Om Prakash v. District Judge

K.C Agarwal, J.:— This is a tenant's writ petition preferred against a judgment of the District Judge, Mathura, dated May 26, 1978, dismissing an appeal filed by him under Section 22 of U.P Act XIII of 1972.

2. The dispute in the present case is with regard to a shop of which Ghasi Ram, respondent 3, was the owner. The shop had been let out to the petitioner on a monthly rent of Rs. 15/-.

3. An application under Section 21 of U.P Act XIII of 1972 was filed by Respondent 3 for release of the premises on two grounds. Out of the two grounds, one was that the shop was needed for the personal use of his son Shiv Kumar who was 21 years of age and wanted to settle him in the business of his own therein. The landlord claimed that he had been vending Chat Pakauri on a moving shop, and that his son wanted to start the said business in the shop itself.

4. The landlord also alleged that the shop was in a dilapidated condition and required to be demolished and reconstructed. The application was resisted by the tenant. He denied that the need of the land lord was bona fide.

5. To support the allegations made in the application under Section 21, the landlord filed his own affidavit, and the affidavits of Dino and Tullan. Against these affidavits, the petitioner-tenant filed his own affidavit.

6. The Prescribed Authority allowed the application, and the appeal preferred against the said judgment was also dismissed. Hence, this writ.

7. The first submission advanced by the learned counsel for the petitioner was that since the appeal was decided without affording any opportunity of hearing to the petitioner, the judgment given in appeal was illegal and was liable to be quashed. Counsel invited my attention to Annexure ‘D’ which is a copy of the application filed by the petitioner before the District Judge praying that as his counsel Sri G.C Bhatnagar was not well, he could not attend the court on that date and hence Sri G.C Bhatnagar was unable to advance the argument in the appeal on behalf of the petitioner. It, however, appears that the petitioner was also represented through another counsel, and that the said counsel had made arguments before the appellate authority. The appellate authority while rejecting the application for adjournment of Sri G.C Bhatnagar, observed that the argument in the appeal had already been heard. The grievance of the petitioner, therefore, that he had not been heard, was unjustified. A party may have a right to be heard in an appeal, but he cannot claim the right to be heard by a particular counsel. If another counsel appeared on hehalf of the petitioner and advanced the argument, the contention that since Sri G.C Bhatnagar had not been heard the judgment given in appeal was illegal, cannot be accepted. Moreover, the copy of the written argument, dated 13.1.1978, filed as Annexure ‘G’ to the writ petition, indicates that after hearing of the case was concluded on 9.1.1978, Sri G.C Bhatnagar submitted his argument. That being so, the first point falls to the ground.

8. The second submission was that the petitioner had made an application for cross-examining the two witnesses, namely, Dino and Tullan, whose affidavits had been filed on behalf of the landlords, and since they had not been brought in the witness box for examination by the petitioner, the two courts below were in error in placing reliance on the affidavits of these persons. A copy of the application filed by the petitioner has been annexed as Annexure ‘A’ to the writ petition. It shows that the petitioner did not make any prayer for cross-examining the two witnesses. The prayer made only was that the affidavits of these two persons were forged on the ground that they had not actually sworn them. This was not accepted by the Prescribed Authority, if the petitioner wanted to cross-examine these two persons, he should have made a proper application for the said purpose. Having not done so, the petitioner's grievance is not justified.

9. The third submission was that the petitioner had not been given opportunity to adduce evidence in support of his case. Similar argument was made before the appellate authority who found that the grievance of the petitioner of not having been given opportunity to adduce evidence, was unfounded. I have no reason to differ from him.

10. For these reasons, the writ petition fails and is dismissed with costs payable by the petitioner to Respondent No. 3. The stay order is discharged.