Sibghat Ullah Khan, J, - (1.) HEARD Sri K. Shailendra, learned Counsel for the petitioner and Sri S.F.A. Naqvi, learned Counsel for the tenant respondent. Landlord petitioner since deceased and survived by legal representatives filed eviction suit against tenant respondent No. 2 Hakim Ziaul Islam which was registered as suit (S.C.C. Suit) No. 1613 of 1972, J.S.C.C./Additional Civil Judge, Moradabad through judgment and decree dated 15.5.1976 decreed the suit for eviction and recovery of arrears of rent and damages for use and occupation at the rate of Rs. 35/ - per month. Against the said judgment and decree tenant -respondent filed Civil Revision No. 160 of 1976 which was dismissed by IVth Additional District judge, Moradabad on 20.8.1982. Thereafter, review petition was filed before IVth Additional District Judge, Moradabad on 20.9.1985 During pendency of the review petition the judgment and decree passed by J.S.C.C. as well as judgment and order of the Revisional Court dismissing the revision dated 20.8.1982 was also challenged in this High Court through Writ Petition No. 15136 of 1982. Writ petition was dismissed in limine on 23.12.1982 without even issuing notice to the landlord petitioner who was respondent in the said writ petition. According to the learned Counsel for the landlord petitioner until decision of the review petition he was not aware about the filing and dismissal of the writ petition. The judgment passed in earlier Writ Petition (No. 15136 of 1982) dated 23.12.1982 is Annexure C.A. -1 to the counter -affidavit in Civil Misc. (Recall) Application No. 78271 of 2000. Said writ petition was dismissed by detailed, reasoned order. It is most unfortunate that in review proceeding tenant -respondent No. 2 did not bring this fact on record that writ petition against the order sought to be reviewed had been dismissed. Review petition was allowed through order dated 4.2.1988 by IInd Additional District Judge, Moradabad, which is under challenge in this writ petition. Through the said order earlier order of Revisional Court (dated 20.8.1982) dismissing the revision was set aside, revision was allowed and judgment and decree of the Trial Court (J.S.C.C.) decreeing the suit of the landlord was set aside.
(2.) THERE is absolutely no necessity to enter into the merit of the case and decide as to whether review was rightly allowed or not. The order sought to be reviewed i.e. order dated 20.8.1982 having been confirmed by this Court in writ petition; w.e.f. the said date review petition became not maintainable. Review petition was liable to be dismissed on the said ground alone. Accordingly, impugned order dated 4.2.1988 is set aside. Writ petition is allowed. Respondent No. 2 behaved in utterly dishonest manner by concealing the fact of dismissal of his writ petition, hence cost of Rs. 5,000/ - is imposed on him. Writ petition is allowed with cost of Rs. 5,000/ -. It is further directed that for the period since 20.8.1982 when revision was earlier dismissed by A.D.J., till the date of eviction respondent No. 2 shall pay damages for use and occupation at the rate of Rs. 300/ - per month. As the matter is quite old hence execution proceedings shall be decided very expeditiously. Writ petition allowed accordingly.;