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

O R D E R

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

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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

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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

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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

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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

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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]  

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