Smt. Bashiran And Another vs Smt. Harpal Kaur

AFR
HIGH COURT OF JUDICATURE AT ALLAHABAD
MATTERS UNDER ARTICLE 227 No. - 3192 of 2026
Smt. Bashiran and another
…..Petitioner(s)
Versus
Smt. Harpal Kaur
…..Respondent(s)
Counsel for Petitioner(s) : Madhav Jain
Counsel for Respondent(s) : Rajesh Kumar Sharma, Shobh Nath
Court No. - 35
HON'BLE DR. YOGENDRA KUMAR SRIVASTAVA, J.
Heard Shri Madhav Jain, learned counsel for the petitioners and
Shri Shobh Nath, learned counsel for the respondent.
2 . The present petition under Article 227 of the Constitution of India
has been filed assailing the judgment and order dated 03.02.2026 passed
by the Appellate Authority/District Judge, Agra in Rent Control Appeal
No.32 of 2025, whereby the appeal preferred by the petitioners has been
dismissed as not maintainable. The petitioners have also challenged the
order dated 07.02.2025 passed by the Prescribed Authority/Judge, Small
Causes Court, Agra in Misc. Case No. 3 of 2024, rejecting their
application seeking recall of the ex parte release order, as well as the ex
parte judgment and order dated 22.12.2023 passed in P.A. Case No. 16
of 2016, whereby the release application instituted by the respondent-

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landlord under Section 21(1)(a) of U.P. Act No. XIII of 1972 (hereinafter
referred to as "the Act") came to be allowed.
Factual Background   
3. The dispute relates to Shop No.4, forming part of property
bearing No.4/51, situated at Kachahri Road, Baluganj, Agra, which was
admittedly in the tenancy of late Mohammad Shamim at a monthly rent
of Rs.500/-. The respondent-landlord instituted proceedings under
Section 21(1)(a) of the Act seeking release of the disputed premises on
the ground of bona fide requirement, which came to be registered as P.A.
Case No.16 of 2016.
4. The release proceedings were initially contested by the original
tenant by filing a written statement denying the bona fide need and
comparative hardship pleaded by the landlord. In support of the release
application, the respondent-landlord filed documentary evidence,
including a copy of the notice dated 31.07.2015 issued through counsel
to the tenant, a copy of the reply notice dated 28.08.2015 sent on behalf
of the tenant, the service discharge certificate and educational certificates
of her son, a communication issued by the Chief Medical Officer, Agra
regarding payment of honorarium to him, and certain photographs
relating to the premises in question.
5. The case of the respondent-landlord before the Prescribed
Authority was that the disputed shop was bona fide required for
establishment of a clinic for her son, who possessed the requisite
medical qualifications, and that the disputed premises, being situated on
the main road, was eminently suitable for the said purpose. It was further
pleaded that the tenant was carrying on motorcycle repairing and
welding work from another property bearing No. 4/236, Gwalior Road,
Baluganj, Agra, situated at a short distance from the disputed premises
and, therefore, greater comparative hardship would be caused to the
landlord in the event the release application was rejected.
6. During the pendency of the proceedings, the original tenant died
on 15.12.2020. Thereafter, his legal representatives were brought on

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record pursuant to orders passed by the Prescribed Authority, and notices
were directed to be served upon them through registered post. The record
further indicates that thereafter an application bearing Paper No. 23- Ga
came to be filed through counsel on behalf of the substituted legal
representatives seeking permission to contest and pursue the proceedings
after substitution.
7. The aforesaid application came to be rejected by the Prescribed
Authority by an order dated 20.07.2023. While doing so, the Prescribed
Authority also recorded that despite having full knowledge of the
pendency of the proceedings, the substituted legal representatives had
failed to adduce any evidence in support of their defence. Consequently,
by order dated 25.09.2023, their opportunity to lead evidence was
closed. Thereafter, the matter remained pending for final arguments
from 09.10.2023, and detailed submissions were heard on 14.12.2023.
8. Ultimately, by judgment and order dated 22.12.2023, the
Prescribed Authority allowed the release application holding that the
relationship of landlord and tenant stood established between the parties,
that the need set up by the respondent-landlord for establishment of a
clinic for her son was bona fide and genuine, and that the balance of
comparative hardship also tilted in favour of the landlord, particularly in
view of the finding that the tenants had another alternative
accommodation available at property No. 4/236, Gwalior Road,
Baluganj, Agra and had failed to make any effort to search for alternative
accommodation during the pendency of the proceedings.
9. The present petitioners, claiming themselves to be the legal
representatives of the deceased tenant, thereafter instituted proceedings
seeking recall of the aforesaid ex parte judgment and order
dated 22.12.2023, which came to be registered as Misc. Case No.3 of
2024. The recall application, however, came to be rejected by the
Prescribed Authority by order dated 07.02.2025. Aggrieved thereby, the
petitioners preferred Rent Control Appeal No.32 of 2025 before the

