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SHITALA PRASAD versus ASHWANI KUMAR SHAH AND OTHERS

High Court of Judicature at Allahabad

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Shitala Prasad v. Ashwani Kumar Shah And Others - WRIT - A No. 27220 of 2006 [2007] RD-AH 1644 (1 February 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 counsel for the parties.

Since common questions of law and facts are involved in these connected petitions, they are being disposed of by this common judgment treating Civil Misc. Writ No. 27220 of 2006 as the leading case which has been filed by Sri Shitla Prasad S/o late Sri Baijnath Prasad  R/o A/3/2/3, Bhagatpuri Colony, Mohalla Kathuapura, Varanasi against Sarvasri Ashwani Kumar Shah son of Sri Rajendra Shankar Shah resident of house no. K-47/3-343 Mohalla Katuwwapura, Varanasi, respondent nos. 1 to 3. By these petitions, the validity and correctness of orders dated 19.4.2005 and 28.4.2005 passed by Sri Baleshwar Prasad, Additional District Magistrate, Civil Supplies/Rent Control and Eviction Officer, Varanasi in case no. 37 of 1999 under Section 16 of U.P. Act No. XIII of 1972 have been challenged. The orders impugned in the Writ Petition have been appended as Annexures 5, 6 and 11 to it. The petitioner in this petition has prayed for quashing the order and judgment dated 3.5.2006 passed by the Additional District Judge/Special Judge (S.C./S.T.) Act in Rent Revision No. 45/2005, Annexure 14 5o the writ petition and has also prayed for a direction to the respondents not to evict the petitioner from Shop No,.2 in the premises K-47/1, Mohalla Katuwapura, Varanasi and not to give effect to the  impugned orders.  

The connected Civil Misc. Writ Petition No. 26149 of 2006 has been filed by Sri Pramod Kumar Verma against Ashwini Kumar Shah, petitioner in the aforesaid Writ Petition No. 27220 of 2006 and Sri Upendra Kumar Nagar, aforesaid/respondent no. 2 and Sri Shitla Prasad.  

By order dated 19.4.2005 the shop in dispute situate on the ground floor of premises no. 47/01, Kathuapurea, Varanasi, which was allegedly converted illegally into two shops was declared to be vacant.    

Dispute in these petitions relate to a shop situate on the ground floor of premises no. K-47/a, Mohalla Katuwapura, Varanasi, which originally belonged to Sri Raghunath Prasad, who was owner and landlord of the entire house. Sri Raghunath Prasad executed a registered Gift Deed dated 9.1.1982 transferring western half portion of premises no. K-47/1 in favour of his daughter Smt. Sudha Rani Jaiswal who became owner and landlady of the said portion.

Smt. Sudha Rani Jaiswal transferred a portion of House No. K-47/1 admeasuring 1508 square feet which included the shop in dispute by means of a registered sale deed dated 11.8.1998 in favour of Sri Ashwani Kumar Shah.

It is alleged that one Sri Amar Nath, who was tenant in a big shop on the ground floor of the premises, in question, died on 4.4.1993 leaving behind Sri Tung Nath and Sri Kailash Nath, his two sons as his legal heirs and representatives upon whom the tenancy devolved after the death of original tenant.

Sri Ashwani Kumar filed an application dated 17.6.1999 under Section 16(i)(b) read with Section 12 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''U.P. Act No. XIII of 1972 before the Rent Control and Eviction Officer supported by an affidavit stating therein that the building in dispute is in dilapidated condition and may fall at any time, as such, he requires the same for reconstruction and personal use for business.  He denied the tenancy of Sri Shitla Prasad in the shop in dispute.

Thereupon, one Sri Upendra Kumar Nagar is alleged to have moved an application dated 28.6.1999 for allotment of the shop allegedly in connivance with Sri Ashwani Kumar.

The Rent Control Inspector is said to have submitted report dated 28.6.1999 behind the back of the tenants against them.

The claim of the petitioner- tenant is that on coming to know about the report dated 28.6.1999 submitted by Rent Control Inspector, he filed objection stating therein that he is an old tenant and there are six co-owners and landlords.

