Prakash Krishna, J. - (1.) Having regard the learned Counsel for the parties, I do not find any legal error in the order dated 23rd of February, 2007 whereby the Court below has dismissed the application filed by the present petitioners who are tenants to restore the appeal to its original number. It appears that the respondents No. 2 and 3 initiated proceedings against the petitioner under Explanation - III to Section 21 of U.P. Act No. 13 of 1972 on the allegation that the landlords are covered under the definition of Indian Soldiers Act as defined in Indian Soldiers (Litigation) Act, 1925. The said Explanation provides for immediate release of the disputed accommodation to such a landlord and the Court shall not be required to look into the bonafide need of such a landlord and question of comparative hardship will also not arise. The release application filed by the respondent landlord was ailowed by the Prescribed Authority by the order dated 18.5.2005. Challenging the aforesaid order, rent control appeal No. 8 of 2005 was filed by the present petitioners. The said appeal remained pending for a considerable period of time. The landlord feeling frustrated filed a writ petition No. 8205 of 2005 in this Court for early disposal of the said appeal. This Court by its order dated 30th of March, 2006 directed the appellate authority to decide the aforesaid rent control appeal No. 8 of 2005 : Ramji Das v. Rajendra Mohan Mathur pending before it within a period of 6 months. It appears that the dates after dates were being fixed in the said appeal due to non cooperation of the present petitioners. Ultimately, 18th of September, 2006 was the date fixed. On that date also an adjournment application was filed by the present petitioners. The said application was rejected by the appellate Court with the observation that it will hear the arguments on appeal after lunch. The petitioners failed to appear after lunch intentionally. However, the appellate Court in the interest of justice fixed 20th of September, 2006 as the next date. The case was adjourned on that date also and thereafter 22nd of September, 2006 and 25th of September, 2006 were the dates fixed. The landlord remained present in person on these dates in the Court for the whole day but the petitioner's Counsel did not turn up to argue the case. The appeal was ultimately dismissed on 26th of September, 2006 by the appellate Court on the finding that the six months time granted by the High Court is going to expire on 30th of September, 2006. An application to recall the said order was filed by the present petitioners on the ground that the petitioner No. 2 could not appear as he suddenly fell ill on 20th of September, 2006. The said application has been rejected by the impugned order by the Court below on the finding that the application has been filed on untenable grounds. Feeling aggrieved against the aforesaid order the present writ petition has been filed.
(2.) The appellate authority has noted the conduct of the petitioners in detail and has found that the petitioners have not acted bonafidely and every attempt was made by them to get the hearing of the appeal adjourned on one pretext or the other, in spite of repeated opportunities granted by the Court to them. The appellate Court disbelieved the assertions of the petitioners with regard to the illness of the petitioner No. 2 on 20th of September, 2006. The appellate Court has not into consideration the attending facts and circumstances of the case and has recorded a finding of fact the medical certificate which was not originally filed along with the restoration application but was file subsequently along with the rejoinder affidavit is false and concocted document and has been obtained for the purposes of the case.
(3.) A copy of the restoration application has been annexed as Annexure 5 to the writ petition. I have perused the said application. It is interesting to note that in Para 5 of the said application only this much has been granted by the petitioner No. 2 that he fell ill on 20th of September, 2006 while returning. The nature of the illness has not been disclosed therein. This shows that the theory of illness as set up by the petitioner No. 2 is nothing be a cock and bull story. In this view of the matter, the observation of the Court below that even medical prescription has not been filed by the petitioners to prove his illness, is also a relevant fact. A copy of the medical certificate was produced by the learned Counsel for the petitioners during the course of hearing of the writ petition. The said medical certificate was disbelieved by the Court below on the finding that it is a manufactured document. On a bare perusal of the said medical certificate I find no reason to disagree with the finding of the appellate Court on this point. In the medical certificate only this much has been written that the patient was suffering with some pain in the back bone.;