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Appellate Authority. The Appellate Authority, by the impugned judgment
and order dated 03.02.2026, dismissed the appeal as not maintainable.
10. It is in the aforesaid factual backdrop that the present petition has
been instituted.
Submissions on behalf of the petitioners
11. Learned counsel appearing for the petitioners submits that the
application seeking recall of the ex parte release order was maintainable
in exercise of the powers conferred upon the Prescribed Authority under
Section 34(1)(g) of U.P. Act No. XIII of 1972 read with Rule 22(b) of
the Rules framed thereunder. It is contended that the recall application
arose directly out of proceedings instituted under Section 21(1)(a) of the
Act and, therefore, formed an integral and inseparable part of the
original release proceedings.
12. Elaborating the aforesaid submission, it is urged that although the
source of power to entertain the recall application may be traceable to
Section 34(1)(g) read with Rule 22(b), the exercise of such power is
nonetheless in continuation of the proceedings under Section 21 of the
Act. According to learned counsel, the recall proceedings are neither
independent nor collateral in nature but constitute a continuation of the
original adjudication concerning the landlord's release application.
13. It is further submitted that rejection of the recall application has
the effect of affirming and perpetuating the ex parte release order dated
22.12.2023, thereby directly affecting the substantive rights of the
petitioners in respect of the tenanted premises. It is, therefore, argued
that such an order cannot be viewed as merely procedural in character
but must be regarded as partaking the character of an order passed under
Section 21 of the Act.
14. On the aforesaid premise, learned counsel contends that Section
22 of the Act deserves to receive a purposive and liberal construction so
as to include within its ambit an order rejecting a recall application
arising out of proceedings under Section 21. Any restrictive

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interpretation, it is submitted, would leave an aggrieved tenant
remediless against an order having serious civil consequences. It is,
accordingly, urged that the Appellate Authority committed manifest error
in dismissing the appeal as not maintainable.
Submissions on behalf of the respondent
15. Per contra , learned counsel appearing for the respondent-landlord
submits that the entire edifice of the petitioners' argument proceeds on a
misconception of the statutory scheme. It is contended that the
petitioners seek to conflate a substantive adjudication under Section 21
of the Act with a procedural order passed in exercise of the ancillary
powers conferred by Section 34.
16. It is submitted that the order dated 07.02.2025 rejecting the recall
application is not an order passed under Section 21 of the Act but one
rendered in exercise of the procedural jurisdiction traceable to Section
34 read with the Rules. Such an order, therefore, falls outside the scope
of Section 22 of the Act, which expressly provides an appellate remedy
only against orders passed under Sections 21 and 24.
17. It is further submitted that the right of appeal is a creature of
statute and can neither be inferred nor expanded by implication. In the
absence of any express statutory provision providing for an appeal
against an order rejecting a recall application, no such appellate remedy
can be recognised by judicial interpretation. According to the
respondent, the legislative intent underlying Section 22 is to confine the
appellate jurisdiction to final adjudications under Sections 21 and 24 and
not to interlocutory or ancillary orders passed during the course of the
proceedings.
18. Learned counsel lastly submits that after the death of the original
tenant, the petitioners were duly substituted and had full knowledge of
the pendency of the proceedings. Despite such knowledge, they failed to
contest the matter, resulting in the ex parte release order dated
22.12.2023. The Prescribed Authority has, while rejecting the recall
application, recorded categorical findings regarding due service and the

