Appeal Under Section 22 Does Not Lie Against Recall of Ex Parte Release Order, Holds Allahabad HC

Allahabad High Court rules that an order rejecting an application to recall an ex parte release order under the UP Rent Control Act is procedural in character, traceable to Section 34, and falls outside the appellate remedy conferred by Section 22.

The Allahabad High Court has dismissed a petition filed under Article 227 of the Constitution, holding that an appeal under Section 22 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 does not lie against an order rejecting an application for recall of an ex parte release order. Dr. Justice Yogendra Kumar Srivastava, sitting singly in Court No. 35, held that such a recall order is passed in exercise of procedural powers under Section 34 of the Act read with the relevant Rules, and not under Section 21 or Section 24 — the only provisions from which Section 22 creates a statutory right of appeal. The court also found that the petitioners, who are legal representatives of a deceased tenant, had failed to establish either absence of due service or any sufficient cause for their non-appearance in the original release proceedings.

The Dispute Before the Court

The matter relates to Shop No. 4, part of property No. 4/51, Kachahri Road, Baluganj, Agra, which was in the tenancy of one late Mohammad Shamim at a monthly rent of Rs. 500. In 2016, the respondent-landlord, Smt. Harpal Kaur, filed a release application under Section 21(1)(a) of the Act before the Prescribed Authority (Judge, Small Causes Court, Agra), registered as P.A. Case No. 16 of 2016. Her case was that the shop was bona fide required for setting up a clinic for her son, who held the requisite medical qualifications, and that the premises — situated on a main road — was eminently suitable for that purpose.

The landlord also pleaded that the tenant was already carrying on motorcycle repairing and welding work from property No. 4/236, Gwalior Road, Baluganj, Agra, situated at a short distance, and that greater comparative hardship would be caused to her if the application were rejected.

The original tenant contested the proceedings and filed a written statement denying bona fide need and comparative hardship. He died on 15 December 2020 during the pendency of the proceedings. His legal representatives — the present petitioners — were brought on record by order dated 26 July 2022. The proceedings did not abate, as Section 34(4) of the Act read with Rule 25 of the Rules expressly contemplates continuation against substituted legal heirs.

Notices were directed to be served on the substituted legal representatives through registered post. On 20 July 2023, counsel who had earlier appeared for the deceased tenant filed an application asserting that the substituted representatives had not been served. The Prescribed Authority queried whether this counsel had been authorised by any of them; the counsel stated he had not. The Prescribed Authority examined the record, found that notices had been issued and service was sufficient, rejected the objection, and nonetheless granted a further opportunity to file a written statement, fixing 29 July 2023 for the purpose.

Despite this additional opportunity, no written statement was filed and no evidence was adduced. By order dated 25 September 2023, the opportunity to lead evidence was closed. Final arguments were heard on 14 December 2023. On 22 December 2023, the Prescribed Authority allowed the release application, recording findings that the landlord's need for a clinic for her son was bona fide, that the tenants had alternative commercial accommodation at Gwalior Road, and that no effort had been made to secure alternative premises during the years the proceedings remained pending.

The petitioners then filed Misc. Case No. 3 of 2024 before the Prescribed Authority seeking recall of the ex parte release order. They claimed they had no knowledge of the proceedings after substitution, came to know of the eviction order only on 17 January 2024 through a person known to them, and obtained inspection of the record on 19 January 2024. They alleged that notices were never served, that postal receipts appeared suspicious, and that their absence was not deliberate. This recall application was rejected by order dated 7 February 2025.

Aggrieved, the petitioners preferred Rent Control Appeal No. 32 of 2025 before the District Judge, Agra, the Appellate Authority under the Act. The Appellate Authority dismissed the appeal on 3 February 2026 as not maintainable. The petitioners then filed the present petition under Article 227, challenging all three orders.

The Statutory Framework and the Legal Question

Section 21(1)(a) of the U.P. Act No. XIII of 1972 empowers the Prescribed Authority to order eviction of a tenant on a landlord's application if it is satisfied that the building is bona fide required for occupation by the landlord or any member of his family, whether for residential or professional purposes.

Section 22 of the Act confers a right of appeal to the District Judge only against orders passed under Section 21 or Section 24. The provision expressly limits the appellate remedy to those two categories of orders.

Section 34(1) of the Act vests the Prescribed Authority and appellate and revising authorities with procedural powers akin to those exercisable by a Civil Court under the Code of Civil Procedure when trying a suit. Section 34(1)(g) read with Rule 22(b) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 specifically confers the power to proceed ex parte and to set aside, for sufficient cause, an order passed ex parte.

Two questions were formulated for determination: first, whether an appeal under Section 22 was maintainable against an order rejecting a recall application; and second, whether the ex parte release order dated 22 December 2023 deserved to be recalled on the grounds of absence of due service or sufficient cause.

How the Court Reasoned on Maintainability

The court opened its analysis with the settled principle that the right of appeal is a creature of statute — it must be conferred expressly or by necessary implication and cannot be enlarged by judicial interpretation.

Section 21, the court held, is the substantive provision conferring jurisdiction on the Prescribed Authority to adjudicate the landlord's claim. An order under Section 21 determines substantive civil rights and culminates either in eviction or in continuation of tenancy. It is such final adjudication that Section 22 renders appealable.

Section 34, by contrast, operates in a different sphere entirely. It neither creates substantive rights nor empowers adjudication of the landlord's claim on merits. It merely confers procedural powers to enable the authorities to discharge their adjudicatory functions effectively. The court held that the recall jurisdiction under Section 34 read with Rule 22(b) is procedural in character and analogous to powers under Order IX Rule 13 of the Code of Civil Procedure.

