N.D. Ojha, J. - (1.) RESPONDENT No. 3 Smt. Mohinder Kaur is the landlord of an accommodation of which the Petitioner is the tenant. An application was made by Respondent No. 3 on 27 -8 -1980 under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) for release of the aforesaid accommodation in her favour on the ground that she needed it bonafide for her own use. This application was allowed ex parte on 12 -3 -1981. The Petitioner made an application for setting aside the ex parte order aforesaid under Rule 32 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction Rules), 1972 (hereinafter referred to as the Rules) on 7 -4 -1981. This application was dismissed by the Prescribed Authority on 25 -4 -1981. The Petitioner preferred an appeal against that order which was, however, got dismissed as not pressed on 7 -11 -1981 presumably because appeal against the order dated 25 -4 -1981 was not maintainable. Thereafter the Petitioner preferred an appeal on 13 -5 -1981 against the ex parte order dated 12 -3 -1981 before the District Judge. The said appeal was transferred to the XVth Additional District Judge, Kanpur who dismissed it on 12 -1 -1983. The present writ petition was filed with a prayer to quash the order dated 12 -3 -1981 whereby the application of Respondent No. 3 for release of the accommodation was allowed ex parte and the order dated 12 -1 -1983 whereby the Petitioners appeal against that order was dismissed by Respondent No. 1.
(2.) THE writ petition came up for hearing on 11 -4 -1983. The hearing of the writ petition could not be concluded on that date and it was ordered to be put on 12 -4 -1983. An application was made by the Petitioner on 12 -4 -1983 for amendment of the writ petition. The amendment which was sought was that the order dated 25 -4 -1981 passed by the Prescribed Authority dismissing the Petitioner's application dated 7 -4 -1981 may also be quashed. Counsel for Respondent No. 3 prayed for and was granted a week's time to file a counter -affidavit. The writ petition was ordered to be listed for hearing as part heard on 26 -4 -1983. A rejoinder affidavit was permitted to be filed on or before that date. Before dealing with the submissions made by counsel for the Petitioner it may be mentioned that Counsel for the Respondent No. 3 has strenuously opposed the application for amendment on the ground that it was highly belated and does not deserve to be allowed. According to him once the Petitioner himself got his appeal against the order dated 25 -4 -1981 dismissed as not pressed on the ground that the appeal was not maintainable he should have filed a writ petition challenging the order dated 25 -4 -1981 within a reasonable time, at any rate, from 7 -11 -1981 when the appeal was got dismissed as not pressed. Counsel for Respondent No. 3 has further emphasised on the circumstance that in the application which has been made for amendment of the writ petition virtually no cause has been shown as to why the order dated 25 -4 -1981 was not challenged within a reasonable time.
(3.) HAVING heard Counsel for the parties on this point I am of opinion that the application for amendment deserves to be allowed. It is true that in the application for amendment no specific cause has been assigned as to why the order dated 25 -4 -1981 was not challenged by the Petitioner shortly after the dismissal of his appeal against that order on 7 -11 -1981, but from a perusal of the memorandum of appeal which was filed against the ex parte order dated 12 -3 -1981, a copy whereof has been attached as Annexure 4 to the writ petition, it appears that the question that the ex parte order had been passed without service of notice upon him had been raised by the Petitioner in the said memorandum of appeal. Not only that a perusal of even the impugned order passed by Respondent No. 1 indicates that this point was also pressed in the appeal but was repelled. At best it could be said that on the plea raised by the Petitioner in his appeal against the ex parte order dated 12 -3 -1981 in regard to the non -service of notice upon him being repelled by Respondent No. 1 on 12 -1 -1983 the Petitioner should have while challenging the order dated 12 -1 -1983 simultaneously challenged the order dated 25 -4 -1981 also. In my opinion, however, that does not stand in the way of the Petitioner in as much as it is the settled principle of this Court that a writ petition is not considered to be barred by laches if it is filed within 90 days from the date of the impugned order. Calculating this period from 12 -1 -1983 on which date the appeal was dismissed the present writ petition could have been filed by 12 -4 -1983. Since the application for amendment was filed on 12 -4 -1983 it cannot be said to be barred by laches.;