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petitioners' knowledge of the proceedings, which are findings of fact
based upon the record. It is, therefore, submitted that the petitioners
cannot be permitted to circumvent the statutory scheme by seeking an
appellate remedy where none exists, nor do the impugned orders disclose
any jurisdictional error warranting interference in exercise of
supervisory jurisdiction under Article 227 of the Constitution.
19. Heard learned counsel for the parties and perused the record.
Questions for determination
20. On the submissions advanced and the material brought on record,
the following questions arise for determination:
20.1 Maintainability of an appeal under Section 22 of U.P. Act No. XIII
of 1972 against an order rejecting an application for recall of an ex parte
release order passed in proceedings under Section 21(1)(a) of the Act.
20.2 Recall of the ex parte release order dated 22.12.2023 on the
grounds of absence of due service or sufficient cause.
Statutory Scheme   
21. The controversy in the present case essentially turns upon the true
scope and interplay of Sections 21, 22 and 34 of U.P. Act No. XIII of
1972, read with the relevant Rules framed thereunder. It is, therefore,
apposite to notice the material statutory provisions before adverting to
the questions formulated above. The relevant provisions read as under:
“Section 21(1)(a) Proceedings for release of building under
occupation of tenant ( 1) The prescribed authority may, on an
application of the landlord in that behalf, order the eviction of a tenant
from the building under tenancy or any specified part thereof if it is
satisfied that any of the following grounds exists; namely:-
(a) that the building is bona fide required either in its existing form or
after demolition and new construction by the landlord for occupation by
himself or any member of his family, or any person for whose benefit it
is held by him, either for residential purposes or for purposes of any
profession, trade or calling, or where the landlord is the trustee of a
public charitable trust, for the objects of the trust.”

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“Section 22 Appeal : Any person aggrieved by an order under section
21 or section 24 may within thirty days from the date of the order prefer
an appeal against it to the District Judge, and in other respects, the
provisions of section 10 shall mutatis mutandis apply in relation to such
appeal .”
“Section 34(1): Powers of District Magistrate, Prescribed Authority
and appellate and revising authorities
(1) The District Magistrate, the prescribed authority or any appellate or
revising authority shall for the purposes of holding any inquiry or hearing
any appeal under this Act have the same powers as are vested in the Civil
Court under the Code of Civil Procedure, 1908, when trying a suit, in
respect of the following matters, namely,-
… … …
… … …
… … …
(g) any other matter which may be prescribed. ”
Rule 22(b) of the U.P. Urban Buildings (Regulation of Letting, Rent
and Eviction) Rules, 1972
“22. Powers under the Code of Civil Procedure, 1908 [Section 34 (1)
(g)- The District Magistrate, the Prescribed Authority or the Appellate or
Revising Authority shall, for the purposes of holding any inquiry or
hearing any appeal or revision under the Act, shall have the same powers
as are vested in the Civil Court under the Code of Civil Procedure, 1908
(Act No. V of 1908), when trying a suit, in respect of the following
matters, namely-
… … …
(b) the power to proceed ex parte and to set aside, for sufficient cause, an
order passed ex parte ;
… … ...”
22. It is also relevant to notice the statutory scheme governing
continuation of proceedings after the death of a party. Section 34(4) of
the Act, read with Rule 25 of the Rules framed thereunder, expressly
contemplates continuation of pending proceedings against the legal heirs

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or legal representatives of a deceased landlord or tenant. The provisions
are as follows:
“Section 34(4) Powers of various authorities and procedure to be
followed by them-
(4) Where any party to any proceeding for the determination of standard
rent of or for eviction from a building dies during the pendency of the
proceeding, such proceeding may be continued after bringing on the
record:
(a) in the case of the landlord or tenant, his heirs or legal representatives;
(b) in the case of an un-authorized occupant, any person claiming under
him or found in occupation of the building.”
“Rule 25. Bringing legal representatives on record [Section 34 (4)]. -
(1) Every application for substituting the names of ¹[the heirs or legal
representatives, the claimants or occupants] of any person who was a
party to any proceedings under the Act and died during the pendency of
the proceedings shall be preferred within one month from the date of the
death of such person.
(2) The application shall contain the names and addresses and other
details of the heirs or legal representatives and their relationship with the
deceased and, be accompanied by any affidavit in its support, and
thereupon, the application shall be decided after a summary inquiry by
the authority concerned. ”
23. A conjoint reading of the aforesaid provisions indicates that while
Section 21 constitutes the substantive source of jurisdiction empowering
the Prescribed Authority to adjudicate the landlord's claim for release of
a building, Section 22 confers a limited statutory right of appeal only
against orders passed under Sections 21 and 24 of the Act. Section 34, on
the other hand, merely vests the authorities under the Act with
procedural powers akin to those exercisable by a Civil Court for the
effective conduct of proceedings. Rule 22(b), read with Section 34(1)(g),
supplements such procedural jurisdiction. Equally, Section 34(4) read
with Rule 25 manifests the legislative intent that proceedings continue
against the legal representatives of a deceased party and do not abate

