- (1.) S. U. Khan, J. Original petitioner Smt. Vidyawati (since deceased and represented by legal representatives) filed release application under Section 21 of U. P. Act No. 13 of 1972 against Jagdish Chand respondent No. 2 and Girish Chand respondent No. 3 both real brothers. The case set up in the release application was that Jagdish Chand was the tenant in the shop in dispute who had completely shifted his business to another city and had sublet/allowed to be occupied exclusively the shop in dispute by his real brother Girish Chand. In the release application, it was stated that the shop in dispute was bona fidely required for establishing Ghanshyam Saxena married son of the landlady (after the death of his mother Smt. Vidyawati, the original petitioner, he is now petitioner No. 1 ). In the release application Jagdish Chand did not appear. Girish Chand contested the release application by asserting that it was he who was the tenant in the shop in dispute and Jagdish Chand had no concern with the shop in dispute. The release application was registered as Case No. 5 of 1981. The Prescribed Authority Farrukhabad allowed the release application on 10-8-1983 by holding that Jagdish Chand was the tenant and not Girish Chand. Both Jagdish Chand as well as Girish Chand filed appeals before the District Judge. The appeal of Girish Chand was registered as Rent Control Appeal No. 106 of 1983 and that of Jagdish Chand as Rent Control Appeal No. 117 of 1983. Jagdish Chand in his memorandum of appeal clearly stated in para 4 thereof that "because the respondent No. 2 (i. e. Girish Chand) was the tenant of the disputed shop and he was in possession of the disputed shop in his own right. " The main ground taken by Jagdish Chand was ground No. 2 which is quoted below - " (2) Because the Lower Court erred in proceeding ex-parte against the appellant. "
(2.) DISTRICT Judge Farrukhabad decided both the appeals by common judgment dated 30-8-1986. DISTRICT Judge dismissed the appeal of Girish Chand holding that he was not the tenant. However, DISTRICT Judge allowed the appeal of Jagdish Chand only on the ground that he was not served before Prescribed Authority. The appellate Court remanded the matter to the Prescribed Authority for "the decision afresh for the claim of Jagdish Chand and landlady in this case". Girish Chand filed a writ petition in this Court against dismissal of his appeal being writ petition No. 19728 of 1986. The said writ petition was dismissed as abated on 4-5-1995 as landlady respondent in the said writ petition had died and no substitution application within time had been filed. Girish Chand filed a recall application, which was also rejected on 16-10-1995. The said orders have been annexed as Annexures RA 1 and RA 2. In this writ petition Sri V. K. Singh, learned Counsel filed Vakalatnama on behalf of Girish Chand respondent No. 3 on 9-9-1997. The learned Counsel also filed his Vakalatnama for respondent Jagdish Chand on 25-11-1997. However, counter- affidavit in the year 2000 has been filed only on behalf of Girish Chand. In para 5 of the counter-affidavit it has been stated "in any case the answering respondent have no concern with the service on the respondent No. 2" (i. e. Jagdish Chand ). In my opinion when Jagdish Chand himself took the case in appeal that he was not the tenant then there was no need for the lower Appellate Court to remand the matter just for the sake of formality when a party asserts that the order passed against him even though ex parte but is perfectly correct then there is no need to set aside the judgment and allow the party to participate in the proceedings. It is true that in restoration application or appeal against ex parte judgment and decree it is not necessary to disclose the defence, which affected party, might have taken in case he had been provided opportunity of hearing. However, if the party expressly assets that he has no defence and the judgment is correct on merit then there is absolutely no need to set aside the judgment only and only on the ground that the judgment was ex parte. Even in this revision inspite of engaging Counsel Jagdish Chand has not filed any counter-affidavit.
(3.) ACCORDINGLY, writ petition is allowed. Judgment and order passed by District Judge dated 30-8-1986, allowing the appeal No. 117 of 1983 filed by Jagdish Chand is set-aside and judgment and order passed by Prescribed Authority, Farrukhabad dated 10-8-1983 passed in case No. 5 of 1981 is restored. Petition allowed. .;