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SRI AMIT KUMAR AND OTHERS versus RAJ KISHAN RASTOGI

High Court of Judicature at Allahabad

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Sri Amit Kumar And Others v. Raj Kishan Rastogi - WRIT - A No. 2686 of 2007 [2007] RD-AH 1118 (17 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.

This writ petition has been directed against the orders dated 5.4.2006 passed by the Judge, Small Causes Court, Moradabad in S.C.C. No.92 of 1999 and dated 3.8.2006 passed by Additional District Judge, Moradabad in S.C. C Revision No. 19 of 2006.

The case of the petitioner is that respondent-landlord filed S.C.C. suit no. 92 of 199 against the tenant late Sri Ram Prasad Rastogi, substituted by the present petitioners on the ground of non payment of arrears of rent which was due from 1.1.976 in respect of a portion of ground floor of house located in Mohalla Faizganj, Moradabad.  Late Sri Ram Prasad Rastogi was tenant of the accomodation in dispute on monthly rent of Rs.130/-.

The suit was contested by late Sri Ram Prasad Rastogi by filing written statement denying the plaint allegations, who died during the pendency of the suit and was substituted by the petitioners as his legal heirs and representatives.

Evidence of Smt. Kamani Devi, widow of late Sri Ram Prasad Rastogi was closed due to her non appearance.  She moved an application for recall/setting aside the order of close of her evidence and the case was fixed for 4.7.2005 and thereafter for 5.8.2005 when she moved an application to recall of the order dated 4.5.2005 allowing her an opportunity for adducing evidence. Her application was rejected vide order dated 5.8.2005.

Aggrieved, she preferred revision against the order dated 5.8.2005, which was dismissed vide order dated 5.11.2005. Thus, the evidence of petitioners was also closed.

Aggrieved, the petitioners moved application dated 28.3.1006 before the Small Causes Court, Moradabad praying for an opportunity to lead evidence, which was rejected by Judge, Small Causes Court vide order dated 5.4.2006.

The petitioners preferred revision under Section 25 of the Small Causes Court Act against order dated 5.4.2005which too has been dismissed by the impugned order dated 3.8.2006 by the revisional Court.

The petitioners have challenged the aforesaid orders dated 5.4.2006  and 3.8.2006 in the instant writ petition.

Counsel for the petitioners urged that the Courts below have acted against the principle of natural justice in depriving the petitioners to lead evidence. He vehemently urged that the impugned orders being arbitrary and illegal, are liable to be quashed.

A perusal of impugned judgment passed by the revisional Court reveals that the revisional Court  has considered the each and every aspect of the case and held that :-

" eSaus mHk;I{k dks lquk gS] Ik=koyh dh lE;d ifj'kyu fd;k gS] rnuqlkj fuxjkuh U;k;ky; dk fu"d"kZ gSA blesa dksbZ 'kd ugha gS fd jkeizlkn dh e`R;q ds ckn mudh fo/kok iRuh Jherh dkeuh muds rhu iq= vfer]fufru o lfpu usa la;qDr oknksRrj 57 x izLrqr fd;k Fkk A bl ij pkjksa ds gLrk{kj gS A vr% pkjksa okjhlku dks v/khuLFk U;k;ky; Onkjk lk{; dk volj fn;k gqvk ekuk pk;sxk A lk{; esa dkeuh jLrksxh usa 'kiFki= 74 x fn;k mlesa Hkh ckj ckj izfroknhx.k 'kCn dk iz;ksx fd;k x;k gS tks bl rF; dk ifjpk;d gS fd izfroknhx.k@fuxjkuhdrkZ lkfey Fks vkSj mUgksusa tfj;s ekrk viuk lk{; 74 x 'kiFki= esa nsdj dgk gS fd izfroknhx.k ij dksbZ fdjk;k cdk;k ugha gS vkSj og fMQkYVj ugha gS A

8& mijksDr ifjfLFkfr;ksa esa fuxjkuhdrkZx.k dk ;g rdZ lgh ugha gS fd mUgsa vulquk NksM fn;k x;k gS vkSj y?kqokn esa mudk I{k gh ugha vk;k gSA fdjk;snkjjh ds fu;e fo'ks"k vf/kfu;e esa ls vk;s gSa blfy, bldh fo'ks"k O;oLFkk,a gSa A nwljs Ik{k dkas Hkh lquus dk lkekU; vk'k; ij yafcr djds ;gkW ykxw ugha fd;k tk ldrk gS A

