- (1.) S. P. Mehrotra, J. The present writ petition has been filed by the petitioners under Articles 226/227 of the Constitution of India, inter alia, praying for quashing the order dated 23-1-2002 (Annexure-8 to the writ petition) passed by the learned Judge Small Cause Court, Bijnor and the judgment and order dated 15-9-2003 (Annexure- 10 to the writ petition) passed by the learned Additional District Judge (Court No. 4), Bijnor.
(2.) THE dispute relates to a shop situated in main Bazar, Kasba and Pargana-Nahtor, Tahsil-Dhampur, District-Bijnor, the details whereof are given in the plaint of SCC Suit No. 90 of 1999 referred to hereinafter. THE said shop has hereinafter been referred to as 'the dispute shop'. From a perusal of the averments made in the writ petition and the Annexures thereto, it appears that the respondent Nos. 1 and 2 herein, as plaintiffs, filed a suit for eviction, arrears of rent, damages etc. against Fahim Uddin, predecessor-in-interest of the petitioners herein. It was, inter alia, alleged in the said suit that Musammat Imamunnisha established Waqf-Alal- Aulad by Waqf Deed dated 13-7-1988, and that she appointed her husband Mohd. Shibgat Ullah as the first Mutawalli of the Waqf; and that the said Waqf-Alal-Aulad Imamunnisha (the respondent No. 1 herein and the plaintiff No. 1 in the said suit) purchased Khasra Nos. 111, 112, 113 in the name of the said Waqf-Alal-Aulad Imamunnisha had and that five shops including the disputed shop were built in the said property from the income of the Waqf and that thus, the disputed shop was the property of the said Waqf. Alal Aulad Imamunnisha; and that the said Waqf was registered with the Sunni Waqf Board at Sl. No. 98. It was, inter alia, further alleged in the said suit that the disputed shop was the property of the said Waqf-Alal- Aulad Imamunnisha, and the U. P. Act No. XIII of 1972 (in short "the Act") was not applicable to the disputed shop; and that the said Fahim Uddin (defendant in the said suit), predecessor-in- interest of the petitioners herein, was the tenant of the disputed shop at a monthly rent of Rs. 200/- besides Water Tax and House Tax; and that the tenancy of the said Fahim Uddin (defendant in the said suit), predecessor-in-interest of the petitioners herein, was month to month; and that the rent of the disputed shop was earlier realized by the said Shibgat Ullah as Mutawalli; and that thereafter, Mohammad Ahmad alias Abdul Qayyum (respondent No. 2 herein) became Mutawalli, and as Mutawalli, he was realizing rent of the disputed shop from the said Fahim Uddin (defendant in the said suit), predecessor-in-interest of the petitioners herein; and that the said Fahim Uddin (defendant in the said suit), predecessor-in-interest of the petitioners herein did not pay rent with effect from 1-2-1999 despite demand; and that the respondents herein (plaintiffs in the said suit) gave a notice dated 8-9- 1999 to the said Fahim Uddin (defendant in the said suit), predecessor-in-interest of the petitioners herein, which was received by the said Fahim Uddin (defendant in the said suit), predecessor-in-interest of the petitioners herein, on 13-9-1999; and that the said Fahim Uddin (defendant in the said suit), predecessor-in-interest of the petitioners herein, gave an incorrect reply to the said notice; and that despite the service of the said notice, the said Fahim Uddin (defendant in the said suit), predecessor-in- interest of the petitioners herein neither vacated the disputed shop nor did he pay the rent.
(3.) THE said suit was registered as SCC Suit No. 90 of 1999. Copy of the plaint of the said SCC Suit No. 90 of 1999 has been filed as Annexure-2 to the writ petition. It further appears that the said Fahim Uddin (defendant in the said suit), predecessor-in-interest of the petitioners herein, filed written statement in the said SCC Suit No. 90 of 1999, a copy whereof has been filed as part of Annexure-3 to the writ petition.;