The Rent Control and Eviction Officer passed order dated 19.4.2005 declaring vacancy in respect of the premises in question and further directed for notification/ publication of vacancy.

The petitioner moved an application dated 17.1.2005 with the prayer that the landlord be directed to produce sale deed dated 11.8.1998 which was rejected by order dated 10.3.2005. The petitioner also appears to have earlier moved an application dated 22.11.2004 for amendment in his application for allotment, which was rejected by the Presiding Officer vide order dated 29.12.2004. The review application dated 25.1.2005 moved by the petitioner was also rejected vide order dated 10.3.2005.

Aggrieved by the order of declaration of vacancy, the petitioner preferred Civil Misc. Writ No. 40686 of 2005 before this Court which was dismissed vide judgment and order dated 21.6.2005 on the ground that against the order of release, the revision had already been filed, as such, notification of vacancy cannot be challenged and looked into.

Revision No. 45 of 2005 filed by the petitioner was connected with revision filed by Sri Pramod Kumar, petitioner in the connected Civil Misc. Writ No. 26149 of 2006.  Revision of the petitioner has been dismissed vide impugned order dated 3.5.2006, aggrieved by the order, the petitioner has challenged the same in this petition.

The contention of counsel for the petitioner is that according to the respondent no. 3- landlord, he had purchased part of the house no. K 47/1 by registered sale deed dated 11.8.1998 from Smt. Sudha Rani Jaiswal which originally belonged to Sri Raghunath Prasad, father of Smt. Sudha Rani Jaiswal.  In this regard, he referred to averments made in paragraphs 4 and 5 of the Counter Affidavit.  

Referring to records, it is stated by the counsel for the petitioner that Sri Rajendra Shankar Shah, father of respondent no. 3 filed Original Suit No. 330 of 1982 in the Civil Court challenging the transfer of the property in dispute by Sri Raghu Nath Prasad in favour of his wife and daughter Smt. Sudha Rani Jaiswal and lost the litigation up to appellate stage. however, Sri Rajendra Shankar Shah, father of respondent no. 3 succeeded in getting power of attorney in his favour from Smt. Sudha Rani Jaiswal and transferred the said house no. K 47/1 in four parts to his two sons and two daughters in law in 1998.  In fact, Sri Rajendra Shankar Shah purchased the house no. K 47/1 after failure to get the possession of the same through Court cases. In this regard, he drew the attention of the court to the averments contained in paragraphs 4,5 and 6 in the rejoinder affidavit and contended that in paragraph 6 of the release application, the landlord had pleaded that he recently came to know that previously Sri Amar Nath was in occupation of one big shop as tenant and after his death, the heirs of late Amar Nath partitioned the said shop by constructing a partition wall without consent and express permission of the landlord. Thereafter he permitted the opposite party nos. 1 and 2 to occupy the premises in dispute as sub-tenants.. He urged that there is neither any reliable personal direct evidence of Sri amar Nath, the alleged erstwhile tenant, being actually a tenant of the shops in dispute nor to prove the relationship of lessor by the alleged tenant and the lessees nor the possession of the shops in dispute was parted with by the alleged tenant Sri Amarh Nath in favour of alleged sub-tenant (both petitioners in these writ petitions), as such, the order of declaration of vacancy and order of release are illegal, unsustainable and liable to be quashed. In support of his contention he placed reliance on a decision of Hon'ble the Apex Court in Resham Singh V. Raghubir Singh-2000(40) ALR-636.

He also relied upon the entries in the assessment register and submitted that the respondent no. 3 filed copies of the extract of assessment registers from 1.4.76 to 31.3.98 (Annexure C.A.1) and from 1.4.76 to 31.3.2003 (Annexure C.A-2) but in the said copies of assessment registers, the number of shops is not mentioned to be in the possession of Sri Amar Nath and both the petitioners.   Further, according to the finding recorded by the trial Court, the order of declaration of vacancy, Sri Amarnath died in 1983 after vacating the shop in dispute still his name ( i.e. the name of a dead person) continued to be recorded till 2003 for more than 20 years which also looses the evidenciary value of the aforesaid extracts of assessment register, as such, they are proved to be irrelevant.

