R B. Mehrotra, J - (1.) - In this petition under Article 226 of the Constitution of India, the question which requires consideration is, as to whether on an application for restitution of possession on the ground of setting aside an exparte decree in proceedings under the U. P. Act No. XIII of 1972 (hereinafter referred to as the Act), the persons claiming to be heirs of the deceased tenant within the meaning of secion 3 (1) (a) of the Act are entitled to be put back in possession, without final adjudication of the contention of the respondent-landlord that the persons claiming to be the heirs of the deceased tenant, are not tenant, within the meaning of section 3 (I) (a) of the Act.
(2.) NECESSARY facts for the decision of the writ petition are as under :- One Sunit Kumar Das was the tenant of the disputed premises situate at 6-B, Stanley Road, Allahabad. The contesting respondents, namely, Ravindra Sinha and Shivendra Sinha are admittedly the landlord of the premises in dispute The respondent-landlord filed an application under section 21 (I) (a) of the Act seeking eviction of the tenant Sri Sunit Kumar Das on the ground of bona fide requirement of the premises in dispute. On the basis of an exparte order, obtaing release of the house in their favour the respondent- landlord tried to take possession of the disputed premises on 7 th July. 1988. There is some dispute regarding the factum of taking possession by the respondent-landlord on the basis of exparte order, but for the purposes of the decision of the present writ petition, the said dispute is not very material. Tenant Sunit Kumar Das filed an application on 12-7-1988 for setting aside the exparte order dated 14-1-1988, and also moved an application for staying, execution of the exparte order, dated 14-1-1988, and delivery of possession to the landlord. The Prescribed Authority stayed the execution of the exparte order on 12-7-1988, and fixed 12-8-1988 for the disposal of the restoration application. The petitioners have contended in their writ petition that during the continuance of the stay order passed on 12-7-1988 by the Prescribed Authority, the respondent-landlord forcibly placed their locks on the disputed premises on 21-7-1988. An application was moved on behalf of Sunit Kumar Das the tenant and the petitioner no. 1 Smt. Meena Das, the wile of the tenant, on 21-7-1988 to the District Magistrate Allahabad that the landlord with the connivance of the police officials have forcibly dispossessed the tenant and his wife, as such they should be placed back in possession of the disputed premises. On the said application of the tenant and his wife, the District Magistrate deputed Sri 1. P. Gautam, Additional City Magistrate, Allahabad to go on the spot and to get possession restored to the tenant Smt. Sunit Kumar Das. Sri J. P. Gautam went on the spot, made an enquiry and reported that till 21-7-1988, Das couple were residing in the disputed premises. On 21-7-1988, Ravindra Sinha, the respondent landlord, with the help and connivance of the police, had forcibly put his lock in the premises in dispute. The enquiry has further revealed that the luggage of Sri Das is still lying in the house in dispute It was also reported that four armed constables were placed on guard at the disputed premises to continue the forcible possession of Ravindra Sinha. The Additional City Magistrate also reported that despite his orders to put Sri Das and his wife back in possession, the Sub-Inspector of police expressed his inability to comply with the order and told the Addl. City Magistrate that he is going to obtain orders from the higher police authorities in this connection and only then he will restore back the possession to the tenant.
(3.) THE District Magistrate, on the basis of the aforesaid report of the Addl. City Magistrate, by his letter dated 22-7-5988 informed the Prescribed Authority that the respondent-landlord has forcibly turned out Das's family from the disputed house and placed their lock in the premises and the goods of the tenant are locked in the house in dispute. THE Addl. City Magistrate was deputed to make an enquiry on the complaint and he found the complaint to be correct. THE conduct of the police inclnding the Senior Supdt. of Police is suspicious and fishy. Thereafter on 24-7-1988, an Advocate Commissioner was deputed to make an enquiry regarding possession. The Advocate Commissioner went on the spot and unlocked the lock put in the premises taking the keys from the respondent-landlord but due to objections raised by the petitioner no. I the inspection could not be done. He put in his own lock and sealed the premises and submitted a report to the Prescribed Authority stating therein that the earlier lock put by him was changed and in view of the objections by the parties, it was not possible to make any spot inspection. On 10-8-1988 the respondent-landlord filed a Civil Misc. Writ Petition No. 15407 of 1988 in this Court. This Court dismissed the writ petition of the landlord, vide its order, dated 28-10-1988 observing that since the question of possession is disputed between the parties, it is not possible to decide the same. This Court, however, directed the prescribed Authority to expeditiously decide the restoration application moved by the tenant within two months from the date of the order of the High Court. The Prescribed Authority, vide its order, dated 19-3-1989, allowed the restoration application of the petitioners and set aside the exparte order passed in favour of the respondent landlord on 14-1-1988. This order of setting aside the exparte order passed in fovour of the respondent landlord has become final between the parties and has not been challenged before any court. Shri Sunit Kumar Das the tenant died during the pendency of the application for setting aside the exparte order. An application was moved on behalf of the petitioners, who are wife and son of the deceased tenant for being substituted in place of the tenant for prosecuting the application for setting aside the exparte decree. The respondent landlord objected to the said substitution application on the ground that since the present petitioners, who are the wife and son of the deceased-tenant, were not normally residing with the tenant in the premises in dispute but were residing at Panipat, tney are not entitled to be substituted as heirs of the deceased- tenant Sunit Kumar Das. This objection was rejected by the Prescribed Authority. The Prescribed Authority while disposing of the aforesaid objection took a view that the dispute regarding question of tenancy right will be decided at the time of the decision of the main case itself on merits and allowed the substitution application with the aforesaid observation. Subsequent thereto, the respondent landlord moved an application on 8-8-1988 offering a part of the house to the petitioners and seeking release of the rest of the premises on the ground that the need of the petitioners can be satisfied if they retained only a part of the premises in dispute. The portion of the premises in dispute whicn was to be retained by the petitioners was detailed in the said application. The present petitioners, however, did not agree to the said suggestion of the respondent-landlord;