Wadood Ahmad Addl. District Judge/Ftc Pratapgarh And 2 Others v. Mohiuddin Khan

#1. Heard Shri Mohiuddin Khan, learned counsel for the applicant and Ms. Bhanu Priya Singh, learned counsel appearing for the private respondent no.3.

#2. The instant application has been moved seeking recall of the order dated 19.08.2025 whereby the instant writ petition was dismissed.

#3. Submission of the learned counsel for the applicant is that the said order is ex parte as it was passed in absence of the petitioner and the application for recall had been moved immediately after three days. The said ground mentioned in paragraphs 3 and 4 of the affidavit constitutes sufficient cause to recall the order and the matter may be heard on merits.

#4. The aforesaid submission is opposed by the counsel for the private respondent no.3 on the premise that the order of dismissal is on merits and therefore, the recall application is not maintainable rather if the petitioner so opts he may file a review.

#5. The aforesaid contention has been refuted by the counsel for the applicant and it is submitted that from the bare perusal of the order dated 19.08.2025, it would reveal that the petitioner was not present. Even though it has been noticed by the Court that the orders passed by the two courts do not call for any interference and the writ petition lacks merit but nevertheless since there is no consideration of the merit, merely by writing word the petition lacks merit will not make it an order passed on merits. For the said reason, it would amount to an order dismissing the writ petition in default for which recall application is maintainable and review is not the appropriate remedy. He has relied upon a Division Bench of this Court in Special Appeal (D) No.267 of 2025, Nikhil Kumar 2 WRIA No. 5036 of 2024 Singh Vs. State of U.P. & others, Neutral Citation No.2015:AHC- LKO:10599DB wherein this question was the matter in issue and thereafter the Division Bench has recorded that merely by writing few words regarding the merits of the matter would not make it an order of merits especially once it has been noticed that the petitioner was not present. It is in the aforesaid circumstances, it is urged that the application for recall is maintainable and the same deserves to be allowed.

#6. The Court has considered the rival submissions and also perused the material on record.

#7. As far as the issue regarding maintainability of the application is concerned, suffice to notice that the order passed by the Co-ordinate Bench dismissing the writ petition on 19.08.2025 is a very short order which, for the sake of reference, is being reproduced hereinafter:- "1. No one appears to press the petitioner even in the revised call.

#2. Considering the finding of facts which have been recorded in both the orders impugned, no interference is called for.

#3. The writ petition lacks merit and is dismissed."

#8. From the perusal of the aforesaid order, it would indicate that admittedly the petitioner/the counsel was not present when the case was called out. It would also reveal that the Court has just mentioned that the findings of fact as recorded requires no interference. However, there is no mention regarding any of the pleas which have been raised. The Division Bench of this Court in Nikhil Kumar Singh (supra) and has made the following observations which are being reproduced hereinafter for ready reference:- "We find merit in the submission of the learned counsel for the appellant that once the learned Single Judge had held that the petition was liable to be dismissed in the absence of the appellant and his Advocate, there was no occasion for the learned Single Judge to make any observation on merits of the case. The observations in paragraph 3 of the order dated 14 August 2014 cannot even be construed, reasonably speaking, to be observations on merits. Beyond stating that having gone through the pleadings, grounds and reliefs, no case was made out for interference by the Court, there is no discussion on the merits of the case nor is there any discussion on facts or the legal submissions which were on the record. In this view of the matter, we are of the view that the learned Single Judge has 3 WRIA No. 5036 of 2024 taken a rather technical view of the matter by declining to entertain the application for restoration or recall on the ground that it was not maintainable. Properly construed, the order dated 14 August 2014 is an order of dismissal in the absence of the counsel for the appellant and hence the application for restoration/recall was maintainable."

#9. Considering the dictum of the Division Bench of this Court and applying it to the facts of the instant case, it is clear that the order dated 19.08.2025 was an ex parte order and there is no reference to any merit. Merely to record that the writ petition lacks merit will not bring it within the ambit of an order passed on merits. The dictum of the Division Bench in Nikhil Kumar Singh (Supra) squarely applies to the facts of this case and accordingly the application has been considered as one for recall. The ground shown is found sufficient. Accordingly, the application for recall is allowed. The writ petition is restored to its original number. On merits

#10. The Court has thereafter proceeded to hear the learned counsel for the parties on merits.

#11. Shri Mohiuddin Khan, learned counsel for the petitioner has advanced his submission attacking the two orders under challenge dated 17.11.2022 passed in SCC Suit No.2 of 1998 decreeing the suit which was challenged in SCC Revision No.1 of 2023 which has been dismissed affirming the judgment and decree of the trial court.