The counsel for the petitioner next contended that the respondent no. 3 malafiedely, dishonestly and intentionally made efforts to create false evidence in the shape of notice by Smt. Sudha Rani Jaiswal from Jabalpur through a counsel in Varanasi.  He urged that a perusal of the alleged notices dated 12.5.80 and 31.1.1981 reveals that Sri Amar Nath, a dead person  was mentioned as tenant of two shops which falsifies the claim of the respondent no. 3 that late Amar Nath was tenant of one shop and after his death his heirs partitioned it into two shops.

As regards dilapidated condition of the house, he urged that no finding has been recorded by the trial Court on this issue and the revisional Court has only observed that the building is about 100 years old. In this regard he drew the attention of the court towards Section 16(1)(b) of U.P.Act No. XIII of 1972 and Rule 13(3) of the Rules framed thereunder requiring satisfaction of the District Magistrate in case of release for demolition and re-construction.  He also contended that Rule 17 of the Rules framed under U.P. Act No. XIII of 1972 mandates that the order should be passed in the manner prescribed under the Act and the Rules.  In support of this contention he placed reliance on a decision of Hon'ble Supreme Court in A.K.Roy and another V. State of Punjab and others - A.I.R. 1986 SC-2160.  He also contended that there is no finding of the trial Court on the question of bona fide and genuine need of the landlord.

In so far as report of Rent Control Inspector is concerned, he urged that the Rent Control Inspector prepared his report on a blank paper without getting signatures of the petitioner.  The alleged signatures of the petitioner are forged.   There is manipulation and alteration in the alleged statement of the petitioner.  He drew the attention of the Court towards Annexure S.A.2, which is petitioner's affidavit dated 23.11.1998 filed by the respondent no. 3 himself before the trial Court which reveals that Smt. Sudha Rani Jaiswal had been continuously accepting rent from the petitioner till July 1998 and money order of rent for August, Septermber, 1998 was refused on 10.11.1998 apparently after executionof sale deed dated 11.8.1998 by Smt. Sudha Rani Jaiswal in favour of respondent no. 3.

No other point has been argued by the counsel for the petitioner.

Thus, briefly stated, contention of counsel for the petitioner is that there is no evidence on record that the building in dispute is in dilapidated condition and application for release under Section 16 of U.P. Act No. XIII of 1972 was not at all maintainable. He disputed the title of Sri Ashwani Kumar and urged that the Courts below have committed gross illegality in admitting Sri Ashwani Kumar as owner and landlord of house no. 47/1 Katuwapurwa, Varanasi; that the Rent Control Inspector had recorded the statement of Sri Ashwani Kumar and no statement of tenants was recorded, the report was prepared behind their back which lacks detail about the condition of the building; that Sri Ashwani Kumar Shah being subsequent purchaser of the disputed accommodation in 1998, could not have any knowledge about the tenancy of the petitioner and the release application was moved on surmises and conjectures and that there is no material on record to show that the shop, in question, was previously one shop and by making alteration, it was divided and converted into two shops and that Sri Pramod Kumar and the petitioner are sub tenants.  He, therefore, branded the finding recorded by the Courts below in this regard as arbitrary and fallacious.

Further  that Sri Ashwani Kumar Shah is running his own independent business at Nichi Bagh in a big shop and has no bona fide need of the shop in dispute and that on the questions of bona fide need and comparative hardship, there is no whisper in the impugned judgments in tis regard passed by the Courts below.

He also contended that the death certificate of late Sri Amar Nath indicates that he died in 1983 but there is no evidence on record that he was occupying the shop in dispute as tenant. He urged that the impugned judgments passed by the Courts below being illegal, arbitrary and without jurisdiction, they are liable to be quashed by this Court.

No other point has been argued by the counsel for the petitioner.

Per contra, counsel for the respondents contended that it is evident from record that Sri Amar Nath was tenant; Sri Tung Nath and Kailash Nath carried on the business in the said shop in the name and style of M/s. N.G. Traders; Sri Tung Nath son of Sri Amar Nath availed cash credit facilities in his name for Rs.25,000/- from State Bank of Bikaner and Jaipur to which Sri Paras Nath- his brother and Sri Amar Nath- his father stood as guarantor; that recovery proceedings had been initiated by the Bank and the suit was decided on 22.8.1989.  He, therefore, urged that it is clear from these documentary evidences that sons and heirs of Sri Amar Nath, original tenant were continuing as tenant till 1989 and Sri Shitla Prasad was not at all in picture till 1989.

