as instead of utilising the almirah, he has closed it down and therefore, the release order should be recalled and he be put into possession. The said application has been rejected by both the courts below.;