D.P.Kesari & ANR.
Vs. Board of Dir. of Allahabad Agri.Inst. [2009] INSC 228 (6 February 2009)
Judgment
NON REPORTABLE IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.767 OF 2009
[Arising out of SLP{C] No.48 of 2009] D.P.Kesari & Anr. ... Appellants
VERSUS The Board of Director of Allahabad Agricultural Institute ...Respondent
ORDER
1.
Leave
granted.
2.
This
appeal is directed against the final judgment and order dated 23rd of October,
2008 passed by the High Court of Judicature at Allahabad in Writ Petition
No.5158 of 1989. By the impugned final judgment, the High Court had allowed the
writ petition filed by the landlord- respondent No.3 and the suit of the
landlord for eviction and for recovery of arrears of rent was decreed.
3.
The
writ petition arose in the following manner :- A suit was filed by the
landlord-respondent before a learned Judge of the Small Causes Court at
Allahabad for eviction of the appellants and also for arrears of rent, inter
alia, on the ground that the appellant No.1 was a defaulter in payment of rent
in respect of No.39 B, Allahabad Agricultural Institute, Naini (hereinafter
referred to as the `suit premises') and in view of Section 2(1)(b) read with
Section 3(q) of the U.P. Urban Buildings Regulation of Letting, Rent and
Eviction Act, 1972 (in short the `U.P. Act'), the appellant No.1 was not
entitled to occupy the suit premises after termination of his employment. The
learned Judge of the Small Causes Court came to a finding that the provision of
the U.P. Act were applicable to the suit premises and further the suit premises
was not allotted to appellant No.1 as a part of contract of his employment and
that there was no default in payment of rent. It was also held by the Small
Causes Court that the tenancy was not 3 validly terminated. Accordingly, the
suit was dismissed on the aforesaid grounds. Feeling aggrieved, the landlord-
respondent preferred a revision case before the District Judge, Allahabad. By
an order dated 25th of January, 1989, the said revision case was allowed and
the matter was remitted back to the trial court to decide the case afresh
stating that the finding was not recorded on a proper appraisal of the entire
evidence on record and accordingly the learned Judge of the Small Causes Court
had acted illegally and with material irregularity in the exercise of his
jurisdiction. Against the aforesaid order of remand passed by the revisional
court, the appellants filed a writ petition challenging the aforesaid order of
remand. Before the High Court, it is an admitted position that the order of
remand was challenged at the instance of the appellants. The High Court by the
impugned order had set aside the order of the revisional court and allowed the
eviction petition by passing a final order in the following manner :-
"Accordingly, writ petition is disposed of.
Revision filed by
landlord respondent No.3 is allowed. Judgment and decree passed by the 4 trial
court is set aside. Suit of the plaintiff for eviction and for recovery of
arrears of rent is decreed."
4.
It
is this order which was challenged by the appellants by way of a special leave
petition which on grant of leave was heard in presence of the learned counsel
for the parties.
5.
In
our view, the judgment of the High Court needs to be set aside on a very short
point. It is an admitted position that there was no order of eviction either
passed by the trial court or by the revisional court. In fact the trial court
by its final order had rejected the application for eviction against which
revision was moved which set aside the said order and directed remand on the
ground stated in the said order, therefore, the question of decreeing or
directing the eviction of the appellants in the writ petition filed by the
tenants could not arise at all. It is also an admitted position, that the 5
revisional court on the revisional application remanded the matter to the trial
court for fresh decision. Feeling aggrieved by the said decision of the
revisional court, the appellants- tenants had filed a writ petition. In such a
writ petition, it was not open to the High Court to direct the eviction of the
appellants when the landlord-respondent had not moved against the order of
remand and secondly there was no order of eviction passed either by the trial
court or by the revisional court.
In our view, this is
not permissible. Since there was no order of eviction and when admittedly the
tenants had moved a writ petition against an order of remand passed by the
revisional court, the question of passing a decree or order of eviction on a
writ application, which was filed not by the landlord but by the tenants, could
not arise at all.
That being the
position, we set aside the judgment of the High Court and the matter is
remitted back to the High Court for fresh decision on the question 6 whether
the order of remand passed by the revisional court was justified in the facts
and circumstances of the case.
6.
For
the reasons aforesaid the impugned order is set aside. The appeal is allowed to
the extent indicated above.
The High Court is
requested to decide the writ petition on the question indicated hereinabove at
an early date preferably within four months from the date of supply of a copy
of this order. No order as to costs.
........................J.
[Tarun Chatterjee]
..........................J.
New
Delhi;
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