Appeal Under UP Rent Act Not Maintainable Against Rejection Of Plea To Recall Ex-Parte Eviction Order: Allahabad High Court
The Allahabad High Court has held that an appeal under Section 22 of Uttar Pradesh Urban Buildings [Regulation of Letting, Rent and Eviction] Act, 1972 is not maintainable against an order rejecting an application for recall of an ex-parte release (eviction) order passed under Section 21(1)(a) of the Act. It held that such an order is referable to the procedural powers exercisable under...
The Allahabad High Court has held that an appeal under Section 22 of Uttar Pradesh Urban Buildings [Regulation of Letting, Rent and Eviction] Act, 1972 is not maintainable against an order rejecting an application for recall of an ex-parte release (eviction) order passed under Section 21(1)(a) of the Act.
It held that such an order is referable to the procedural powers exercisable under Section 34 read with the Rules framed thereunder, and is not an order under Section 21 or Section 24, against which the Act provides a right of appeal.
Section 22 of the Uttar Pradesh Urban Buildings [Regulation of Letting, Rent and Eviction] Act, 1972 confines the right of appeal to orders passed under Section 21 or Section 24. Section 21 empowers the Prescribed Authority to order a tenant's eviction on the landlord's application, including where the building is bona fide required.
Section 34 vests the authorities under the Act with procedural powers similar to those of a civil court. Rule 22(b) framed under Section 34(1)(g) provides for setting aside an ex parte order for sufficient cause.
Dr. Justice Yogendra Kumar Srivastava held,
“…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..”
Respondent-landlord had instituted proceedings under Section 21(1)(a) of the Act seeking release of a shop at Baluganj, Agra, on grounds that it was bona fide required to set up a clinic for her son. The original tenant contested the release application but died during its pendency. His legal representatives were substituted. The release application was ultimately allowed ex parte on 22 December 2023.
The substituted tenants applied to the Prescribed Authority to recall the order under Section 34 read with the Rules. When the recall application was rejected, they filed an appeal under Section 22, which the Appellate Authority dismissed as not maintainable. They then approached the High Court under Article 227 of the Constitution of India.
Before the High Court, the tenants argued that the recall proceedings were a continuation of the release proceedings under Section 21, so an order rejecting recall has the character of an order under Section 21 and was appealable. They argued that a restrictive reading of Section 22 would leave a tenant remediless against an order carrying serious civil consequences.
The Court held that Section 21 of the Uttar Pradesh Urban Buildings [Regulation of Letting, Rent and Eviction] Act, 1972 is a substantive provision culminating in an adjudication of civil rights, while Section 34 merely furnishes procedural powers to regulate the conduct of proceedings. It held that an order refusing to recall an ex parte order flows from procedural jurisdiction and does not adjudicate the landlord's claim afresh.
Holding that right to appeal is a creation of the statute and not an inherent right, the Court held,
“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.”
The Court held that the tenants invoked the procedural powers rather than filing a statutory appeal against the order which determined the rights of the parties.
“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”
The Court held that accepting tenant's arguments of continuation of proceedings would render Section 22 otiose as it would obliterate the distinction between the substantive adjudication and procedural facilitation.
It held that such a construction would render every interlocutory order in Section 21 proceedings appealable and defeat the legislative object of expeditious adjudication. It held that the right of appeal being a creature of statute, could not be enlarged by judicial interpretation on grounds of hardship, particularly as the tenants had themselves allowed the appealable release order to become final and had chosen to pursue the remedy of recall.
On the merits of the recall, the Court observed that the tenants had not established their non-service nor sufficient cause was shown for their absence. It observed that the judicial record reflected due service and a further opportunity granted before the matter proceeded.
Accordingly, the petition was dismissed.
Case Title: Smt. Bashiran and another v. Smt. Harpal Kaur 2026 LiveLaw (AB) 436
Case Citation: 2026 LiveLaw (AB) 436
Counsel for Respondent :- Rajesh Kumar Sharma, Shobh Nath