D.P.Kesari & Anr vs Board Of Dir.Of Allahabad Agri.Inst

landlord- respondent No.3 and the suit of the landlord 2

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]

New Delhi; ..........................J. February 06, 2009. [H.L.Dattu]