Anjani Kumar, J. - (1.) The petitioner, tenant aggrieved by the order passed by the appellate authority dated 1.5.2004 under the provisions of U. P. Act No. 13 of 1972, whereby the appellate authority modified the order of the Rent Control and Eviction Officer under Section 21 (8) of U. P. Act No. 13 of 1972.
(2.) The facts leading to filing of the writ petition are that the petitioner is a tenant of the accommodation in dispute which is under his tenancy and the contesting respondent-landlady, Omvati filed an application in December, 1981, purported to be an application under Section 21 (8) of the U. P. Act No. 13 of 1972, (hereinafter referred to as the 'Act'), for enhancement of the rent. This application was allowed by the Rent Control and Eviction Officer and the rent was enhanced from Rs. 340 to 600 with effect from the date of application, i.e., December, 1981. Aggrieved thereby the landlady as well as petitioner-tenant, both, preferred appeals before the appellate authority. The appeal of the landlady as well as of the petitioner-tenant was heard together and on appeal filed by the landlady rent was enhanced to Rs. 1,050.85. The appellate authority has decided the matter on 19.11.1987 and thereafter the landlady filed another application dated 12.4.1994, as contemplated under Section 21 (8) of the Act for further enhancement of the rent. During the pendency of this application dated 12.4.1984, the landlady died and since as per assertions made by learned counsel for the petitioner no substitution was permissible under law for bringing the legal heirs on record, the application dated 12.4.1994, filed by Smt. Omvati, landlady stands abated on 31.3.1995, which was registered as Case No. 64 of 1994. The heirs of the landlady who are not disputed to be heirs, filed an application dated 17.11.1995, before the District Magistrate with the assertions that they are the heirs of the landlady and they have stepped into shoes of the landlady. This application filed by the respondent Nos. 3 to 5 (heirs of the landlady) has been objected by the petitioner-tenant firstly, on the ground that second application dated 17.11.1995 is not permissible under law and if permissible, it is only after expiry of five years from the date of last enhancement and secondly since as a consequence of the enhancement by the District Magistrate, the rent was enhanced beyond Rs. 2,000, the provisions of Act do not apply, therefore application under Section 21 (8) of the Act was liable to be dismissed. The District Magistrate by the order dated 24.1.2001, enhanced the rent to Rs. 7,809.50 per month. Aggrieved thereby the petitioner-tenant preferred an appeal being Misc. Appeal No. 102 of 2001 and agitated the same points. By the impugned order the appellate authority dismissed the appeal filed by the petitioner-tenant and appeal filed by the landlady for enhancement of the rent was allowed and the rent was enhanced by the appellate authority to Rs. 11,846.70.
(3.) Before this Court, it has been contended by learned counsel for the petitioner apart from above two arguments that since the appeal of the landlady was dismissed as abated, therefore, it was not permissible for the heirs of the landlady to file fresh appeal and the principle of res judicata will apply, thus according to learned counsel their appeal was liable to be dismissed.;