High Court
Case Details
1 Court No. - 6 Case :- WRIT - A No. - 3095 of 2022 Petitioner :- Rakesh Rathor Respondent :- Gajanand Maheshwari Counsel for Petitioner :- Puneet Bhadauria Counsel for Respondent :- Sanjeev Singh, Arvind Kumar Srivastava Hon'ble J.J. Munir,J. 1. This matter was mentioned in the morning with a prayer to be taken up out of turn, indicating the urgency that the respondent-landlord is suffering prejudice on account of interim order made against him, inasmuch as the proceedings of the appeal have been virtually stayed as also the eviction order passed by the Prescribed Authority. This matter is, accordingly, taken up. 2. 3. Admit.
Legal Reasoning
In a later Division Bench decision of this Court in Radha Rani Cold Storage Pvt. Ltd. v. U.P. State Cold Storage Tribunal and others, 2009 (27) LCD 1391, their Lordships following the principles in Mool Chand Yadav (supra) and Daroga (supra) held: “6. Hon’ble the Apex Court in the case of Mool Chand Yadav and another v. Raja Buland Sugar Co. Ltd. Rampur and others, (1982) 3 SCC 484, has observed that during the judicial approach requires that during the pendency of the appeal the operation of an order having serious civil consequences must be suspended, more so when appeal is admitted. The aforesaid proposition of law has been reiterated by this Court in the case of Daroga and another v. Commissioner, Gorakhpur Division, Gorakhpur, 1996 (14) LCD 540, wherein this Court has held that it is established principle of law that during the pendency of appeal where right of parties are yet to be adjudicated, the interim orders may be passed in order to preserve the situation.” 11. In view of the aforesaid consistent principle regarding suspension of orders pending appeal that have drastic civil consequences, the remarks of the learned District Judge that the tenant-petitioner was not ready to argue the appeal, but was pressing his stay application disentitling him to interim relief do not appear to be sustainable. 12. In this view of the matter, the order impugned passed by the District Judge rejecting the stay application in the pending Rent Control Appeal against the order of eviction cannot be sustained. 13. The petition succeeds and stands allowed. The impugned order dated 14.02.2022 passed by the District Judge, Etawah is set aside and reversed. There shall be a stay of eviction of the petitioner pending appeal before the learned District Judge, Etawah. However, the learned District Judge 5 shall expedite proceedings of the appeal and decide the same within a period of three months of the date of receipt of a copy of this order. 14. Let a copy of this order be communicated to the learned District Judge, Etawah by the Registrar (Compliance). Order Date :- 23.5.2022 I. Batabyal/ Anoop Digitally signed by ISHAN BATABYAL Date: 2022.05.27 19:30:40 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
Mr. Sanjeev Singh, learned Counsel for the respondent, waives his right to file a return. 4. 5. Heard forthwith. Heard Mr. Puneet Bhadauria, learned Counsel for the petitioner and Mr. Sanjeev Singh along with Mr. Arvind Kumar Srivastava, learned Counsel for the respondent. 6. This petition is directed against an order dated 14.02.2022 passed by the learned District Judge, Etawah in pending P.A. Appeal No.4 of 2022 preferred by the tenant- petitioner from an order of eviction passed by the Prescribed Authority dated 24.12.2021 in P.A. Case No.13 of 2009, under Section 21(1)(a) of U.P. Act No.13 of 1972 (for short, ‘the Act’). 2 7. It is not in dispute that the Prescribed Authority/ Civil Judge (Sr. Div.), Etawah vide her order dated 24.12.2021 passed in P.A. Case No.13 of 2009, under Section 21(1)(a) of the Act has ordered eviction of the tenant-petitioner from the demised shop. The said order has been challenged in appeal by the tenant-petitioner under Section 22 of the Act. The appeal has been admitted to hearing by the District Judge, Etawah, sitting as the Appellate Authority, vide order 31.01.2022. An application for stay of operation of the order of eviction had also been made by the tenant-petitioner in the pending appeal. The learned District Judge, Etawah by means of the order impugned dated 14.02.2022 has rejected the stay application while the appeal is pending hearing. 8. It is a salutary principle of law that pending hearing of a first appeal on facts and law against an order that has drastic civil consequences, such as dispossession, eviction or demolition, the operation of the order of the Authority of first instance ought to be suspended. The learned Judge in passing the order impugned has not borne in mind the aforesaid principle of the law. The principle is adumbrated in Mool Chand Yadav and another v. Raza Buland Sugar Company Limited, (1982) 3 SCC 484, where it has been observed: “4. ……………… We are not inclined to examine any contention on merits at present, but we would like to take notice of the emerging situation if the operation of the order under appeal is not suspended during the pendency of the appeal. If the FAFO is allowed obviously Mool Chand Yadav would be entitled to continue in possession. Now, if the order is not suspended in order to avoid any action in contempt pending the appeal, Mool Chand Yadav would have to vacate the room and hand over the possession to the respondents in obedience to the Court's order. We are in full agreement with Mr Manoj Swarup, learned Advocate for respondents, that the Court's order cannot be flouted and even a covert disrespect to Court's 3 order cannot be tolerated. But if orders are challenged and the appeals are pending, one cannot permit a swinging pendulum continuously taking place during the pendency of the appeal. Mr Manoj Swarup may be wholly right in submitting that there is intentional flouting of the Court's order. We are not interdicting that finding. But judicial approach requires that during the pendency of the appeal the operation of an order having serious civil consequences must be suspended. More so when appeal is admitted. Previous history of litigation cannot be overlooked. And it is not seriously disputed that the whole of the building, Hari Bhawan, except one room in dispute is in possession of the Corporation. We accordingly suspend the operation of the Order dated August 6, 1982 directing the appellants to hand over the possession of the room to the respondents till the disposal of the first appeal against that order pending in the High Court of Allahabad……...” (emphasis by Court) 9. The aforesaid principle was followed by this Court in Daroga and another v. Commissioner, Gorakhpur and others, 1996 SCC OnLine All 110, where it was held: “6. It is established principle of law that during the pendency of appeal where right of the parties are yet to be adjudicated, the interim orders may be passed in order to preserve the situation so as not to create unnecessary complication in the matter of alteration of the position inasmuch as if possession is taken during the pendency of appeal and ultimately the appeal succeeds in that event the possession is to be restored. “One can not permit a swinging pendulam continuously taking place during the pendency of appeal” is the observation made in the case of Mool Chand Yadav v. Raza Buland Sugar Company Limited, [1983 (9) ALR 403.] by the apex court. It was observed in the said case that previous history of the case is to be looked into for this purpose. Inasmuch as if the possession is already taken and/or the land is allotted to some one else, then such a position can not be reversed. The position obtained on the date of hearing of the application is a relevant factor to be taken into consideration.” 4 10.