&&&

10& fuxjkuhdrkZ dk ;g rdZ lgha ugha gS fd iwoZ esa v/khuLFk U;k;ky; dh dk;Zokgh ds nkSjku ds muds fdlh vkpj.k dks fuxjkuh eas ugha ns[kk tk ldrk gS  A okLro esa bl fuxjkuh esa fuxjkuhdrkZ dh lk{; esa ftjg djkus ds volj dks muds vkpj.k dks vlnHkkoh ekudj lekIr fd;k x;k gS A vr% mudk vkpj.k bl fuxjkuh esa Hkh lqlaxr ugha gS A

11& &&&&

12& mijksDr fu"d"kZ ds v/khu U;k;ky; dk er gS fd v/khuLFk U;k;ky; ds vkns'k esa dksbZ fof/kd pwd ugha gS vkSj u gh fdlh rF; dh O;k[;k ;k lk{; ds I<usa =qfV gqbZ gS A vkyksP; vkns'k fof/k lEer vkSj iwjh rkSj ij efLr"d dk iz;ksx djds ikfjr fd;k x;k gS vkSj blesa fdlh gLr{ksi dh vko';drk ugha gSA fuxjkuh [kkfjt fd;s tkus ;ksX; gS A"

From the records, it appears that the petitioners had moved paper no. 102-Ga and were substituted as respondent nos. 1/1 to � in place of original respondent-tenant and after taking several adjournments did not come forward for their cross examination, hence their application for further adjournment moved under Section 151 of the Code of Civil Procedure on 4.5.2005 was rejected by the Court below on 5.8.2005.  Their opportunity of cross examination was closed on account of non appearance of Smt. Kamani Devi. It appears that thereafter Smt. Kamani Devi moved an application for recalling/setting aside the order and the case was fixed for 4.7.2005 for arguments. Thereupon, the case was fixed for 5.8.2005 for arguments and on the said date, Smt. Kamani Devi moved an application under Section 151 of the Code of Civil Procedure to recall the order dated 4.5.2005 and to allow her opportunity for adducing evidence.  However, that application was rejected on the same date and the case was fixed for arguments.

The contention of counsel for the petitioners that by closing the evidence of Smt. Kamani Devi, the evidence of all other petitioners, i.e., her three sons- S/Sri Amit Kumar, Nitin Kumar and Sachin Kumar was also closed illegally by the Court below is misconceived. The further contention that it was done presumably under a mis-notion that there was only one defendant in the suit as in fact the petitioners- defenadants � to � having been substitued as legal heirs and sons of late Ram Prasad Rastogi is also incorrect.

It is apparent from the records that paper no. 51-Ga was moved by Smt. Kamani Devi, the widow as well as by the three sons of the deceased late Raj Prasad Rastogi and that they were substitued as his legal heirs and representatives. Admittedly, the evidence (examination- in-chief) was submitted by them indicate that they were not defaulters and no rent was due on them but none of them came forward for cross-examination.  Even if Smt. Kamani Devi was was not coming in the witness box for cross examination, the petitioners could have come forward for giving evidence.  It is revealed from the records that Smt. Kamani Devi, the mother of the petitioners moved an application dated 4.5.2005 for recall of the order of closing her evidence.  The revision was filed against the order dated 5.8.2005 closing evidence of Smt. Kamani Devi.  The Court after hearing he petitioners and respondents held that the contentio of the revisinists that only Smt. Kamani Devi's evidence could have been closed by the Court in the circumstances and that the petitioners were entitled to give their evidence separately is not acceptable for the reason that they have moved before the Court that they want to give separate evidence apart from the evidence of Smt. Kamani Devi for which they may be given separate opportunity. The Court held that if they wanted to do so, they could have moved an application in this regard on the same day or the next day but they did not do so and preferred revision of the presumption that their evidence was also closed by the Court below and that the revision was also moved jointly by all of them. The Court came to the conclusion that revisionists-petitioners are the heirs and legal representatives of the deceased late Ram Prasad Rastogi and their interest was same in the case hence they cannot say that no opportunity was granted to them in the facts and circumstances of the case.  Rather their conduct gives strong support to the view that they want to delay the proceedings and obstruct the progress in the case, hence the appliation 102-4-a is not liable to be accepted and is rejected.

