- (1.) M. Katju, J. Heard Sri R. N. Bhalla for the petitioner and Sri Kushal Kant for the respondents.
(2.) THIS writ petition reveals a shocking state of affairs. The facts of the case are that the petitioner is the land lady of a portion of premises No. 86/104, Raipurwa, Kanpur. She filed an eviction petition under Section 21 (l) (a) of U. P. Urban Buildings Act against the tenant Sarju Prasad which was decreed. Sarju Prasad filed an appeal under Section 22 of the Act which was rejected, and thereafter he filed a writ petition being writ petition No. 2354 of 1987 which was also dismissed by this Court on 16. 1. 87. True copy of the judgment of this Court in an-nexure-1 to the writ petition. When the writ petition was being dismissed, the petitioner in that petition, Sarju Prasad (who is respondent No. 1 in the present petition) gave an undertaking that he will vacate the premises in three month's time. Hence, he should have vacated the said premises on or before 16. 4. 87. However, instead of vacating the said premises it appears that Sarju Prasad instigated his brother Radhey Lal to file an injunction suit being Suit No. 720 of 1987 Radhey Lal v. Kanti Devi. True copy of the plaint in the said suit is annexure-2 to the writ petition. In reply to the allegation in the plaint, the land lady (the petitioner in the present writ petition) filed her written statement, true copy of which is annexure-3 to the writ petition. In this written statement it was specifically pleaded that the suit is not maintainable and is an abuse of the process of the Court, since in respect of the same premises the High Court had upheld the eviction order under Section 21 of the U. P. Urban Buildings Act. It appears that instead of handing over possession of the said premises, which consists of only one room and common amenities in the ground floor of premises No. 86/104 Raipurwa, Kanpur, Sarju Prasad fraudulently handed over possession of the same to his real brother Radhey Lal, who is respondent No. 2 in this writ petition. The learned Munsif Magistrate before whom the aforesaid suit No. 720 of 1987 was filed rejected the temporary injunction application of Radhey Lal by order dated 24. 11. 88 vide annexure-5 to the writ petition. A perusal of this order shows that a finding of fact has been recorded in the said order that Radhey Lal lived in a different portion of premises No. 86/104 and has nothing to do with the disputed portion, whose tenant was Sarju Prasad. Thus, in fact there were two tenancies in premises No. 86/104, one of Jagannath (father of Radhey Lal and Sarju Prasad) on whose death it was inherited by Sarju Prasad, and the other of Radhey Lal. Hence, Radhey Lal had nothing to do with the tenancy of Sarju Prasad, and yet he fraudulently filed the suit No. 720 of 1987 only to frustrate the judgment of this court in writ petition No. 2354 of 1987.
(3.) AGAINST the order of the learned Munsif Magistrate rejecting the temporary injunction application Radhey Lal filed an appeal being appeal No. 308 of 1988 which was allowed by Sri T. N. Misra, the then IInd Additional Civil Judge, Kanpur Nagar, by his judgment dated 17. 10. 90 vide annexure-6 to the writ petition. It is this judgment which is assailed in the present writ petition. In my opinion, there could not be any manner of doubt that Suit No. 720 of 1987 was a fraudulent and mala fide suit whose whole purpose was to frustrate the eviction decree against Sarju Prasad which had been upheld by this Court. Sri T. N. Misra, the then Hnd Additional Civil Judge, Kanpur Nagar, on a specious and false reasoning has held that Radhey Lal was a co-tenant, and since no decree had been passed against him he could not be evicted from the premises in dispute.;