He vehemently urged that Sri Shitla Prasad failed to prove that he was lawful tenant and the Courts below have recorded concurrent findings of facts against Sri Shitla Prasad which should not be disturbed in the writ jurisdiction.

I have  heard counsels for the parties and have also perused the record.

Perusal of assessment registers from 1.4.1976 to 31.3.1998 and 1.4.1976 to 31.3.2004 reveals that the name of Sri Amar Nath is mentioned at Sl. No. 13,  from which it is crystal clear that he was tenant.  From the record, it is also clear that Sri Tung Nath son of Sri Amar Nath and Sri Kailash Nath carried on the business in the said shop in the name and style of M/s. N.G. Traders; that for want of fund for carrying on aforesaid business, Sri Tung Nath availed cash credit facilities in his name for Rs.25,000/- from State Bank of Bikaner and Jaipur for which Sri Paras Nath and Sri Amar Nath were guarantors and that State Bank of Bikaner and Jaipur instituted suit no. 332 of State Bank of Bikaner and Jaipur v. N.G. Traders for recovery of Rs.24,280.90 for non-payment of amount of loan which was decided on 22.8.1989.  

These facts clearly show that sons and heirs of Sri Amar Nath, the original tenant were continuing as tenant till 1989 and the petitioner- Sri Shitla Prasad was not the tenant, at least till 1989.

A perusal of Annexure C.A. 4 to the Counter Affidavit further reveals that notices dated 16.11.1978,12.5.1980 and 31.1.1981 were sent through Sri Deo Murti Pande, Advocate on behalf of Sri Raghu Nath Prasad, the erstwhile owner and landlord to Sri Amar Nath tenant for arrears of rent. Annexure C.A. 5 contains notice dated 30.10.1981 sent by Sri Raghu Nath Prasad, the erstwhile owner and landlord to Sri Amar Nath, the original tenant intimating the factum of execution of gift deed by him in favour of his daughter Smt. Sudha Rani Jaiswal and instructing him to pay rent to the landlady.  

It is further apparent from record that Smt. Sudha Rani Jaiswal was residing at Plot no. 79, Saraswati Colony Cherital, Jabalpur, Madhya Pradesh and in view of unawareness of the factum of death of Sri Amar Nath on 4.4.1983, she sent notice dated 13,3.1990, appended as Annexure C.A.6 to the Counter Affidavit to Sri Amar Nath by registered post demanding arrears of rent.

It appears from record that sometime in 1992-93, S/Sri Tung Nath and Kailash Nath, sons of original tenant of late Sri Amar Nath illegally partitioned and converted the shop in their occupation into two shops.  One  of the partitioned portion of the shop appears to have been sub-let to Sri Shitla Prasad, the petitioner and the other portion of the shop was sub-let to Sri Pramod Kumar, the petitioner in the connected writ petition without consent of landlady Smt. Sudha Rani Jaiswal.

It appears that thereafter S/Sri Shitla Prasad and Pramod Kumar  obtained certificate of registration in Form No. 15 from the Sales Tax Department for the period 1992-93, which is apparent from aforesaid Form 15 contained in Annexure C.A.7.  It is apparent from above records that both the petitioners are not lawful tenant of the shop, in question rather they are unauthorized occupants as they have been allowed to occupy the shop, in question by the heirs of original tenant Sri Amar Nath without any consent of owner and landlady Smt. Sudha Rani Jaiswal.  They also have no order of allotment in their favour.

It appears from record that Sri Upendra Kumar Nagar, respondent no. 2 filed allotment application dated 19.4.1999 for allotment of the shop originally held by late Sri Amar Nath.

A perusal of report of Senior Inspector (Rent) dated 28.6.1999 shows that the report was corroborated by two witnesses of the same locality, namely, S/Sri Raj Kumar Bhatia and Dipendra Kumar Jaiswal.

