B.L.Loomba - (1.) I have heard the learned counsel for the parties. The controversy relates to House No. 430, Civil Lines, Unnao of which the petitioner A. N. Nigam, Advocate is the owner. The petitioner sought release of this house under section 16 of the U. P. Act XIII of 1972 and it appears it was released in his favour under order of the District Judge, Unnao dated 1-2-1974 on the ground that it was needed by the petitioner for his own occupation and use. It appears that on the basis of a complaint that the petitioner after having the premises got released, had illegally let it out to other persons. An inquiry was made and the order of release was cancelled and the premises were allotted in favour of respondent Chandrapal on 18-12-1978. At that time Chandrapal was a Member of the State Legislature. The petitioner was required to hand over possession of the premises to the allottee Chandra Pal respondent no. 5 in the present writ petition.
(2.) FACED with the order of cancellation of the release and the allotment of the premises in favour of respondent Chandra Pal, the petitioner filed Civil Suit No. 209 of 1978. Copy of the plaint of that suit is filed as Annexure 1 to the writ petition. Validity of the order of cancellation of the release and the order of allotment was challenged and relief of permanent injunction was sought restraining defendant no. 1 and defendant no. 2, the District Magistrate, Unnao and Rent Control and Eviction Officer, Unnao respectively from enforcing the order of allotment of taking possession of the premises on the basis of the said allotment order. The suit was filed on 20-12-1978. Ad interim injunction was sought and it appears an ad interim injunction was granted in favour of the petitioner on 21-12-1978. Respondent Chandra Pal filed objections against the temporary injunction application on 23-12-1978 stating that on the basis of order of allotment dated 18-12-1978, he had obtained possession of the house on 19-12-1978. The application for temporary injunction and objections filed by the respondent were disposed of by order dated 23-12-1978, Annexure 5. According to this order, the allotment was, prima facie, not according to law. As regards possession, it was observed that "it is difficult to believe that possession would have been delivered by the landlord in the manner suggested by defendant no.4." Accordingly, temporary injunction application was allowed and it was directed that defendants are restrained from enforcing the allotment order dated 18-12-1978 against the plaintiff and injunction order dated 21-12-1978 against defendant no. 4 (respondent Chandra Pal) was confirmed. According to the petitioner's case, respondent Chandra Pal despite the injunction order, broke up the lock of the house and took forcible possession and removed the plaintiff's goods. A report in the matter was said to have been lodged at the Police Station Kotwali on 25-12-1978 and an application under section 151 of the Code of Civil Procedure was also moved seeking restoration of the possession; the report and the application are Annexure 6 and 7. The respondent filed his objections. This application under section 151 of the Code of Civil Procedure was disposed of by the IVth Additional Munsif, Unnao on 27-10-1980 vide his order Annexure 10. Learned Munsif held that possession of the respondent was unlawful and he directed him to deliver back the possession of the house to the plaintiff within one week. Revision was filed by the respondent against this order dated 27-10-1980. This revision was disposed of by the District Judge, Unnao by his order dated 16-4-1981, Annexure 12. As would appear from this order, the points raised on behalf of the respondents in revision were that the order of the learned Munsif challenged in revision was bad for want of jurisdiction as the order for cancellation of the release passed under section 19 was final and not liable to be questioned before the Civil Court in view of section 37 of U. P. Act XIII of 1972, that the respondent had taken possession of the house in pursuance of the order of allotment and his possession was not unlawful and that the learned Munsif had no jurisdiction to direct restoration of possession under section 151 of the Code of Civil Procedure even if the possession was, prima facie, found not to have been taken according to law. The learned District Judge allowed the revision and set aside the order of the learned Munsif dated 27-10-1980 and directed the learned Munsif to decide the matter afresh after giving opportunity to the parties to lead evidence on the question whether the respondent had taken possession over the house subsequent to the injunction order or had already acquired possession prior thereto. It was also directed that this inquiry will be made alongwith the proceedings under Order 39, rule 2 (3) of the Code of Civil Procedure, because the same question calls for consideration in that proceeding also. Aggrieved by this order of the District Judge, the present writ petition was filed mainly on the ground that the District Judge had no jurisdiction to set aside the order of the learned Munsif in exercise of his revisional jurisdiction and the question of fact as to the defendant-respondent having taken possession after the issue of temporary injunction was not open to be considered in the revision proceedings.
(3.) IN the present case, as is clear from the above, the District Judge by the impugned order remanded the matter to the learned Munsif for reconsideration and a decision afresh after giving opportunity to the parties to lead evidence on the question whether the revisionist petitioner had obtained possession prior or subsequent to the passing of the temporary injunction on 21-12-1978. This inquiry was directed to be made along with the proceedings under Order 39, rule 2 (3) of the Code of Civil Procedure. This order was passed on the basis that the learned Munsif had not recorded any positive finding on this point and made observations merely on the basis of probabilities without inviting evidence of the parties. This position seems to be correct on a careful reading of the order of the learned Munsif which was not challenged before the District Judge. While it may be true that the landlord would not have delivered the possession of his own in pursuance of the allotment order, nevertheless the respondent could proceed to take possession of his own. If the respondent took possession in an unauthorised way on 23-12-1978 as is the case of the landlord petitioner, the possibility of the respondent taking possession likewise on 19-12-1978 could not be ruled out. Taking of possession whether on 19-12-1978 or 23-12-1978 was, obviously, not in accordance with the procedure laid down under the Rules because even after the allotment, the possession was required to be delivered by the landlord and on his refusal to do so, the allottee can be put in possession by the Rent Control authorities. What is directly relevant, however, for the purposes of present controversy is whether the respondent had taken possession of his own prior or subsequent to 21-12-1978 when the temporary injunction was initially issued. On this question of fact, no positive finding was recorded by the learned Munsif and, in any case, not after inviting evidence on the point. Such evidence necessarily will require to be given in proceedings under Order 39, rule 2 (3) of the Code of Civil Procedure. Accordingly, the impugned order of the District Judge cannot be said to be bad in law and having been passed without jurisdiction. It appears that the jurisdiction of learned Munsif to direct dispossession of the respondent was questioned before the District Judge and that provided adequate basis to entertain the revision and pass the order. The impugned order of the District Judge, to my mind, cannot be said to be illegal having been passed in exercise of jurisdiction not vested in him. No case has, as such, been made out for interference by this Court under Article 226 of the Constitution. The writ petition is liable to be dismissed and is, accordingly, dismissed. Costs on parties. Petition dismissed.;