#12. Shri Khan, learned counsel for the petitioner has urged that the instant matter has a chequred history and this is the third round of litigation before this Court. It is urged that the petitioner has been a tenant of the disputed shop in question since 1984. The suit for arrears of rent and ejectment was instituted by the private respondent no.3 on the premise that the disputed shop in question was a new construction upon which the provision of the Uttar Pradesh Urgan Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the U.P. Act No.13 of 1972) were not applicable and that the petitioner was in arrears of rent.

#13. It is also pointed out that the landlord had pleaded that the rate of rent was Rs.500/- which was also incorrect and for the aforesaid reason the suit initially came to be decreed and it was challenged by the present petitioner in SCC Revisiion which was dismissed and it had, for the first time, come up before this Court by means of Writ Petition No.10 (R/C) of 2005.

#14. A Co-ordinate Bench of this Court while allowed the writ petition 4 WRIA No. 5036 of 2024 vide its judgment dated 06.11.2006 considered the issue before it and found that in so far as the service of notice under Section 106 of the Transfer for Property Act is concerned, the same was duly served, hence the said finding had been confirmed. The High Court in its judgment dated 06.11.2006 held that the trial court as well as revisional court had not appropriately recorded findings in so far as the applicability of U.P. Act 13 of 1972 is concerned and even the finding on the rate of rent was not based on proper appreciation of evidence. Hence, the findings on the two issues were set aside and the matter was remanded to the Revisional Court for a decision afresh.

#15. The revisional Court before whom the matter was remanded by the High Court vide its order dated 06.11.2006, one again after affording an opportunity of hearing to the parties affirmed the findings which had earlier been recorded and it was again reiterated that the rate of rent was Rs.500/- per month as well as the fact that the U.P. Act 13 of 1972 were not applicable to the tenanted premises in question.

#16. In the aforesaid backdrop, the petitioner once again approached the High Court by means of Writ Petition No.34 (R/C) of 2008. In this second round of litigation the petitioner succeeded and the judgment passed by the revisional court was again set aside and the matter was once again remanded to the revisional court to decide the matter afresh in light of the earlier order of remand passed by the High Court vide judgment dated 06.11.2006.

#17. In this backdrop, this time the revisional court vide its judgment dated 30.09.2021 allowed the revision and set aside the order passed by the trial court and remanded the matter to consider the issues regarding applicability of the U.P. Act 13 of 1972 as well as the rate of rent in accordance with law after noticing the evidence on record.

#18. At this stage, the matter was now before the trial court who after affording an opportunity of hearing to the parties noticed the evidence led and recorded a finding that the rate of rent as agreed between the parties was Rs.100/- per month. It also considered the issue regarding the applicability of U.P. Act 13 of 1972 and found that it was a new construction, hence the provisions of the Act of 1972 were not applicable. It noticed that since the issue regarding service of notice of demand of arrears of rent and ejectment had already been served which had been affirmed by the High Court in its order dated 06.11.2006 hence, that issue could not be reopened. It also noticed that once the premises were not governed by the U.P. Act 13 of 1972 and the notice had already been served, accordingly a decree of eviction and arrears of rent were passed.

#19. This judgment and decree passed by the trial court on 17.11.2022 5 WRIA No. 5036 of 2024 became the subject matter of challenge in a SCC revision preferred by the petitioner bearing No.1 of 2023. The revisional court after hearing the parties has affirmed the findings recorded by the trial court on both the issues regarding the rate of rent, arrears as well as the applicability of the U.P. Act 13 of 1972, as a consequence, the judgment and decree passed by the trial court dated 17.11.2022 was affirmed.

#20. Being aggrieved against the two judgments, the petitioner has approached this Court in third round of litigation and it has primarily been urged that the finding recorded by the trial court treating the premises to be a new construction is patently erroneous and is contrary to the evidence led by the petitioner which has not been noticed especially paper No.Ga.11 and 12, filed before the trial court

#21. It has also been urged that the trial court has also misread the evidence on the finding of rate of rent and in the given circumstances where the occupation of the petitioner was continuously present including in the year 1984 onwards, hence the building if at all had been reconstructed prior to 1984 and for the said reason the finding recorded that it was a new construction is patently erroneous.

#22. It has further been urged that the revisional court in exercise of power under Section 25 of the Provincial Small Cause Court Act is not permitted to reappraise the evidence or substitute its own findings and this is the basic error which have been committed by the revisional court despite the fact that in the second round of litigation, the High Court while setting aside the judgment of the revisional court by means of order dated 08.10.2022 has noticed this aspect of the matter. It is, thus, submitted that both the orders passed by the trial court and the revisional court are erroneous and cannot sustain judicial scrutiny, consequently, deserves to be set aside after allowing the writ petition.