The court identified the decisive test: the source of the power exercised by the authority, not merely the subject-matter of the proceedings, determines the character of the order. An order rejecting a recall application does not adjudicate afresh upon the landlord's claim for release. It merely determines whether the ex parte order should be recalled on recognised procedural grounds. Such an order, though arising from proceedings under Section 21, does not become an order under Section 21.

The court rejected the petitioners' submission that the recall proceedings constitute a continuation of the original Section 21 proceedings and that any order passed thereon must be treated as an order under Section 21. It held that continuity of proceedings does not alter the juridical character of the power exercised. The fact that a recall application arises from release proceedings does not ipso facto render the order passed on it an order under Section 21.

The court also rejected the argument that a restrictive reading of Section 22 would leave an aggrieved tenant remediless. It pointed out that the ex parte release order dated 22 December 2023 was itself an order under Section 21(1)(a) and was directly appealable under Section 22. The petitioners did not avail that remedy. Having elected to pursue the procedural recall jurisdiction instead, they could not contend that the absence of a further appeal against the recall rejection left them without recourse. The court was firm that equity or perceived hardship cannot justify creating an appellate remedy where the statute has consciously not provided one.

Accepting the petitioners' construction, the court warned, would mean that every interlocutory order passed during Section 21 proceedings — relating to amendments, summoning of witnesses, adjournments, or production of documents — could be claimed to partake the character of an order under Section 21. That would obliterate the legislative distinction between substantive adjudication and procedural facilitation, and would render the restriction in Section 22 meaningless.

The Appellate Authority was therefore found to have committed no error of jurisdiction or of law in dismissing Rent Control Appeal No. 32 of 2025 as not maintainable.

Recall on Merits: Sufficient Cause Not Established

Proceeding to the second question, the court examined whether the petitioners had made out a case for recall of the ex parte release order dated 22 December 2023.

The court set out the governing principles. A party seeking recall must establish either that summons were not duly served or that it was prevented by “sufficient cause” from appearing when the matter was taken up. The expression sufficient cause, the court noted, has been consistently construed by the Supreme Court as a cause beyond the party's control, to be assessed on the facts of each case. Interpretative generosity in construing sufficient cause cannot extend to condoning negligence, indifference, want of bona fides, or deliberate inaction. The court drew on Parimal v. Veena, (2011) 3 SCC 545; G.P. Srivastava v. R.K. Raizada, (2000) 3 SCC 54; and Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993.

A plea of non-service, the court held, must be substantiated by cogent material. Judicial orders recording due service carry a presumption of correctness, and the burden of displacing that presumption rests on the applicant. Vague or unsubstantiated allegations cannot suffice.

Applying these principles to the facts, the court found the petitioners' case unsustainable on multiple grounds.

The original tenant had actively contested the proceedings since 2016. After his death, the petitioners were substituted and notices were issued through registered post. The service objection raised by the earlier counsel in July 2023 was examined by the Prescribed Authority on the record itself; service was found sufficient by judicial order dated 20 July 2023. Despite that, an additional opportunity was granted to file a written statement. None was filed. No evidence was led. The opportunity to adduce evidence was closed on 25 September 2023, and the proceedings culminated in a reasoned judgment on 22 December 2023.

The court noted that the petitioners' plea of complete ignorance of the proceedings rested entirely on self-serving averments in the affidavit accompanying the recall application. No independent material was produced to show that notices were never tendered, that service reports were fabricated, or that the judicial orders recording sufficient service were erroneous. Suspicion about postal receipts, unaccompanied by evidence, could not rebut the presumption attached to judicial proceedings.

The court also examined the petitioners' conduct holistically. They had inherited a commercial tenancy which had been in litigation since 2016. Their predecessor had actively participated. In those circumstances, a reasonable degree of vigilance in monitoring proceedings directly affecting their tenancy rights was expected. The release order itself, the court found, was not a mechanical one: it was based on pleadings and evidence, and recorded specific findings on bona fide need, alternative accommodation, and comparative hardship.

Invoking the maxim vigilantibus non dormientibus jura subveniunt — the law aids the vigilant and not those who sleep on their rights — the court concluded that the petitioners had failed to establish either absence of due service or any genuine sufficient cause for non-appearance.

Supervisory Jurisdiction Under Article 227

Turning to the Article 227 petition itself, the court reiterated that supervisory jurisdiction is not appellate. Interference is warranted only where the impugned order suffers from patent lack or excess of jurisdiction, manifest illegality, perversity, or grave procedural irregularity resulting in failure of justice. It is not an avenue for re-appreciation of evidence or substitution of conclusions merely because another view is possible.

The Prescribed Authority had examined the record on substitution, service, and subsequent proceedings, and had assigned cogent and reasoned findings while rejecting the recall application. Those findings were grounded in the material on record and could not be characterised as arbitrary or perverse.

The Appellate Authority had confined itself to the maintainability question and correctly concluded that Section 22 does not extend to recall orders referable to Section 34. Once maintainability was rightly decided against the petitioners, the Appellate Authority could not be faulted for not examining the merits.

No jurisdictional error, manifest illegality, or failure of justice was found in either order.

Order

The court held: (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 Section 34 read with the Rules and not being an order under Section 21 or Section 24; (ii) the petitioners 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; and (iii) the impugned orders suffer from no jurisdictional error, patent illegality, or perversity warranting interference under Article 227.

The judgment and order dated 3 February 2026 of the Appellate Authority/District Judge, Agra in Rent Control Appeal No. 32 of 2025, the order dated 7 February 2025 of the Prescribed Authority/Judge, Small Causes Court, Agra in Misc. Case No. 3 of 2024, and the judgment and release order dated 22 December 2023 in P.A. Case No. 16 of 2016 were all left undisturbed. The petition was dismissed with no order as to costs.