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upon death. It is in the backdrop of this statutory scheme that the
questions formulated above fall for consideration.
Question No.1: Maintainability of Appeal under Section 22 of the
Act
24. The right of appeal is neither an inherent nor a natural right; it is a
creature of statute. It is well settled that such right must be conferred
expressly or by necessary implication, and in the absence thereof, no
appeal can be maintained. Section 22 of the Act, in clear terms, restricts
the right of appeal to orders passed under Section 21 or Section 24. The
legislative intent, thus, is to confine the appellate remedy to final
adjudications affecting substantive rights under the Act.
25. A careful reading of the statutory scheme indicates that Section 21
embodies the substantive provision governing the rights of the parties. It
confers jurisdiction upon the Prescribed Authority to adjudicate the
landlord's claim for release of a tenanted building on the grounds
specified therein, including bona fide requirement. An order passed
under Section 21 thus culminates in an adjudication of substantive civil
rights, resulting either in eviction of the tenant or continuation of the
tenancy.
26. A careful reading of the statutory scheme indicates that Section 21
embodies the substantive provision governing the rights and liabilities of
the parties. It confers jurisdiction upon the Prescribed Authority to
adjudicate the landlord's claim for release of a tenanted building on the
grounds specified therein, including bona fide requirement. An order
passed under Section 21 is, therefore, one determining substantive civil
rights and culminates either in release of the building in favour of the
landlord or in continuation of the tenancy. It is such adjudication which
the Legislature has made appealable under Section 22 of the Act.
27. Section 34, on the other hand, operates in an altogether different
sphere. It neither creates substantive rights nor authorises adjudication
upon the merits of the landlord's claim. The provision merely confers
procedural powers upon the authorities constituted under the Act to
enable them to effectively discharge their adjudicatory functions. The

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powers enumerated therein, including those exercised under the
residuary clause read with the Rules relating to recall of orders, are
procedural in character and are analogous to the powers vested in a Civil
Court under the Code of Civil Procedure for regulating the conduct of
proceedings.
28. The distinction between substantive and procedural provisions
assumes decisive significance in the present case. While a substantive
provision such as Section 21 culminates in an adjudication determining
the rights of the parties, a procedural provision such as Section 34
merely regulates the manner in which such adjudication is conducted or,
in an appropriate case, revisited on limited procedural grounds. An order
passed in exercise of procedural powers cannot, merely because it arises
in proceedings under Section 21, be elevated to the status of an order
passed under Section 21 itself. The source of the power exercised by the
authority, and not merely the subject-matter of the proceedings, furnishes
the true test for determining the character of the order.
29. In the present case, the release order dated 22.12.2023 was
admittedly passed under Section 21(1)(a) of the Act and was, therefore,
appealable under Section 22. The petitioners, however, did not avail the
statutory remedy against the said order. Instead, they invoked the
procedural jurisdiction of the Prescribed Authority by filing an
application seeking recall of the ex parte release order under Section 34
read with the relevant Rules. The order dated 07.02.2025 rejecting the
recall application does not adjudicate afresh upon the landlord's claim
for release, nor does it determine the substantive rights of the parties
under Section 21. It merely determines whether the ex parte order
deserved to be recalled on recognised procedural grounds such as
absence of due service or existence of sufficient cause for non-
appearance.
30. The submission advanced on behalf of the petitioners that the
recall proceedings constitute a continuation of the original proceedings
under Section 21 and that the order passed thereon must consequently be

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treated as an order under Section 21, though attractive at first blush,
cannot be accepted. The continuity of proceedings does not alter the
juridical character of the power exercised. The determinative
consideration is the source from which the authority derives its
jurisdiction to pass the impugned order. Where the authority exercises
procedural powers referable to Section 34 read with the Rules, the
resultant order retains its procedural character notwithstanding that it
arises out of proceedings originally instituted under Section 21.
31. The further submission that a restrictive construction of Section 22
would leave an aggrieved tenant remediless against an order having
serious civil consequences also does not merit acceptance. Hardship or
perceived inadequacy of a statutory remedy cannot furnish a legitimate
basis for enlarging the scope of a right of appeal which the legislature
has consciously circumscribed. The right of appeal being a creature of
statute, its existence and extent must necessarily be gathered from the
language employed by the legislature. In the present case, the ex parte
release order dated 22.12.2023 was itself an order passed under Section
21(1)(a) of the Act and, therefore, was appealable under Section 22. The
petitioners, however, did not avail of the said statutory remedy and
instead chose to invoke the recall jurisdiction of the Prescribed Authority
under Section 34 read with the Rules. Having elected to pursue such
procedural remedy, they cannot contend that the absence of an appeal
against the order rejecting the recall application leaves them remediless.
The Court cannot, on considerations of equity or perceived hardship,
create an additional appellate remedy where the statute has consciously
not provided one.  
32. Merely because the recall application arises from proceedings
under Section 21 does not ipso facto render the order passed thereon an
order under Section 21. Acceptance of such a construction would amount
to enlarging the scope of Section 22 beyond its plain language and
legislative intent. The Court cannot, under the guise of purposive
interpretation, expand the statutory right of appeal to categories of orders
which the Legislature has consciously excluded. The right of appeal