#23. Learned counsel for the private respondent no.3 while refuting the aforesaid submissions has submitted that both the trial court as well as the revisional court have recorded findings of fact regarding the date of construction and it has been held that the premises was a new construction upon which the provisions of the U.P. Act 13 of 1972 is not attracted. In this view of the matter, where the tenancy is not disputed nor the relationship of landlord and tenant is disputed coupled with the fact that the notice issued for terminating the tenancy has been served and this finding was affirmed by the High Court in the first round of litigation in its judgment dated 06.11.2006, hence, there was no way but to decree the suit which has rightly been done by the trial court.

#24. It is also urged that the revisional court has not overstepped its jurisdiction, it has merely reiterated the findings of the trial court which is 6 WRIA No. 5036 of 2024 found to be in accordance with law, hence it is not as a any findings have been substituted by the revisional court or the revisional court while recording the fresh findings have re-appreciated the evidence. The averments/submissions advanced by the learned counsel for the petitioner are not correct. The judgment and decree does not require any interference. Accordingly, the writ petition deserves to be dismissed

#25. The Court has heard the learned counsel for the parties and also perused the material on record.

#26. At the outset it may be noted that a suit for arrears of rent and eviction can be defected, if the defendant is able to prove: (i) there is no relationship of landlord and tenant between the parties; (ii) The tenancy is not properly determined either for want of valid notice or for want of service of the said notice; (iii) The ground of arrears of rent is not out and that the defendant is saved by any provisions of the State Rent Act.

#27. Apparently, the relationship of landlord and tenant is admitted. As far as the issue regarding service of notice under Section 106 of the Transfer of Property Act is concerned, needless to say the same was affirmed by the High Court in its judgment dated 06.11.2006 passed in Writ Petition No.10 (R/C) of 2005 and the relevant portion thereof is being reproduced hereinafter for the ease of reference.

#28. In so far as the issue of rate of rent is concerned, suffice to state that it is admitted case of the petitioner that the rate of rent was Rs.100/- per month the demand made by the landlord alleging Rs.500/- as monthly rent. Since the trial court in its judgment dated 17.11.2022 has upheld the contention of the tenant holding rate of rent of Rs.100/- per month accordingly the petitioner cannot have any grievance against the said part of the judgment which has been affirmed by the revisional court and the landlord did not assail the said findings hence, this Court is not entering into the issue regarding the rate of rent.

#29. Having said so, now the only issue that actually remains to be determined is whether the finding recorded by the two courts on the applicability of the Act is just and appropriate or not?

#30. Considering if the issue relating to the applicability of the Act of 1972, in this regard it will be appropriate to notice Section 2(2) and the explanation appended thereto in terms of the U.P. Act 13 of 1972 which reads as under:- "2. Exemptions from operations of the Act.- (1) *** 7 WRIA No. 5036 of 2024 (2)[Except as provided in sub-section (5) of section 12, sub- section (1-A) if section 21, sub-section (2) of section 24, section 24-A, 24-B, 24-C or sub-section (3) of section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed]: [Provided that where any building is constructed substantially out of funds obtained by way of loan or advance from the State Government or the Life Insurance Corporation of India or a bank or a co-operative society or the Uttar Pradesh Avas Evam Vikas Parishad, and the period of repayment of such loan or advance exceeds the aforesaid period of ten years then the reference in this subsection to the period of ten years shall be deemed to be a reference to the period of fifteen years or the period ending with the date of actual repayment of such loan or advance (including interest), whichever is shorter]: [Provided further that where construction of a building is completed on or after April 26, 1985 then the reference in this sub-section to the period of ten years shall be deemed to be a reference to a period of [forty years] from the date on which its construction is completed.] Explanation- [I] – [For the purposes of this section] -- (a) the construction of a building shall be deemed to have been completed for the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time: Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the land lord and one or more tenants or by different tenants; (b) "construction" includes any new construction in place of an existing building which has been wholly or substantially demolished ; (c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition. [Explanation-II-- The expression ‘bank’ means – 8 WRIA No. 5036 of 2024 (i) a banking company, as defined in the Banking Regulation Act, 1949; (ii) the State Bank of India constituted under the State Bank of India Act, 1955; (iii) a subsidiary Bank. as defined in the State Bank if India (Subsidiary Banks) Act; 1959; (iv) a corresponding new bank constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970; (v) a Financing Bank or Central Bank (as defined in the Uttar Pradesh Co-operative Societies Act, 1965), not being a Land Development Bank; and (vi) an other financial institution notified by the State Government in the Gazette as a bank for the purpose of this Act. Explanation-III-- A building shall be deemed to be constructed substantially out of funds obtained from sources mentioned in the proviso, if the funds obtained from one or more of such sources account for more than one-half of the cost of construction.]"