The conduct of the defendants is noted by the revisional Court in its order dated 3.8.2006 that the tenants were living in a room attached with drawing room on the ground floor on rent of Rs.130/- per month.  Late Ram Prasad Rastogi, the original tenant according to the plaintiffs was a man of means doing business of Sarrafa and service, side by side.  It was noted by the revisional Court that according to the plaintiff-landlords, rent was not paid to him since January 1976 to 30.11.1999 amounting to Rs.4,680/- and being man of influence, the tenant got the landlord confined in lock-up by Police in order to usurp the shop by pressure tactics and that late Rame Prasad Rastogi refused to accept summons.  After notice through publication, ex parte order was passed after three years and thereafter defenant appeared on 2.5.2000 and moved an application for setting aside the ex parte order dated 3.4.2000, which was allowed on payment of cost of Rs.250/- vide order dated 17.5.2000.

Late Ram Prasad Rastogi did not pay the cost and sought adjournment after adjournments.  Ultimately, the plaintiff moved application dated 13.9.2000 praying for ex parte decree on the basis of non-payment of damages. Even thereafter, no damages were paid and the original tenant submitted his written statement on 5.2.2001. On 22.2.2001, Sri Ram Prasad Rastogi died and the plaintiff moved substitution application dated 1.3.2001 for bringing his heirs and legal represenatives on record.

Thereafter, the petitioners adopted delaying tactics. Notices sent by the plaintiff were returned unserved. Notices were refused.  For about 1 � years, the landlord tried his level best to serve the tenants with notice but they refused and they did not pay a single penny towards rent. After publication of notice in the news paper, they appeared and filed written statement, paper no. 57-Ga.  Date 16.11.2002 was fixed for evidence and issues were famed on 27.2.2003.

The plaintiff closed his evidence on 16.7.2003 and opportunited was afforded for leading evidence.  They sought about a dozen adjournments and stoop order was passed on 9.8.2004. Even on 11.10.2004, the defendants did not adduce evidence. Smt. Kamani Devi widow of original tenant produced two rent receipts for 1975 and 1976 on an affidavit and thereafter she remained absent. She sought repeated adjournments. Compelled with the aforesaid circumstances, the Court below closed her evidence vide order dated 4.5.2005. Defendants thereafter moved application for recall of the aforesaid order.

The Court below has further held that the defendants never paid any rent and for this reason the Court below closed evidence of the defendants vide order dated 5.8.2005. The defendnats took the advantage of lingering on the process of law and filed revision. The revision was dismissed vide order dated 5.11.2005.  Instead of challenging the aforesaid order before High Court, they preferred to move application, paper no. 102-Ga before the Judge, Small Causes Court for setting aside about 1 � dozen orders between 22.11.2005 and 23.3.2006 which was rejected on merits vide order dated 5.4.2006.  The revisional Court after hearing both the sides came to the conclusion that the revisionists were only trying to delay the proceedings with mal intention and there was no error in the order of the trial Court.  The revision was accordingly dismissed. It recorded a finding of fact that after the death of the original tenant on 22.2.2001, paper no. 57-Ga was moved by his widow Smt. Kamani Devi and three sons signed the same. Statement on affidavit was submitted by Smt. Kamani Devi on behalf of all of them, paper no. 74-Ga, hence it is incorrect to say that no opportunity to give evidence was given to them or that their case has not been considered as they were not party in the J.S.C.C suit and that U.P.Act No. XIII of 1972 is a special Act which provides special procedures for conducting cases, as such, it is not governed by normal procedure provided under any other Act.

The Court also considered the contentions of the petitioners that their conduct before the Court below is not aminiable to judicial scrutiny by the revisional Court.  The revisional Court held that in fact they were debarred from giving evidence by the Court because of their conduct which was found not to be bona fide as they did not avail the opportunity and took several dates but did not come forward for evidence and cross-examination and that their conduct in the revision was also not fair. The revisional Court concluded that in the aforesaid circumstances, the court below did not commit any illegality in law or on facts in the order dated 5.4.2006 passed in the suit.

  The revisional Court has recorded cogent reasons for dismissing the revision of the petitioners and there is no infirmity or illegaly in the impugned orders warranting interference in writ jurisdiction.

It is evident from record that the evidence of the petitioners was closed due to non appearance and the they adopted delaying tactics by moving application after applications.  Their conduct was not bona fide and mal intention is apparent on the face of record.  No one can be allowed to misuse process of law which results in pendency of the case for unlimited period.  The instant writ petition is also misuse of process of law and is liable to be dismissed on this ground alone.

Accordingly, the writ petition is 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 with the sole intention of lingering the disposal of case, 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 petitioners will also pay cost of Rs.10,000/- (Rupees Ten Thousand) which shall be deposited by the petitioner before District Judge, Moradabad 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 petitioners fail to make payment of the aforesaid amount, the same shall be recoverable as arrears of land revenue.

Dated 17.1.2007

kkb


Copyright

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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