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being purely statutory, its existence, extent and conditions are governed
exclusively by the language employed by the Legislature and cannot be
enlarged by judicial interpretation.
33. If the contention of the petitioners were to be accepted, every
interlocutory or ancillary order passed during the pendency of
proceedings under Section 21—including orders relating to amendment
of pleadings, production of documents, summoning of witnesses,
adjournments, recall of witnesses or other procedural matters—could
equally be contended to partake the character of an order under Section
21 merely because such orders arise in the course of those proceedings.
Such an interpretation would obliterate the clear legislative distinction
between substantive adjudication and procedural facilitation, render the
statutory restriction embodied in Section 22 otiose, and defeat the
legislative objective of ensuring expeditious adjudication of landlord-
tenant disputes under the Act.
34. For all the reasons aforesaid, this Court is of the considered
opinion that an appeal under Section 22 of U.P. Act No. XIII of 1972
would not lie against an order rejecting an application for recall of an ex
parte release order, such order being one referable to the procedural
powers exercisable under Section 34 read with the Rules and not an
order passed under Section 21 or Section 24 of the Act. The Appellate
Authority, therefore, committed no error, either of jurisdiction or of law,
in dismissing Rent Control Appeal No. 32 of 2025 as not maintainable.
Question No. 2: Recall of the Ex Parte Release Order
35. Having answered the first question, the Court now proceeds to
examine whether the petitioners have made out any case for recall of the
ex parte release order dated 22.12.2023.
36. The consideration of an application seeking recall of an ex parte
order is governed by well-settled principles akin to those underlying
Order IX Rule 13 of the Code of Civil Procedure. A party seeking recall
must establish either that the summons were not duly served or that he
was prevented by "sufficient cause" from appearing when the matter was

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called on for hearing. These two grounds constitute the recognised and
exhaustive bases upon which an ex parte order may be recalled.
37. The principles governing recall of an ex parte order are no longer
res integra . The jurisdiction to set aside such an order is founded upon
the twin requirements that the applicant must establish either that
summons were not duly served or that he was prevented by “sufficient
cause” from appearing when the matter was taken up for hearing. The
expression “sufficient cause”, though incapable of precise definition, has
consistently been construed by the Supreme Court as a cause beyond the
control of the party concerned, to be determined on the facts and
circumstances of each case. While the expression deserves a liberal
construction to advance substantial justice, such interpretative generosity
cannot be extended to condone negligence, indifference, want of bona
fides or deliberate inaction. The discretionary jurisdiction to recall an ex
parte order is intended to prevent miscarriage of justice and not to revive
proceedings where the absence of the party is attributable to lack of due
diligence or vigilance. The relevant enquiry is confined to the cause
which prevented the party from appearing on the date fixed for hearing,
though the antecedent conduct of the litigant may legitimately be
considered insofar as it bears upon his bona fides and diligence. (See
Parimal v. Veena (2011) 3 SCC 545; G.P. Srivastava v. R.K. Raizada,
(2000) 3 SCC 54; Arjun Singh v. Mohindra Kumar, AIR 1964 SC
993.)
38. The explanation furnished in support of recall must be reasonable,
plausible and supported by the material on record so as to satisfy the
Court that the absence was neither deliberate nor attributable to
negligence. The Court is entitled to scrutinize the entire factual matrix,
including the conduct of the parties and the probabilities emerging from
the record, while maintaining a balance between the imperative of
affording a genuine opportunity of hearing and the equally salutary
principle that judicial proceedings must attain finality. The power to
recall an ex parte order is, therefore, discretionary in nature and must be

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exercised judiciously upon a careful appraisal of all relevant
circumstances.
39. It bears emphasis that a plea of non-service or lack of knowledge
must be substantiated by cogent material. The judicial record relating to
service carries a presumption of correctness, and the burden rests upon
the party concerned to establish, by cogent material, that the service was
legally deficient or wholly illusory.     
40. From the settled legal position discussed above, the following
principles emerge for determining whether sufficient cause has been
established for recall of an ex parte order:
(i) The applicant must establish that his absence was neither
deliberate nor attributable to negligence and that, despite exercising
reasonable care and vigilance, he was genuinely prevented from
appearing before the Court on the relevant date.
(ii) Mere assertions regarding non-service, lack of knowledge or
procedural irregularity, unsupported by cogent and reliable material,
would ordinarily not constitute sufficient cause. Judicial orders recording
due service carry a presumption of correctness which cannot be
displaced by vague or unsubstantiated allegations.
(iii) The Court is entitled to examine the overall conduct of the
applicant, including his diligence before and after the ex parte order, the
promptness with which he approached the Court, and whether the
explanation furnished inspires confidence on ordinary standards of
human conduct and probabilities.
(iv) The relevant enquiry is confined to the cause which prevented the
applicant from appearing on the date when the matter was taken up for
hearing. Earlier defaults or subsequent conduct are relevant only insofar
as they bear upon the bona fides and credibility of the explanation
offered.
(v) While the expression "sufficient cause" deserves a liberal
construction to advance substantial justice, such latitude cannot be

