B.L. Loomba, J. - (1.) Ajit Kumar Mehrotra, Krishna Kumar Mehrotra Sons and Smt. Rani Mehrotra widow of Shri Gaya Prasad Mehrotra have filed this application seeking recall of the judgment dated 3-11-1980 passed in Writ Petition No. 3405 of 1979 and to dispose of the said writ petition after giving opportunity of hearing to the applicants. Therefore, the said judgment dated 3-11-1980 was recalled and the writ petition was allowed and the order passed by the Zila Poorti Adhikari (Rent Control), Lucknow dated 18-10-1979 Annexure 20 to the writ petition was quashed and it was directed that Opposite Party No. 1, Zila Poorti Adhikari (Rent Control), Lucknow shall decide the matter afresh in accordance with law in the light of the observations contained in the judgment. In other words the matter was remanded to the Zila Poorti Adhikari (Rent Control) Lucknow for decision afresh.
(2.) Kunwar Gulab Singh, Advocate had filed the said writ petition impleading Zila Poorti Adhikari (Rent Control) Lucknow as Opposite Party No. 1 and Achal Behari Mehrotra and Gaya Prasad Mehrotra, Opposite Parties 2 and 3 respectively. A perusal of the judgment would show that the question in dispute was as to who out of the two Gaya Prasad Mehrotra and Achal Behari Mehrotra was the landlord of the premises in dispute. The proceedings before the Rent Control and Eviction Officer were under Section 16 of U.P. Act No. XIII of 1972 seeking release of the premises in favour of the landlord. Achal Behari Mehrotra Opposite Party No. 2 had filed counter-affidavit but no one appeared on his behalf at the time of the hearing of the writ petition Learned Standing Counsel representing Opposite Party No. 1 Rent Control and Eviction Officer had not chosen to put in appearance and contest the writ petition. In so far as Gaya Prasad Mehrotra, Opposite Party No. 3 is concerned the observation made in the said judgment was that "Gaya Prasad Mehrotra has not put in appearance in spite of service being deemed sufficient under the Rules of the Court. In the present C.M. application filed by the heirs of late Gaya Prasad Mehrotra it has been alleged that the petitioner (Kr. Gulab Singh) in order to grab the property in collusion with Opposite Party No. 2, Achal Behari Mehrotra manoeuvered the allotment in his favour and in the absence of late Gaya Prasad Mehrotra and the present applicants forcibly occupied the premises. As would become clear from the Civil Misc. Application, following grounds of challenge have been raised to challenge the impugned judgment and on that basis to seek the recall thereof:- (1) That no notice of the writ petition was ever served on Gaya Prasad Mehrotra and that the petitioner played fraud upon this Court and manoeuvered to have the writ petition decided without affording opportunity to Gaya Prasad Mehrotra to contest the writ petition. (2) That Gaya Prasad Mehrotra and after in his death the present applicants had been contesting the case from the very beginning but they were misled by the following observations contained in the judgment "Only Opposite Party No. 2 Shri Achal Behari has filed a counter-affidavit in which he reiterated that he was the owner landlord of the premises and that Shri Gaya Prasad Mehrotra had nothing to do with the premises. Gaya Prasad Mehrotra had not put in appearance in spite of service being deemed sufficient under the Rules of the Court. On behalf of the Opposite Party No. 1. The Rent Control and Eviction Officer, the learned Standing Counsel has not chosen to put in appearance." (3) That the correct factual position came to the knowledge of the applicants Counsel when the file of the case was summoned by this Hon'ble Court during the course of hearing in Writ Petition No. 2258 of 1982 Mr. Gulab Singh v. IInd Additional District Judge and others, on 11-10-1985. (4) That the applicant did not move application seeking recall of the judgment dated 3-11-1980 earlier for the reason that late Gaya Prasad Mehrotra and thereafter the applicants were misled by the observation quoted in the ground mentioned at No. 2 above (see Paragraph 13 read with Paragraph 7 of the Civil Misc. Application).
(3.) Kr. Gulab Singh, petitioner in writ petition has contested this Civil Misc. Application and has filed counter-affidavit dated 18-10-1986. Main points raised and alleged in the counter-affidavit may broadly be mentioned below:- (a) That Gaya Prasad Mehrotra was alive when the writ petition was decided on 3-11-1980 and that he was sufficiently served and the service of the notice of the writ petition on him was considered by this Court sufficient. (b) That Gaya Prasad had full knowledge of the pendency of the (Writ Petition No. 3405 of 1979) and was fully alive to the proceedings therein. (c) That Gaya Prasad Mehrotra participated in the proceedings before the Rent Control and Eviction Officer after the remand of the case under judgment dated 3-11-1980. The application for release of the accommodation was dismissed by the Rent Control and Eviction Officer by order dated 13-2-1981 and the accommodation in question was allotted in favour of the deponent (Kr. Gulab Singh) by order dated 13-2-1981, Gaya Prasad Mehrotra applied for the review of the order dated 13-2-1981 by application moved on 14-3-1981. The review application was rejected on 4-11-1981. Gaya Prasad Mehrotra, thus, participated in the proceedings after the remand of the case under judgment dated 3-11-1980 and never challenged the judgment dated 3-11-1980 in his life-time. (d) That the present Civil Misc. Application has been moved after about 5 years without any valid explanation for delay and the Civil Misc. Application has been moved with ulterior motive to have the disposal of the W.P. No. 2258 of 1982 (filed by the deponent Kr. Gulab Singh) filed against the present applicants of Civil Misc. Application and others. It has been alleged that the judgment in Writ Petition No. 2258 of 1982 was being dictated when the learned Counsel for Ajit Kumar Mehrotra (applicant of the Civil Misc. Application) prayed that the judgment may not be dictated since they were going to move an application seeking recall of the judgment dated 3-11-1980 and as a result disposal of Writ Petition No. 2268 of 1982 has been deferred pending disposal of the present Civil Misc. Application.;