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SMT. JAMEELA AND OTHERS versus ABDUL HAMEED

High Court of Judicature at Allahabad

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Smt. Jameela And Others v. Abdul Hameed - WRIT - A No. 2508 of 2007 [2007] RD-AH 1030 (16 January 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble Rakesh Tiwari,J.

Heard learned counsel for the petitioner and perused the record.

  Briefly stated, the facts of the case are that respondent-landlord filed release application dated 20.4.2000 under Section 21(1)(a) of the U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, registered as P.A. case no. 22 of 2000, for release of the accommodation in dispute for his own use.

Petitioner-tenant contested the release application by filing written statement dated 8.3.2001 denying the plaint allegations.

Release application of the respondent-landlord was allowed vide judgment and decree dated 5.2.2003 passed by the trial Court.

Aggrieved by decree dated 5.2.2003, the petitioner-tenant preferred Rent Appeal No. 8 of 2003. He also filed application dated 12.8.2004 for staying the proceedings of appeal.

Thereafter, the petitioner insituted regular Suit no. 1339 of 2003 for declaration which is said to be still pending before the Court of 1st Additional Civil Judge (Sr. Division), Kanpur Nagar.  He again moved an application dated 7.12.2006 for deciding question of ownership, which has been rejected by the impugned order as under :-

"3.1.2007: 85-C by the respondents with the prayer to decide the question of ownership before hearing of appeal. Such application was moved on 12.8.2004 and was numbered as 38-C and it has been ordered that this application be taken up along with the arguments vide order dated 27.11.2006 against which none of the parties have agitated before any forum. This application is not maintainable and is rejected. The application contains another prayer that one month's time be granted for arguments. No grounds for adjournment are made out in the application and this application is obviously delaying tactics. The Hon'ble High Court vide its order dated 13.9.06 passed in Civil Misc. Writ Petition No. 50480/2006 has directed this Court to decide the appeal as expeditiously as possible without granting undue adjournment to either of the parties preferably within six months. The application 65-C is accordingly rejected. The parties may prefer arguments tomorrow at 10.30A.M.

                                                               Sd/- Illegible

                                             Addl. District Judge, Court No. 1

                                                          Kanpur Nagar

                                                                 3.1.2007"

Aggrieved, the petitioner has come up before this Court by means of the instant writ petition.

A perusal of impugned order reflects that it is merely an interlocutory order and that the petitioner had also moved earlier an application dated 12.8.2004 for taking the questionof ownership which was to be heard on 27.11.2006. The case has not yet been finally decided. The petitioner has rushed to this Court against an interlocutory order holdiing the application to be not maintainable. It is always open to a party to agitate his/her cause during the course of final hearing even if his/her application is rejected but he/she cannot be permitted to invoke extraordinary jurisdiction challenging the interlocutory orders  unless there are good reasons for it.  It appears that this application was also rejected as there was no ground made out for adjournment, as prayed for and the Court was of the view that it is part of delaying tactics by the petitioner.

This appears to be a frivolous petition for delaying hearing in the Court below. The writ petition is accordingly dismissed.

Costs

So far as cost is concerned, Hon'ble the Apex Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India-AIR 2005 SC-3353  has held that-

             " So far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on number of other issues or points, which were unnecessarily raised. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rule in force. If any of the parties has unreasonably protracted the proceedings, the judge should consider exercising discretion to impose exemplary costs after taking into account the expense incurred for the purpose of attendance on the adjourned dates."

      Thus from the law laid down by the Hon'ble Apex Court in the aforesaid case of Salem Advocate bar Association (supra) it is apparent that non-payment of cost is an exception for which special reasons have to be given by the Court and that in normal circumstances cost has to be awarded on the party according to the issue decided in favour of the party which were unnecessarily raised. The cost so imposed should be in accordance with rules and if the proceedings are unnecessarily protracted or adjournments have been sought it is upon the discretion of the Judge to impose exemplary cost taking also into account the circumstances etc. for the purpose of adjournment.

Following the ratio laid down in Salem Advocate bar Association (supra) , this Court in Civil Misc. Writ Petition No. 48752 of 2006                Nizamuddin Versus  Shakoor Ahmad after considering provisions of          Rule 9 of Chapter XXII and Rule 11 of Chapter XXI of the High Court Rules, 1951 and provisions of Sections 34, 35A and 35B of the Code of Civil Procedure has held that while awarding interest on a party by non-payment of principal amount or any dues should also be considered by the Court and not only interest but penal interest may also be awarded.

        Since it is a frivolous petition, the cost is to be deterrent and exemplary. In the facts and circumstances of the case, it is directed that apart from payment of arrears of rent, if any, the petitioner will also pay cost of Rs.5,000/- (Rupees Five Thousand) which shall be deposited by the petitioner before District Judge, Kanpur Nagar within two months from today. The arrears of rent as well as the cost so deposited can be withdrawn by the respondent-landlord without furnishing any security within two months from the date of deposit. In case the petitioner fails to make payment of the aforesaid amount, the same shall be recoverable as arrears of land revenue.

Dt. 16.1.2007

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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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