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extended to condone negligence, indifference, want of bona fides or
deliberate inaction.
(vi) The jurisdiction to recall an ex parte order is discretionary and
must be exercised judiciously upon a consideration of the entire factual
matrix. The Court must balance the need to afford a fair opportunity of
hearing with the equally important principle that judicial proceedings
should attain finality.
(vii) The principle that procedural law is the handmaid of justice does
not imply that concluded proceedings may be reopened merely because
an adverse order has been passed. The jurisdiction to recall an ex parte
order exists to remedy genuine inability to appear and not to revive
proceedings where the absence is attributable to negligence, prolonged
inaction or lack of due diligence.
41. The true enquiry, therefore, is whether the party seeking recall
acted with bona fide diligence and whether the circumstances disclose a
genuine inability to participate in the proceedings despite exercising
reasonable vigilance. The answer to that enquiry necessarily depends
upon the facts and circumstances of each case and must be arrived at
upon an overall appraisal of the record, the conduct of the parties and the
attendant probabilities. Where the material on record reflects prior
contest by the original party, continuation of proceedings after
substitution, judicial orders recording due service, participation through
counsel, prolonged inaction despite pendency of the proceedings,
absence of reasonable enquiry regarding the litigation, and failure to
rebut the judicial record relating to service and conduct of the
proceedings, the Court would ordinarily be justified in concluding that
no sufficient cause has been established for recalling the ex parte order.  
Application of the Above Principles to the Facts of the Present Case
42. The case set up by the petitioners may now be examined in the
light of the aforesaid principles.
43. The release proceedings under Section 21(1)(a) of U.P. Act No.
XIII of 1972 were instituted in the year 2016 against the original tenant.

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The record unmistakably reflects that the original tenant entered
appearance, filed a written statement and contested the proceedings on
merits by disputing the respondent-landlord's plea of bona fide
requirement and comparative hardship. The release application was
founded upon the respondent-landlord's case that the disputed shop was
bona fide required for establishment of a clinic for her son, who
possessed the requisite medical qualifications.
44. During the pendency of the proceedings, the original tenant died
on 15.12.2020. Thereafter, the present petitioners, being his legal
representatives, were brought on record by order dated 26.07.2022. In
view of Section 34(4) of the Act read with Rule 25 of the Rules framed
thereunder, the proceedings did not abate upon the death of the original
tenant but continued against the substituted legal representatives as a
continuation of the original proceedings.
45. Following the substitution, notices were directed to be issued to
the substituted legal representatives through registered post. It was at this
stage that the counsel who had earlier represented the deceased tenant
filed Application Paper No. 27 -Ga and appeared before the Prescribed
Authority on 20.07.2023 asserting that the substituted legal
representatives had not been served through registered post. The
Prescribed Authority thereupon required the learned counsel to disclose
on whose behalf he was appearing and whether he had received any
authority from the substituted legal representatives. The learned counsel
stated that he had not been authorised by any of them.
46. Upon verification of the judicial record, the Prescribed Authority
found that notices had already been issued to the substituted legal
representatives through registered post and that the service report
disclosed sufficient service. Accordingly, the objection regarding non-
service was rejected. Nevertheless, with a view to ensuring complete
fairness, the Prescribed Authority granted yet another opportunity to the
substituted legal representatives to file their written statement and fixed
29.07.2023 for the said purpose.

