- (1.) This writ petition has been filed for quashing the order dated 3.9.2009 passed by Additional District Judge (Court No. 2), Ghaziabad in Rent Control Appeal No. 61 of 2007 by which application No. 22-C moved by petitioner tenant was dismissed.
(2.) The facts arising out of writ petition are that petitioner is tenant in Shop No. 225, New No. 235 situated at Mohalla Kanhaiya Lal Agarsen Bazar, Ghaziabad. The respondent is the landlord and has purchased the said shop in question from earlier owner namely Smt. Sudha Mangal, Puneet Mangal, Poonam Mangal and Km. Bhawan Mangal. The landlord-respondent filed a suit for ejectment and arrears of rent against petitioners, which was dismissed by its order dated 1.11.2004. Against the said order, respondent-landlord filed a revision which is still pending. In the meantime, respondent-landlord filed an application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 for release of the said accommodation. A written statement was filed by petitioner. The prescribed authority vide its judgement and order dated 8.5.2007 was pleased to release the accommodation in dispute in favour of landlord-respondent and directed petitioner to handover the possession. Petitioner aggrieved by order of release against him filed an appeal with an application for stay of the execution of the judgement. During pendency of application petitioner moved an application No. 30-C for a direction for production of will dated 10.4.2002. Prescribed Authority rejected the said application. Against that order, petitioner filed a Writ Petition No. 71528 of 2005, which was dismissed on 22.1.2005 holding therein that the order passed is an interlocutory order and if ultimately prescribed authority decided the case against petitioner, he can challenge the same in appeal. In view of aforesaid fact, an application No. 22-C was moved under Section 34 and Rule 22 of the U.P. Act No. 13 of 1972 and under Section 151 of Civil Procedure Code with a prayer to direct the respondent-landlord to produce the copy of the alleged will dated 10.4.2002 but by the impugned order, the Appellate Authority has rejected the application.
(3.) Sri K.N. Tripathi, learned Senior Advocate, assisted by Sri Raj Kumar, Advocate, has submitted that the court below without considering the order dated 22.11.2005 passed by this Court in the writ petition has rejected the application. The order impugned has been passed without considering the submission made by petitioner that alleged will dated 10.4.2002 by Sri Om Prakash, father of respondent-landlord is a forged document. Only with an intention to get the shop in question vacated , a forged will has been prepared and in collusion moved an original suit No. 772 of 2003 and has obtained a decree with an intention only to give legal force of the will in question. The court below has also not considered this aspect of the matter that original copy of the alleged will has not been produced before any authority because that was the main issue to be decided whether the will was genuine or not and regarding the maintainability of the application filed by respondent-landlord under Section 21(1)(a) of the Act. A finding to this effect that judgement passed in Suit No. 672 of 2003 has not been challenged in any court of law, is wholly illegal and cannot be sustained in view of the fact that petitioner was not a party to the said suit, therefore, has got no right to challenge the same. The production of the will is necessary in the end of justice but the court below has rejected the application.;