Nov-Dec2002.Pdf

770 INDIAN LAW REPORTS ALLAHABAD SERIES [2002 APPELLATE JURISDICTION within one year from 16th August, 1996 CIVIL SIDE i.e. by 15th August, 1997. Even after DATED: ALLAHABAD 11.12.2002 15th August, 1997 more than five years elapsed and the land lord has not been BEFORE able to get possession. This is an THE HON'BLE G.P. MATHUR, A.C.J. additional reason for not exercisingin any THE HON'BLE ASHOK BHUSHAN, J. discretion in favour of tenant in writ jurisdiction. Case law discussed: Special Appeal No. (589) of 2002 c 2000(5) SCC -44 i AIR 1979 SC-1528 n Anand Mohan Sharma …Appellant 1995 Supp. (2) SCC-539 . Versus 1998 (6) SCC-507 t Niranjan Lal Gupta and others JT 1992 (2) SC-65 r …Respondents AIR 1980 Delhi 39 AIR 1984 SC 1826 u U.P. Urban Buildings (Regulation of o Letting, Rent and Eviction) Act- 1972- (Delivered by Hon'ble Ashok Bhushan, J.) 16(i) (h) release application- c undertaking given by the tenant- writ h petition dismissed by granting three 1. We have heard Sri Ravi Kant, months period, provided the undertaking Seniorg Advocate, appearing alongwith Sri is given before the R.E.C.O. within three Manoji Kumar Pandey for the appellant days- despite of undertaking the tenant hand Sri Arjun Singhal appearing on behalf preferred Appeal- R.E.C.O. issued form d of respondent no. 1. 'e' but refused by the District Magistrate- challenge made before High Court-a allowed the writ petition- direction 2. By this appeal, the appellant has issued to the District Magistrateb for challenged the judgment dated 23rd eviction- can not be interfered ina Special October, 2002 passed by learned single Appeal. Judge in Writ Petition No. 35613 of 2002 h (Niranjan Lal Gupta vs. District Held- Para 20 Magistrate, Allahabad and another) la It is clear that Highl Court while allowing the writ petition filed by exercising jurisdictiona under Article 226 respondent no. 1. of the Constitution. can issue appropriate directions for enforcing an undertaking 3. The facts giving rise to this appeal, given by a partyw before it and learned briefly stated, are; father of respondent single Judge while allowing the writ no. 1 moved an application under Section petition vide its judgement dated 23rd October, 2002w has not committed any 16 (1) (b) of U.P. Urban Buildings error win exercise of jurisdiction under (Regulation of Letting, Rent and Eviction) Article/ 226 of the Constitution. We do Act, 1972 for release of accommodation not/ find any error in the judgment of of which appellant was tenant. The learned: single Judge allowing the writ release application was rejected by Rent petition. There is one more reason due to Control and Eviction Officer vide his pwhich tenant is not entitled for any t indulgence in this appeal, i.e., according order dated 13th January, 1987. A t to undertaking as given in the affidavit, revision was filed against the above order h the tenant was liable to vacate the which too was dismissed vide order dated accommodation within one year from the 20th November, 1990. Father of date of disposal of the writ petition i.e. 3 All] Anand Mohan Sharma V. Niranjan Lal Gupta and others 771 respondent no. 1, late Sri Kundan Lal, by filing writ petition no. 35613 of 2002. filed writ petition no. 3351 of 1991 The aforesaid writ petition has been challenging both the orders dated 13th allowed by learned single Judge vide his January, 1987 and 20th November, 1990. judgment dated 23rd October, 2002 Kundan Lal died during pendency of the against which present special appealn has writ petition and in his place respondent been filed. At the time of passingi of no. 1 was substituted as his heir. In writ judgment dated 23rd October, 2002,. the petition no. 3351 of 1991 a joint affidavit appellant, who was present inic the Court, was filed by the appellant as well as offered to vacate the buildingn provided he respondent No. 1 to the effect that is granted reasonable time.. Learned single appellant is ready to vacate the disputed Judge while passing thet judgment dated accommodation within a period of one 23rd October, 2002 rgranted three months year from the date of filing the time to the appellantu to vacate the compromise. Respondent no. 1 agreed to building subject to condition that allow time to vacate. On the basis of appellant submito an undertaking in aforesaid affidavit filed by appellant and writing beforec the Rent Control and respondent no. 1 and other heirs of Evictionh Officer, Allahabad within three Kundan Lal, this Court passed an order days. Counsel for the respondents has dated 16th August, 1996 dismissing the statedig that in pursuance of the order of writ petition in view of the facts stated in this Court dated 23rd October, 2002, the the application filed on 15.5.1995. happellant has submitted a written