- (1.) PRAKASH Krishna, J. This is tenant's petition. It arises out of an application filed by the landlady respondents for release of the disputed shop which is situate in a room of house No. 127 Naya Meerapatti, Allahabad. The petitioner is carrying on the business of self dynamo and battery at monthly rent of Rs. 250/ -. Smt. Chandra Prabha Devi (since deceased), the landlady of the premises filed a release application of the shop for the bona fide need of her two unemployed sons Ashok Kumar and Manoj Kumar. The said shop is situate on main G. T. Road. It was stated in the release application that the landlady along with her family which consists of five married couples is residing in two rooms accommodation of the same building behind the disputed shop. She pleaded that she will get a shop of motor parts opened in the disputed shop so that her two sons Ashok Kumar and Manoj Kumar may earn their livelihood and settle in the life. A written statement by way of reply was filed by the petitioner denying the need of the landlady. Along with the written statement an affidavit of two paragraphs verifying the contents of the reply/written statement was also filed. The release application was allowed by the Prescribed Authority by the order dated 29th of July, 1998 on the finding that the needs of the landlady is bona fide and genuine and she would suffer greater hardship in case the release application is rejected. Against the said order rent control appeal No. 191 of 1998 was filed which has been dismissed by the impugned order dated 17th of November, 2006 by the Court below.
(2.) SHRI G. S. Srivastava, the learned Counsel for the petitioner in support of the writ petition submitted the following two points : (1) That no opportunity of hearing was afforded to the petitioner by the Prescribed Authority while deciding the release application as the release application was decided, according to him ex parte without hearing the arguments of the learned Counsel for the petitioner. (2) The tenant petitioner had filed reply to the release application as also affidavit and therefore, the observation made in the judgment of the Prescribed Authority that no affidavit was filed by the petitioner is incorrect. In response, the learned Counsel for the respondent submitted that the petitioner is in habit of taking all sorts of technical objections and shifting his stand in the various stages of proceedings. The Counsel for the petitioner had advanced the argument before the Prescribed Authority and the contention that the arguments were not heard is factually and legally incorrect. It was further submitted that the petitioner tenant's Counsel himself stated that he does not want to file any evidence in support of his objections, as noted in the order-sheet dated 20-2-1998. Therefore, no prejudice has been caused to the petitioner in any manner. The relevant facts so far as it relates to point No. 1 is concerned may be noted. The contention of the learned Counsel for the petitioner is that the case was received on transfer on 17-7-1998 by the Court of Special C. J. M. , Allahabad from the Court of J. S. C. C. vide District Judge's order dated 30-6-1998. Thereafter it was ordered to be put up on the date fixed i. e. 8th of July 1998 which happened to be a holiday. It was taken on the next day but on account of the resolution of the bar that no adverse order be passed, no order was passed and 13th of July, 1998 was the next date fixed. On that day, the Counsel for the landlady was present but none was present on behalf of the tenant and it was ordered that the case be placed on 22-7-1998 and notice be given to the opposite party i. e. the tenant who is petitioner herein. On 22nd of July, 1998 it was found that notice was not given to the learned Counsel for the tenant and 27th of July, 1998 was the next date fixed. On that day the case was heard on merits and the judgment was reserved which was delivered on 29th of July, 1998. The order-sheet dated 29th of July, 1998 mentions that the argument of the learned Counsel for the applicant (landlady) was heard. On the basis of the said entry in the order-sheet the learned Counsel for the petitioner argued that the case was decided ex parte and none appeared to argue out the case on 27th of July, 1998. He submits that the judgment of the Prescribed Authority be set aside and the matter be restored back to the Prescribed Authority for afresh decision after affording opportunity of hearing to the parties concerned. The said submission was not accepted by the appellate Court on the ground that in the judgment, the Prescribed Authority has mentioned that he heard the Counsel for the parties. The contention of the petitioner's Counsel is that in view of the entry made in the order-sheet dated 22-7-1998, it is established that the petitioner was not heard by the Prescribed Authority.
(3.) THE question, thus, falls for determination before this Court is whether the petitioner's Counsel was heard by the Prescribed Authority or not. Pointedly, a query was put by the Court as to why an application for setting aside of the order of the Prescribed Authority if it was ex parte, was not filed. No satisfactory reply has been given by the learned Counsel for the petitioner. Section 34 of the Act prescribes the powers of the various authorities and procedure to be followed by them while deciding a dispute between the parties. It provides that the powers vested in civil Court under the Code of Civil Procedure when trying a suit shall be vested in the District Magistrate, the Prescribed Authority or any appellate or revising authority in respect of the matters specified therein. Clause (g) of Section 34 (1) says that besides the matters enumerated in clause (a) to (f), any other matter may be prescribed. Rule 32 of the Rules framed under the Act specifically confers power on the District Magistrate, the Prescribed Authority or the appellate or revising authority as the case may be, to set aside an ex parte order on sufficient cause including an ex parte order passed under Section 21 of the Act releasing any building or specified part thereof or any land appurtenant to such building. Initially, it was argued that there is no provision either under the Act or the Rules conferring power on the Prescribed Authority to recall or set aside the ex parte order. But the said argument was not pressed any further when his attention was drawn towards the Section 34 of the Act and Rule 32 of the Rules framed under the Act. No doubt, it is open for a party instead of filing an application for setting aside the ex parte order, he may elect to file an appeal against the alleged ex parte order. But certainly non-filing of an application which is expedient and speedy remedy by the petitioner on the facts of the present case is a very relevant circumstance. Had the Counsel not argued the matter before the Prescribed Authority he could have very easily pointed out this fact to the Court concerned by filing an application and I see no reason if the Court inadvertently mentioned in the judgment that it heard the Counsel for the parties, not to have rectified the mistake.;