SUNEET KUMAR, J. - (1.) BY means of the present petition, the petitioners are assailing the order dated 09.03.2015 passed by the Prescribed Authority, Moradabad, District Moradabad in P.A. Case No. 14 of 2008 (Dinesh Chandra Agarwal Versus Shankar Lal), by which the petitioners' application (23 -C) for dropping the proceedings of the respondents has been rejected.
(2.) THE petitioner had earlier approached this Court by filing a petition being Writ Petition No. 30137 of 2010, Rajiv Kumar and others Versus Prescribed Authority/Small Causes Judge and another, wherein a prayer was made for setting aside the order dated 12.05.2010 passed in the aforementioned P.A. case. The petition was disposed of by order dated 07.11.2013 which is extracted as follows: - "The facts giving rise to the present case are that it appears the respondent no.2 has filed P.A. Case No. 2 of 1997 against one Shankar Lal. The aforesaid release application was allowed in terms of the compromise on 5th February, 1997, a copy of the order has been brought on record as Annexure 2 to the writ petition. It appears that for executing the aforesaid order Misc. P.A. Case No. 14 of 2008 has been filed against the respondent no.2. In the aforesaid case the present petitioners, who claims themselves to be the tenant of Dinesh Chandra, respondent no.2 in the shop vacated by Shankar Lal have filed an application for cross examination of Dinesh Chandra to the affidavits filed by Dinesh Chandra, paper nos. 23 -C and 24 -C. The aforesaid application has been rejected on the ground that P.A. Case No. 2 of 1997 was in between Dinesh Chandra and Shankar Lal and the petitioners being stranger to the proceeding have no right of cross examination in the execution case. The writ petition has been filed making various allegations stating that Dinesh Chandra and Mahesh Chandra are real brothers and they have purchased the entire building from one Kailash Narain Mehrotra in the year 1994 in which disputed shop is situated. Apart from disputed shop there are other shops in the tenancy of various tenants. Father of the petitioners, late Munni Lal was also tenant in the shop in question and his eviction was sought for by the brother of respondent no.2 Sri Mahesh Chandra by filing a release application under section 21(1)(a) of the U.P. Act No. 13 of 1972. The said case was registered as P.A. Case No. 36 of 1998. It is stated in paragraph no. 11 of the writ petition that in the aforesaid release application a compromise was entered into in between father of the petitioner and Mahesh Chandra, brother of Dinesh Chandra and in the premises the shop occupied by Shankar Lal which later on released in terms of the compromise vide order dated 5.2.1997 was handed over to the father of the petitioners. However, the said release application was dismissed for default in absence of both the parties on 6.1.1999. Thereafter, Misc. Case No. 14 of 1997 has been filed by respondent no.2. In the said case an application was filed by Sri Shankar Lal on 21.2.2009/3.3.2009 which has been brought on record as Annexure 9 to the writ petition (Paper No. 16 -C) stating therein that the said release application being P.A. Case No. 14 of 1997 was allowed on 5.2.1997 and the applicant, Shankar Lal has handed over the possession in February, 1997 to the landlord and he is not in possession of the shop in question. This averment has been made in paragraph 19 of the writ petition. The reply of paragraph 19 of the writ petition has been given in paragraphs 17 and 18 of the counter affidavit in which factum of the filing of the application dated 3.3.2007 has been denied with the further averment that Shankar Lal filed other applications dated 7.11.2008 and 21.2.2009. The application dated 7.11.2008 has been filed by Shankar Lal saying that the execution is barred by time as the same has been filed after eleven years whereas in the application dated 21.2.2009 it is stated that he has withdrawn the Vakalatnama of Sri Krishna Sharma who was instructed by him to appear in the case. It may be noted that in the counter affidavit there is no denial of filing of application dated 21.2.2009/3.3.2009. It is stated in the writ petition that in the release application, P. A. Case No. 36 of 1998, a compromise was entered and in that compromise the shop vacated by Shankar Lal was agreed to be given to the father of the petitioner and thereafter the petitioners came into possession of the shop vacated by Sri Shankar Lal and Sri Dinesh Chandra has been issuing receipts of payment of rent. In support of the above case the petitioners have brought on record two receipts, Annexures 5 and 6 to the writ petition. The factum of issuing of receipt has been denied by the other side. It is stated that receipts are forged. Be that as it may, in P.A. Case No. 2 of 1997 the father of the petitioner was not a party and the said release application was allowed. The release application filed by Sri Mahesh Chandra brother of Sri Dinesh Chandra being P.A. Case No. 36 of 1998 was dismissed for default on 6.1.1999. It is stated in the counter affidavit that the alleged compromise in P.A. Case No. 36 of 1998 was never verified and the said release application was also not decided in terms of the compromise. By the impugned order the petitioners' application seeking cross examination of Dinesh Chandra in the execution case has been rejected which was filed after filing of paper nos. 23 -C and 24 -C by Sri Dinesh Chandra. I do not find any error in the order passed by the Prescribed Authority rejecting the petitioners' application seeking cross examination of Dinesh Chandra as his father was not party in the release application of which execution has been sought. However, it is observed that in case the petitioners file an appropriate objection taking all those grounds which have been raised here in this writ petition before the Prescribed Authority in the execution case, the learned Prescribed Authority after considering the petitioners' objection shall pass an appropriate order in the execution case. Needless to say that in case the Prescribed Authority finds some substance in the objection of the petitioners he may proceed accordingly and in case he does not find any substance he is free to pass an independent order in accordance with law. With the aforesaid observation, the writ petition is disposed of. However, it is observed that earlier direction given by this Court in Writ A No. 7104 of 2010 on 10.2.2010 shall remain operative with the further rider that no unnecessary adjournment shall be granted to the parties. In case any adjournment is sought by any one of them that shall be granted only after imposing some cost with the direction to deposit the same before the next date fixed."
(3.) THE facts of the case has already been noticed in the earlier order which need not be repeated. Learned Prescribed Authority has noted in the impugned order that the applicant/petitioners are third party, their main objection is that in 1998 the shop in question was given to the father of the petitioners pursuant to a compromise in P.A. Case No. 36 of 1998. The father of the petitioners was continuously paying the rent and the petitioners have paid the rent till 2008 to the second respondent Dinesh Chandra Agarwal.;