K.C.Agrawal, J. - (1.) This writ petition is directed against a judgment of the Rent Control and Eviction Officer, dated 31st March, 1978, rejecting an application filed by the petitioner under section 34 read with Rule 22 of the U P. Act No. 13 of 1972.
(2.) The relevant facts are these. The disputed house belonged to one Amiruddin. On 8-8-67 the house was purchased by respondents Smt. Bhagwati Devi and Smt. Sushila Devi. Before that Govind Ram, the husband of Smt. Champa Devi and father of Angoori Devi, was the tenant. In 1967 the aforesaid lardlord moved an application under section 3 of U P. Act 3 of 1947 for permission to bring a suit for ejectment against Smt. Champo Devi and Smt. Angoori Devi. The application was allowed by the Rent Control and Eviction Officer on 18th December, 1969. Against the said order, the two ladies, Champo Devi and Smt. Argoori Devi preferred a revision before the Commissioner. The revision was allowed and the case was remanded to the Rent Control and Eviction Officer for fresh decision. After the remand, the Rent Control and Eviction Officer by the judgment dated 17th March, 1970, allowed the application and granted the permission. Smt. Champo Devi challenged the order of the Rent Control and Eviction Officer in revision which was dismissed on 14th September, 1970. Thereafter, Smt. Bhagwati Devi and Sushila Devi filed suit No. 105 of 1971 against Champo Devi and Angoori Devi for giving effect to the permission under section 2 of U P. Act 3 of 1947. The suit was decreed. At the time of the execution of the decree, however,, an objection was filed by Smt. Champo Devi and Angoori Devi that the decree was a nullity. The objection prevailed and, thereafter, Smt. Bhagwati Devi and Sushila Devi filed suit No. 233 of 1973 before the Judge Small Causes. The suit was contested by Smt. Champo Devi and Angoori Devi. The main contention was that there is no relationship of landlord and tenant between them and the plaintiffs and, therefore, the suit was liable to he dismissed. On 14th February, 1974 the Judge Small Causes decided the issue of relationship of landlord and tenant in favour of Smt. Champo Devi and Smt. Angoori Devi. Consequent upon the decision of the said issue against the plaintiffs Bhagwati Devi and Sushila Devi, the suit was dismissed on 14th February, 1974. Against the said order, Smt. Sushila Devi and Smt. Bhagwati Devi preferred the revision which was subsequently numbered as 41 of 1974 before the District Judge, Aligarh. On 4-10-19-4, the District Judge held that the suit, since was not maintainable on the basis of permission granted under section 3 of U.P. Act No. 3 of 1947. The same was liable to be dismissed. The learned District Judge did not go into the merits of the issues decided by the Judge Small Causes against the plaintiffs Smt. Bhagwati Devi and Smt. Sushila Devi. The view of the learned District Judge was that the remedy of the plaintiff lay in filing an application under section 43(2)(rr) of UP. Act No. 13 of 1972. Thereupon, Smt. Bhagwati Devi and Sushila Devi, the landlords, filed an application under section 43(2)(rr) of the Act for ejectment of Smt. Champo Devi and Smt. Angoori Devi. The application was allowed on 7th November, 1974 by the Prescribed Authority and in pursuance of the said order, the landlords took possession of the disputed premises on February 7, 1975. After possession had been taken. Smt. Cbampo Devi moved an application under section 34 read with Rule 22(b) of U.P. Act No. 13 of 1972 for restitution of possession on the ground that the proceedings of taking over of possession, started by the landlords, were fictitious and they had no notice of the same, and as such she was entitled to get back possession of the disputed premises. It may be noted here that the application under section 34 was filed only by Smt. Champo Devi and not by Smt. Angoori Devi. This application was contested by the landlords. By the impugned order, the Prescribed Authority rejected the application holding that the same had no merit. Being aggrieved, Smt. Angoori Devi, since Smt. Champo Devi is now dead, preferred the present writ.
(3.) Counsel for the petitioner urged that section 23 applies for executing an order made under section 21 or one under section 22 of U.P. Act No. 13 of 1972 As in the present case such an order has not been passed, the application is not maintainable. It is true that section 23 can only be applied to orders passed under sections 21 and 22 of U P. Act No. 13 of 1972 but that by itself is not decisive of the matter. The crux of the matter was as to whether the landlords were entitled to take possession of the disputed property under section 43(2)(rr). For the purpose of getting possession under that provisions, the landlords were required to establish that the permission had been obtained by them under section 3 of the U P. Act No. 3 of 1947 and that the same had become final. In the instant case, the permission had been obtained by the landlords and that the same had be come final. That being so, section 43(2)(rr) clearly applied. It is settled that mention of a wrong provisions in an application is inconsequential, if the rights of the parties have been investigated in accordance with law applicable to the proceedings under which the proceedings ought to have been taken. The application was filed before the Authority hiving jurisdiction of an application under section 43(2)(rr). That being so, the arguments of the petitioner's learned counsel cannot be accepted.;