Appellant filed an application in the d undertaking before the District aforesaid writ petition for recall of thea Magistrate, Allahabad on 25th October, order dated 16th August, 1996 which was 2002 which fact has not been denied by dismissed on 1st August, 2001,b counsel for the appellant. respondent no. 1 filed an applicationa before the Rent Control and Eviction 4. The counsel for the respondents Officer for execution of the orderh passed has raised a preliminary objection by by this Court which accordingla to him, submitting that appellant having amounted to an order lof release of the undertaken in writ petition no. 35613 of building in favour ofa the land lord. The 2002 to vacate the premises within three Rent Control and. Eviction Officer months and having also filed a written recommended for issuance of Form-C. undertaking before the District Form C was issuedw but thereafter Form-D Magistrate, Allahabad on 25th October, was not issued. Respondent No. 1 filed 2002, is not entitled to appeal against the writ petitionw no. 9836 of 2002 which was said judgment of learned single Judge. disposedw of on 7th March, 2002 directing The learned counsel for the respondents the District/ Magistrate to pass appropriate contended that the appellant having given order/ in accordance with law on the undertaking before learned single Judge recommendation: of the Rent Control and to vacate the premises, he is not entitled tpEviction Officer dated 22nd December, to file this appeal and this appeal is not t 2001. The District Magistrate passed an liable to be entertained on this ground order dated 21st May, 2002 refusing to alone. h issue Form-D. The order dated 21st May, 2002 was challenged by respondent no. 1 772 INDIAN LAW REPORTS ALLAHABAD SERIES [2002 5. Sri Ravi Kant, Senior Advocate, single Judge in which undertaking was appearing for the appellant, refuting the given by the appellant to vacate the above submissions, submitted that special premises within three months. Although appeal is fully maintainable and Sri Ravi Kant, counsel for appellant undertaking given by the appellant was in submitted that undertaking whichn has pursuance of the direction of this Court been filed by the appellant beforei the dated 23rd October, 2002 and the said District Magistrate on 25th October,. 2002 undertaking cannot preclude the appellant is not an undertaking by the iappellantc on from preferring this appeal. He placed his own volition but is nan undertaking reliance on apex court judgment in (2000) under the direction of .this Court and it 5SCC 44, Jagdish Lal vs. Parma Nand. cannot be treated to tbe an undertaking, but the fact remainsr that it was the 6. Sri Ravi Kant while making his appellant who uoffered to vacate the submission on merits of the appeal, raised premises provided he is granted following contentions: reasonable timeo to vacate the building, in view of cthe aforesaid facts, we are (i) In earlier writ petition no. 3351 of proceedingh on the premise that appellant 1991 no undertaking on behalf of the gave an undertaking to vacate the appellant can be read in the affidavit filed premisesig within three months in in the Court. He contended that the pursuance of the judgment dated 23rd statement in paragraph 10 of the affidavit hOctober, 2002. as extracted by learned single Judge in his d judgment, was subject to extension aof 8. The word 'undertaking' has been certain facilities by the landlord and the defined in P. Ramanatha Aiyar, the Law landlord having not extended bthe Lexicon (Second Edition) in following facilities, the appellant immediatelya words : moved an application for recall of the said order, hence there was no undertakingh on "Undertaking is a promise, his behalf to vacate thel apremises and engagement or stipulation. The term is learned single Judge committedl error in frequently used in the special sense of a reading the affidavita of the appellant as promise given in the court of legal undertaking. proceedings, by a party or his counsel, generally as a condition of obtaining (ii) The Districtw Magistrate has rightly some concession from the court on refused to issue Form-D for eviction of opposite party." the appellantw since there was no order of releasew in favour of respondent no. 1. 9. The apex court in AIR 1979 SC / 1528, Babu Ram Gupta vs. Sudhir /7. We have heard counsel for both Bhasin and another considered as to the: parties and perused the record. Before what amounted to undertaking. In tpproceeding with the merit of the appeal, it paragraph-7 of the judgment, the apex t is necessary to consider the preliminary Court laid down that a person appearing objection raised by counsel for respondent before the Court can give an undertaking h no.

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