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47. The record further discloses that despite the aforesaid opportunity,
the substituted legal representatives neither filed any written statement
nor adduced any evidence. Consequently, by order dated 25.09.2023,
their opportunity to lead evidence was closed. The matter thereafter
remained pending for final arguments from 09.10.2023. Arguments were
heard on 14.12.2023 and the release application ultimately came to be
decided by judgment and order dated 22.12.2023.
48. Aggrieved thereby, the petitioners instituted Misc. Case No. 3 of
2024 seeking recall of the release order dated 22.12.2023. The principal
foundation of the recall application was that after substitution no notice
had ever been served upon them and that they remained wholly unaware
of the pendency of the proceedings until 17.01.2024, when, according to
them, they came to know through a person known to them that an
eviction order had been passed. It was their case that inspection of the
record was thereafter obtained on 19.01.2024, whereupon they first
acquired knowledge of the judgment dated 22.12.2023. They further
alleged that notices had neither been served through ordinary process nor
by registered post; that the postal receipts relied upon by the respondent-
landlord were suspicious; that effective steps for service had not been
taken after substitution; that despite orders directing fresh steps, the
proceedings continued ex parte without ensuring proper service. On
these premises, it was pleaded that the release order stood vitiated for
violation of the principles of natural justice.
49. The recall application was opposed by the respondent-landlord by
filing detailed objections. It was contended that the judgment and release
order dated 22.12.2023 was not an ex parte order in the strict sense but a
judgment rendered on merits after due compliance with the prescribed
procedure; that the plea regarding incorrect description of the legal
representatives was wholly misconceived; that the substituted legal
representatives had been duly served; that no fresh notice was required
after valid substitution and service; and that the applicants had full
knowledge of the pendency of the proceedings but deliberately chose not

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to participate therein with a view to delaying execution of the release
order. It was accordingly prayed that the recall application be dismissed.
50. The Prescribed Authority examined he aforesaid objections in the
light of the judicial record and found no merit in the recall application. It
noticed that notices had been issued to the substituted legal
representatives through registered post and that service had already been
held to be sufficient by judicial order dated 20.07.2023. It further noticed
that, notwithstanding the order dated 20.7.2023 holding service to be
sufficient, the Prescribed Authority, by way of abundant caution, granted
a further opportunity to the substituted legal representatives to file their
written statement. Thus, the grievance that the proceedings were
concluded without affording an adequate opportunity is not borne out
from the judicial record. The Prescribed Authority also took note of the
fact that despite such opportunity, no written statement was filed, no
evidence was adduced and, ultimately, the opportunity to lead evidence
was closed on 25.09.2023 before the matter proceeded for final hearing.
51. Equally significant is the circumstance that the judicial record
does not support the plea that the proceedings remained wholly beyond
the knowledge of the tenant's side after substitution. As noticed
hereinabove, the issue regarding service upon the substituted legal
representatives came to be raised before the Prescribed Authority itself,
whereafter the Court verified the record, recorded a finding regarding
sufficient service and, by way of abundant caution, granted a further
opportunity to the substituted legal representatives to participate in the
proceedings. Despite such opportunity, no written statement was filed,
no evidence was led and the proceedings thereafter culminated in the
judgment dated 22.12.2023. These contemporaneous judicial
proceedings lend little support to the petitioners' subsequent plea that
they remained completely unaware of the litigation until after the release
order had been passed.
52. The plea of complete ignorance of the proceedings also rests
entirely upon the self-serving averments contained in the affidavit filed

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in support of the recall application. No independent material has been
produced to establish that the notices were never tendered, that the
service reports were fabricated, or that the judicial orders recording
sufficient service were erroneous. Mere allegations that the postal
receipts appeared suspicious or that service was not properly effected,
unsupported by any cogent evidence, cannot rebut the presumption of
correctness which attaches to judicial proceedings.
53. The conduct of the petitioners, viewed in its entirety, also assumes
relevance while examining the plea of sufficient cause. The release
proceedings had remained pending since the year 2016 in relation to a
commercial tenancy. The original tenant had actively contested the
proceedings throughout his lifetime. After his demise, the petitioners
admittedly inherited the tenancy rights and continued in possession of
the disputed commercial accommodation. In these circumstances, a
reasonable degree of diligence and vigilance was expected from them in
monitoring litigation directly concerning the tenancy rights inherited by
them.
54. The release order dated 22.12.2023 further demonstrates that the
Prescribed Authority adjudicated the release application upon
consideration of the pleadings and evidence available on record. It
recorded findings that the respondent-landlord had established her bona
fide requirement for establishment of a clinic for her son; that the tenants
had alternative accommodation available at property No.4/236, Gwalior
Road, Baluganj, Agra, from where motorcycle repairing and welding
work was being carried on; and that no endeavour had been made by the
tenants to secure alternative accommodation despite pendency of the
proceedings for several years. The release order, therefore, cannot be
characterised as a mechanical ex parte order passed without
consideration of the merits.
55. The maxim vigilantibus non dormientibus jura subveniunt —the
law assists those who are vigilant and not those who sleep over their
rights—squarely applies to the facts of the present case. The petitioners