It is also evident from record that the release application under Section 16(1)(b) of U.P. Act No. XIII of 1972 was filed by Sri Ashwani Kumar Shah, the landlord on 17.6.1999 but no objection/written statement was filed by the petitioners for about 2 years.  The petitioners were allowed adjournments on payment of cost but perusal of record indicates that cost  was also never paid by them.

Perusal of application for allotment dated 31.7.2001, contained in Annexure 4 to the writ petition, further indicates that Sri Shitla Prasad, petitioner admitted in the affidavit that he had been tenant since 1975.  The affidavit sworn by Sri Shitla Prasad in support of the writ petition indicates that he was 45 years old in 2006.  Thus, if the version of Sri Shitla Prasad is accepted that he entered into the tenancy in 1975, from his own sowing, it is clear that he was 14 years of age in 1975, i.e., he was minor at that time and a minor cannot enter into any contract or create tenancy in his favour in view of settled principle of law laid down in Abdul Wali V. State of U.P. and another-1960 A.L.J-927.  Moreover, Sri Shitla Prasad claims himself to be tenant since 1975 of Smt. Sudha Rani Jaiswal whereas the record shows that she became owner and landlady in 1981 after execution of gift deed in her favour by Sri Raghu Nath Prasad. Thus, the case of the petitioner-Sri Shitla Prasad that he was tenant of Smt. Sudha Rani Jaiswal since 1975 is absolutely false on the face of record.

It is also interesting to note from the own document filed by Sri Shitla Prasad, petitioner in the shape of application for allotment dated 16.8.1989, contained in Annexure S.A.19 to the Supplementary Affidavit where he has averred that the shop in question had been under joint tenancy of his father Sri Baij Nath Prasad and Sri Kailash Nath Keshar, son of original tenant Sri Amar Nath and that Sri Kailash Nath, son of original tenant excluded himself from joint business of shop, in question; his father Sri Baij Nath Prasad became old, as such, he was looking after and dealing with his ancestral business.  In his reply dated 6.8.1999 sent through Advocate, he nowhere stated about his independent tenancy either from Sri Raghu Nath Prasad or from Smt. Sudha Rani Jaiswal. Thus, it is clear that Sri Shitla Prasad is in illegal occupation of the shop, in dispute, without the consent of the previous landlady Smt. Sudha Rani Jaiswal or the present landlord.

It further appears from perusal of record that the Rent Control and Eviction Officer, after considering the entire materials on record and hearing counsel for Sri Ashwani Kumar Shah, the landlord rightly declared vacancy.

Thus, from the record, it is crystal clear that the petitioners in both the writ petitions have miserably failed to prove that they are lawful tenants of the shop, in dispute with the consent of landlord/landlady and they illegal occupants as they do not have any order of allotment in their favour. Rather they occupied the shop, in dispute sometime in 1992-93 by taking possession from heirs of original tenant Sri Amar Nath who do not fall within the ambit of word 'family' as defined in Section 3(g) of U.P. Act No. XIII of 1972.  Definition, as contained in Section 3(g) of the aforesaid Act runs as under :-

''family' in relation to a landlord or tenant of a building means, his or her

(i) spouse

(ii) male lineal descendants,

(iii) such parents grand parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her

and includes, in relation to a landlord, any female having a legal right of residence in that building."

''family' in relation to a landlord or tenant of a building means, his or her

(iv) spouse

(v) male lineal descendants,

(vi) such parents grand parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her

and includes, in relation to a landlord, any female having a legal right of residence in that building."

Thus, the petitioners are clearly unauthorized occupants as neither they are members of family of the original tenant nor does there exists any order of allotment in their favour.  In fact, the vacancy occurred in view of provisions of Sections 12(1)(b), 12(2) and 13 of U.P. Act No. XIII of 1972 and the Courts below have not committed any illegality or infirmity in declaring the vacancy.  I am fortified in my aforesaid view by the decisions rendered in Jagjit Singh V. District Judge Dehradun and others-1990(1) ARC-517; Lachman Prasad Recharia V. IV A.D.J. Hamirpur-1990(1) ARC-497 and Ramesh Chandra v. Prescribed Authority- 1994(1) AWC-1426.

