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Manoj Kumar Gupta v. A.D.J., Court No. 5 Ghaziabad And Others - WRIT - A No. 56641 of 2006  RD-AH 1477 (29 January 2007)
Hon'ble Rakesh Tiwari,J.
The case has been taken up in the revised list but counsel for the petitioner is not present. Heard Sri S. Shekhar, counsel for the respondents and perused the record.
From perusal of record, it appears that the petitioner is tenant of respondent no. 2. He is in possession of shop no. 3 in the premises no. 456 S.D.S Complex Turab Nagar Ghaziabad.
Respondent no. 2- landlord filed S.C.C suit no. 17 of 2005 against the petitioner for eviction from the shop in dispute claiming arrears of rent to the tune of Rs.43,750/-.
Tenant-petitioner contested the suit by filing written statement denying the plaint allegations and also moved an application dated 10.8.2006 for examination of the officials who issues receipt of acknowledgement of registry
The respondent-landlord also moved application dated 22.8.2006 under Order XV Rule 5 of the Code of Civil Procedure for striking off the defence of the petitioner.
Application dated 10.8.2006 of the petitioner was rejected by the trial Court vide order dated 31.8.2006. Thereafter, the petitioner-tenant again moved an application dated 5.9.2006 for filing of relevant documents.
By the impugned order dated 15.9.2006, defence of the petitioner has been struck off.
Aggrieved by the order dated 15.9.2006, the petitioner has invoked the writ jurisdiction by means of instant writ petition.
Counsel for the respondents states that in view of the facts stated above, the writ petition is not maintainable as the statutory remedy against the impugned order is revision under Section 25 of the U.P. Small Causes Courts Act. He further submits that the petitioner deliberately did not file revision with a view to by-pass the reporting of the caveat and to eliminate the respondent nos. 2,3 and 4 from opposing the interim prayer against the aforesaid orders.
The counsel for the petitioner has no answer to the contention of the counsel for the respondents with regard to statutory remedy under Section 25 of the U.P. Small Causes Courts Act.
From the aforesaid facts, it is crystal clear that the conduct of the petitioner is unfair which disentitles him for any discretionary relief in the writ jurisdiction, hence the writ petition is dismissed.
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 petitioner will also pay cost of Rs.5,000/- (Rupees Five Thousand) which shall be deposited by the petitioner before District Judge, Ghaziabad 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.
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