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have failed to establish that they were prevented by circumstances
beyond their control from participating in the proceedings. Their
explanation is founded principally upon a generalized plea of non-
service and lack of knowledge, unsupported by any reliable material
capable of displacing the judicial record.
56. For the reasons discussed hereinabove, this Court is of the
considered opinion that the petitioners have failed to establish either that
summons were not duly served upon them or that they were prevented
by any sufficient cause from appearing when the release proceedings
were taken up for hearing. The conclusion reached by the Prescribed
Authority in rejecting the recall application is fully borne out by the
material available on record and warrants no interference.
Conclusion:
57. Having answered the questions formulated for determination, it
now remains to examine whether the impugned orders warrant
interference in exercise of the supervisory jurisdiction of this Court
under Article 227 of the Constitution of India.
58. It is well settled that the jurisdiction of this Court under Article
227 is supervisory and not appellate. The power is intended to ensure
that subordinate courts and tribunals act within the limits of their
authority and in accordance with law. It is not an avenue for correction
of every error of fact or law, nor does it permit this Court to re-
appreciate the evidence or substitute its own conclusions merely because
another view may also be possible. Interference is warranted only where
the impugned order suffers from patent lack or excess of jurisdiction,
manifest illegality, perversity, or such grave procedural irregularity as
has resulted in failure of justice.
59. Tested on the aforesaid parameters, this Court finds no such
jurisdictional infirmity in the orders impugned.
60. The Prescribed Authority has considered the pleadings of the
parties, examined the record relating to substitution and service of the
legal representatives, adverted to the proceedings conducted after

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substitution, including the objection regarding service, the grant of
further opportunity to the substituted legal representatives, the closure of
their opportunity to adduce evidence and the subsequent adjudication of
the release application, and has thereafter assigned cogent and reasoned
findings while rejecting the recall application. The conclusions so
recorded are founded upon the material available on record and cannot
be characterised as arbitrary, perverse or unsupported by evidence.
61. The Appellate Authority, in turn, confined its consideration to the
question of maintainability of the statutory appeal and rightly concluded
that an appeal under Section 22 of U.P. Act No. XIII of 1972 would not
lie against an order rejecting an application for recall referable to the
procedural powers contained in Section 34 of the Act read with the Rules
framed thereunder. Once the appeal itself was found to be not
maintainable, the Appellate Authority cannot be faulted for declining to
examine the merits of the controversy relating to service or existence of
sufficient cause.
62. No jurisdictional error, manifest illegality, perversity or failure of
justice has been demonstrated so as to warrant interference by this Court
in exercise of its supervisory jurisdiction under Article 227 of the
Constitution. The findings recorded by the Prescribed Authority on the
question of service and sufficient cause are essentially findings of fact
based upon appreciation of the material on record, while the conclusion
of the Appellate Authority regarding maintainability correctly reflects
the statutory scheme of Sections 21, 22 and 34 of the Act. Neither of the
impugned orders suffers from any error warranting exercise of the
supervisory jurisdiction of this Court.
63. Accordingly, this Court holds that-
(i) an appeal under Section 22 of U.P. Act No. XIII of 1972 is not
maintainable against an order rejecting an application for recall of an ex
parte release order, such order being referable to the procedural powers
contained in Section 34 of the Act read with the Rules framed thereunder
and not being an order under Section 21 or Section 24 of the Act;

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(ii) the petitioners have failed to establish either that summons were
not duly served upon them or that they were prevented by sufficient
cause from appearing before the Prescribed Authority when the
proceedings were taken up for hearing. The explanation furnished by
them does not satisfy the settled judicial test of diligence, bona fides and
genuine inability; and
(iii) the impugned orders suffer from no jurisdictional error, patent
illegality or perversity warranting interference by this Court in exercise
of its supervisory jurisdiction under Article 227 of the Constitution of
India.
64. Consequently, the judgment and order dated 03.02.2026 passed by
the Appellate Authority/District Judge, Agra in Rent Control Appeal No.
32 of 2025, the order dated 07.02.2025 passed by the Prescribed
Authority/Judge, Small Causes Court, Agra in Misc. Case No. 3 of 2024,
and the judgment and release order dated 22.12.2023 passed in P.A. Case
No. 16 of 2016 warrant no interference.
65. The petition is, accordingly, dismissed .
66. There shall be no order as to costs.
(Dr. Yogendra Kumar Srivastava, J.)
July 07, 2026
RKK/-
Digitally signed by :-
RAJ KUMAR KANNAUJIA
High Court of Judicature at Allahabad