#31. Having considered the aforesaid provision, it would indicate that it provides for a deeming provision that is to say that in case if the date of occupation of the building is prior to the date of first assessment by the Municipal Authority, then in accordance with the deeming provision, it would be the date of first assessment which would prevail, to determine the date of completion whether it is prior to 26.04.1985 or post that date.

#32. It is precisely, this aspect of the matter which has been considered both by the trial court as well as the revisional court while returning a finding regarding applicability of the Act.

#33. In so far as the submission advanced by the learned counsel for the petitioner is concerned, contention is that the documents bearing paper No.Ga11 and 12 were not considered. Even though the said documents have not been brought on record of this writ petition but from the perusal of the material on record, it indicates that both the trial court as well as the revisional court have taken note of the said document. It has noticed that the first assessment by the Municipal Authority is of the year 1985. Even if at all the premises was given in occupation to the petitioner but that date of occupation would pale into insignificance since the deeming provision of the explanation appended to Section 2(2) of the U.P. Act 13 of 1972 is attracted. It is for the aforesaid reason that the trial court as well as the revisional court did not find favour with the contention of the 9 WRIA No. 5036 of 2024 learned counsel for the petitioner.

#34. Having considered the aforesaid as well as from the perusal of the two impugned orders, this Court finds that it is not the case where the said documents have not been noticed or considered. The best case scenario as set out by the learned counsel for the petitioner, if taken at its face value would be that, the occupation of the petitioner would have been prior to the date of first assessment. If that is considered then it is not disputed that the first assessment of the new building made by the Municipal Authority of its year 1985. Accordingly, as per the explanation as referred to hereinabove in Section 2(2) of the Act 13 of 1972. Holiday period for which the building is exempt would start from 1985 and as a necessary corollary the building would be treated to be new construction and the provision of U.P. Act 13 of 1972 would not be applicable. It is in this backdrop that the trial court has recorded its finding which it cannot be said to be perverse or has been recorded by ignoring any material evidence as per law. It could not be demonstrated by evidence and material on record as to how the finding recorded is bad.

#35. A feeble submission was advanced by the learned counsel for the petitioner that he had been in occupation of the shop in question since long. Even while the other tenants had vacated their part of the building to facilitate the raising of the new construction but in so far as the petitioner is concerned, he continued in occupation of the same shop. On the basis thereof, it is urged that as far as the present petitioner is concerned, there was no break in his tenancy and even though he was shifted into the new premises after its reconstruction but the fact remains that it was old tenancy which continued and as far as the petitioner is concerned, he would be entitled to the benefit of the provision of the U.P. Act 13 of 1972 and his tenancy could not have been terminated nor he could have been evicted treating premises to be as new construction.

#36. If the aforesaid plea is considered, it would be found that the necessary pleading are not there nor any clear foundation for the same has been laid in the written statement. A specific query was put to the counsel for the petitioner to point out any evidence which was led by the petitioner in this regard, to which nothing has been pointed out nor it could be demonstrated that this issue was actually before the trial court or the revisional court but it refused to adjudicate or consider the same.

#37. In view thereof, this Court finds that there was no dispute that new construction was raised. There is no dispute that the newly raised construction was assessed by the Municipal Authority post 26.04.1985. The petitioner failed to establishe that his old tenancy continued to subsist throughout. Even if the date of occupation is treated to be of the year 1984 but in light of the final assessment of the new building being post 10 WRIA No. 5036 of 2024 1985 would bring it within the scope of exemption provided under Section 2(2) of the U.P.Act of 1972. Moreover, these findings are of fact and this Court is not inclined to interfere as no illegality could be pointed out.

#38. In view of the aforesaid, this Court is of the clear view that the judgment and decree passed by the trial court dated 17.11.2022 passed in SCC Suit No.20 of 1998 which has been affirmed by the revisional court in its judgment dated 09.04.2024 passed in SCC Revision No.1 of 2023 does not suffer from any palpable error of law which may persuade this Court to interfere in its writ jurisdiction. Consequently, the petition is dismissed. There shall be no order as to costs. January 14, 2026 (Jaspreet Singh,J.)