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SHAMIM AHMAD AND ANOTHER versus A.D.J., COURT NO. 1 ALLAHABAD AND OTHERS

High Court of Judicature at Allahabad

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Shamim Ahmad And Another v. A.D.J., Court No. 1 Allahabad And Others - WRIT - A No. 6216 of 2007 [2007] RD-AH 1876 (6 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 petitioner and perused the record.

          Petitioners are tenants of a part of accommodation bearing Municipal no. 628 Bahadur Ganj, Allahabad, which is in dispute.

Mohd. Ishad (since deceased) the grand father of respondent nos. 2 to 6 filed an application, registered as Rent Case No. 137 of 1981 under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction )Act, 1972 (hereinafter referred to as ''U.P. Act No. XIII of 1972') on the ground

of personal bona fide need.

After exchange of affidavits, the Release application  was rejected by the Prescribed Authority vide order dated 30.4.1982.

Aggrieved by the aforesaid order, the respondent-landlords filed Rent Appeal No.295 of 1982 under Section 22 of U.P. Act No. XIII of 1972, which was allowed vide order dated 16.8.1983 passeed by the IIIrd Additional District Judge, Allahabad.

Aggrieved by the order dated 16.8.1983, the petitioner preferred Civil Misc. Writ No. 13734 of 1983 before this Court which was disposed of vide judgment and order dated 19.3.1999  with the following observations :-

" Hon'ble Yatindra Singh, J

....In the circumstances of the case, the appellate authority ought to have adjourn the matter and give opportunity to the tenant to give evidence. It is in view of this reason that the order dated 2.9.96 is hereby quashed. The matter is remanded back to appellate authority for re-decision on merit after giving opportunity to the petitioner-tenants to file any affidavit which they wish to file in rebuttal of the evidence filed by the landlord earlier.  Needless to add the appeal will be decided expeditiously.  The parties will appear before the District Judge, Allahabad on 19th April, 1999. the District Judge may devide the appeal himself or may transfer it to any other Additional District Judge for decision. The parties will also not take any unnecessary adlurnment and may cooperate with the proceedings of the case.

With the above observations, the writ petition is finally disposed of.

Dated March 19, 1999  .                                              Sd/- Illegible"

  The case of the petitioners is that during the pendency of the aforementioned writ petition, respondent nos. 7 and 8 were impleaded as respondent-appellants and abatement application dated 2.9.2002 supported by an affidavit was also filed by them. The petitioners filed detailed objection dated 10.2.2003 to the aforesaid application. However, by the impugned order dated 2.11.2006, substitution application has been allowed.

Aggrieved, the petitioners have invoked writ jurisdiction by means of the instant writ petition.

Contention of counsel for the petitioners is that in Civil Misc. Writ No. 35860 of 1996, the name of Sri Gulzar Ahmad, appellant no. 7 was neither deleted nor any substitution application was moved nor his heirs were impleaded in his place and despite knote and knowledge, no substitution application had been filed.  Thus the appeal stood abated and the Court below has committed a manifest error apparent on the face of record in allowing the substitution application.  

On the facts and in the circumstances of the instant case, I am of the view that the Court below has passed a reasoned order, which is apparent from the operative part of the order impugned, which is as under :-

During the argument it has been pointed out that the learned Court below (Prescribed Authority) decided the  case on 30.4.82 and appeal against it was decided on 16.8.1983. The respondent- tenant went to Hon'ble High Court in writ petition and the case was remanded vide order dated 25.3.1996. Earlier to it others whose name has been mentioned above had died.  During the pendency of the writ petition which was filed by the tenant/respondent it was his duty to have moved the substitution application but probably that was not done as stated by the learned counsel for the respondent as he was not aware about the death of other appellants.  In the above circumstances and in view of the rulings relied upon by the parties and in view of the fact that in the Rent Control Act the case cannot abate, I am of the view that 27-A should be allowed."

 

In these circumstances, I am of the view that there is no illegality or infirmity in the order impugned as the petitioner-tenants themselves did not move any substitution application and the case cannot abate under the provisions of U.P. Act No. XIII of 1972.

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 this writ petition has been filed against an inter locutory order allowing the substitution application with a view to linger on the proceedings, 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.5,000/- (Rupees Five Thousand) which shall be deposited by the petitioners before District Judge, Allahabad within two months from today. The 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 petitioners fail to make payment of the aforesaid amount, the same shall be recoverable in accordaince with law.

.

Dated 6.2.2007

kkb


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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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