Sanjay Misra, J. - (1.) HEARD Sri P.K.S. Paliwal, learned Counsel for the petitioner and Sri S. Mohan, learned Counsel appearing on behalf of respondent No. 1. By means of this writ petition, the petitioner has challenged the order dated 17.6.1992 contained in Annexure -2 to the writ petition whereby the Rent Control and eviction Officer has rejected the application of the petitioner under section 21(8) of U.P. Act No. XIII of 1972 in case No. 29 of 1991 on the ground that the premises in question is vacant and therefore, no proceedings can be continued for enhancement of rent. The Appellate Court has also dismissed the appeal of the petitioner on the ground that the petitioner himself had filed the suit No. 359 of 1991 before the Court of Civil Judge Azamgarh and has obtained injunction against the bank not to vacate the premises in question as such the Appellate Court was of the view that since the petitioner himself had prevented the bank from vacating the premises therefore, the possession of the bank was not of its own accord therefore, the proceedings under section 20(8) of the Act were not maintainable. It has consequently confirmed the order passed by the Rent Control & Eviction Officer.
(2.) IN a supplementary affidavit filed on behalf of the petitioner, a true copy of the judgment dated 13.1.1993 passed in the aforesaid suit No. 359 of 1991 has been filed as Annexure -1. A perusal of the aforesaid judgment shows that the Court of Civil Judge Azamgarh had restrained the bank from damaging the building in any manner without taking prior consent of the owner landlord. The Court had also directed that the parties had agreed before it to the effect that the respondent bank can remove its lockers, safes and cabinets etc. from the first floor by breaking the wall and taking out the said items and thereafter to rebuild the broken portion. From the aforesaid it is quite clear that there was no injunction of the Civil Judge Azamgarh in suit No. 359 of 1991 preventing the bank from removing its assets from the premises in question. It is argued on behalf of the respondent bank that the petitioner himself had not given permission to the bank to remove its effects by breaking the wall and therefore, the said items could not be removed through the doors and windows. It is stated that in view of the aforesaid conduct of the petitioner, the respondent bank could not remove its effects due to non -grant of permission by the petitioner and had to continue in possession.
(3.) LEARNED Counsel for the petitioner submits that inspite of the specific order dated 13.1.1993, respondent bank has not removed its effects and is occupying the same although the permission was given before the Court on 13.1.1993. The claim of the petitioner for enhancement of rent therefore, had to be considered in view of the fact that there was no injunction operating against bank from vacating the premises nor it can be said that by the conduct of the petitioner, the bank, was prevented from vacating the premises.;