So far as contention of counsel for the petitioners that inspection report of Senior Inspector (Rent) was filed without hearing them is concerned, the revisional Court has recorded a specific finding in this regard, which is extracted below :-

" ....no such ground assigned by the revisionist that signature of Raj Kumar Bhatiya and Dipendra Kumar are forged; and this question was also not challenged before the Court below by the application and rebuttal by the alleged person; and it is also significant to note here that statement of Shitla Prasad dated 15.6.99 and also statement of Pramod Kumar Verma which is part of the record of lower Court, is also alleged by revisionist, but on careful perusal of these statements, signature of these witnesses and presence of these witnesses at the time of statement of Ashwani Kumar Shah not denied before the Court below and no such ground of revision assigned by the revisionists and it is also significant that affidavit by alleged person has been filed on behalf of respondent no. 1 with photograph not challenged by the revisionist; hence plea, allegation and challenge of signature first time before this Court by an application which is not part og ground and not challenged before the Court below; hence plea by the revisionist Shitla Prasad regarding the signature of Raj Kumar Bhartiya and Dipendra Kumar is not tenable and alleged affidavit vide paper no. 23-C is not admitted and reliable and is liable to be rejected."

The petitioners have not shown how they were inducted as tenant in the shop in dispute when admittedly the original tenant of the shop was late Amar Nath.  They being unauthorized occupants cannot challenge the need and hardship of the landlords or the fact whether the building is in dilapidated condition or not.

In view of settled law that a person in unauthorized occupation seeking allotment has no right to contest the claim of the landlord for release of the accommodation, the petitioners have no legal right to challenge the impugned orders.  This view of mine finds support from the decisions rendered in Smt. Shanti Devi v. Incharge District Judge, Bijnor and others-1999(1) ARC-308; Talib Hasan V. 1st Additional District Judge, Nainital and others-1986(1) ARC-1 (F.B.); Vijay Kumar sonkar v. Incharge District Judge and others-1995(2) ARC-1 (SC); Naraini Devi V. Mahendra Kumar Tripathi-1998(1) ARC-153; Ram Narayan Sharma v. Shakuntala Gaur (c)-2002(2) ARC-1; Jeep Industrial Syndicate Ltd. Allahabad V. Vinod Kumar Agarwal and others- 1997(1) ARC-396; Suraj Bhan Jain v. 1st A.D.J. Agra -1997(2) ARC-592; Khunni Singh V. District Judge, Kanpur- 1995(2) ARC-390; Harwansh V. ADJ Saharanpur-2004(2) ARC-84; Debi Saran V. RC & EO Fatehpur and others-2004(2) ARC-86 and Daya Shankar V. R C&EO -2004(2) ARC-174.

In view of what has been discussed above, the that Rent Control and Eviction Officer rightly declared the shop, in dispute, as vacant and has released the same in favour of the landlord considering his genuine and bona fide need. The revisional Court also has rightly affirmed the finding recorded by the Rent Control and Eviction Officer.

Accordingly, both the writ petitions fail and are dismissed. The petitioners are directed to vacate the shop, in dispute, within a period of two months from today and handover peaceful possession to the landlord failing which the landlord will be at liberty to evict them in accordance with law by coercive process with the aid of local Police.

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 an unnecessary, vexatious, false and 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 the tenant shall pay Rs.1200/- per month as compensation for use and occupation of the shop in dispute w.e.f. 17.6.1999, the date of filing of the suit till 31.3.2007 i.e., the time granted by this Court to the tenants to handover peaceful vacant possession of the shop to the landlords with 9% simple interest. Further, apart from payment of arrears of rent, if any, the petitioner will also pay cost of Rs.25,000/- (Rupees Twenty Five Thousands) which shall be deposited by the petitioner before District Judge, Varanasi within two months from today. The compensation, arrears of rent as well as the cost so deposited can be withdrawn by the respondent-landlords without furnishing any security within two months from the date of deposit. In case the petitioner fails to make payment of the aforesaid amount or fails to handover peaceful possession of the accommodation in dispute to the landlords within the aforesaid period, he shall be liable to be evicted with the aid of local Police and the amount, aforesaid, shall be recoverable as arrears of land revenue.

Dated 1.2.2007

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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