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MOHAMMAD NASIR versus A.D.J., COURT NO. 1 KANPUR DEHAT AND OTHERS

High Court of Judicature at Allahabad

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Mohammad Nasir v. A.D.J., Court No. 1 Kanpur Dehat And Others - WRIT - A No. 5544 of 2007 [2007] RD-AH 1963 (7 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 and perused the record.

The case of the petitioner is that Smt. Sarla Chaturvedi, respondent no.3 filed release application, registered as Rent Case No. 5 of 1995 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') against Nizam General Stores through its proprietor Sri Nizam Ahmad which was allowed by the Prescribed Authority vide judgment dated 22.10.1998.

The judgment passed by the Prescribed Authority was challenged in appeal no. 2 of 1998 preferred by Nizam General Stores, which was dismissed vide judgment dated 2.11.2006 by the Addl. District Judge, Court No. 1, Kanpur Dehat.

Thereafter, Sri Mohd. Nazir, the present petitioner filed an application before the Addl. District Judge, Court no. 1 Kanpur Dehat- respondent no. 1 for impleadment as respondnet claiming himself to be tenant of the premises in dispute, which was allowed vide order dated 18.1.2000.

The petitioner also moved application dated 23.3.2005 before the respondent no. 1 for remand of the case to the Prescribed Authority for affording opportunity of hearing to him.  Respondent no. 3- the landlady filed objection dated 29.3.2005 to the aforesaid application of the petitioner.

Respondent no. 3- the landlady was examined on 7.11.2000 by  respondent no. 1 who stated that she never visited Kanpur to file release application or any affidavit in support of the release application. It is alleged that the affidavits of the landlady- Smt. Sharla Chaturvedi were verified in the court compound of Kanpur Dehat on 12.9.2006 and 17.3.1998.

It is claimed by the petitioner that he moved application (paper no. 172-Ga) dated 2.12.2005 raising preliminary objection to the maintenabiity of the release application, which was rejected on 2.12.2005 itself.  He also filed his objection dated 9.12.2005 to the release application and thereafter filed his affidavit dated 14.12.2005.

By means of the instant writ petition, the petitioner has prayed for quashing of the impugned orders dated 2.11.2006 and 22.10.1998 which have been appended as Annexures 2 and 1 respectively. He has also prayed for a writ in the nature of mandamus directing the respondent no. 1 to remand the case to the Prescribed Authority.

A perusal of the impugned orders reveals that cogent reasons have been disclosed for allowing the release application.  The relevant portion of the order of appellate Court is as under :-

" ekS0 ukflj usa Loa; dks fdjk;snkj gksus dk eq[; vk/kkj Jherh ljyk prqosZnh ds ml c;ku ij j[kk tks c;ku vihy Lrj ij ekS0 ukflj ds Ik{kdkj cuk;s tkus ds izkFkZuki= ds laca/k esa vfHkfyf[kr fd;s x;s A Jherh ljyk prqZosZnh usa bl rF; dks Lohdkj fd;k fd ekS0 ukflj dks iz'uxr nqdku fdjk;s ij nh x;h vkt ls 30&40 o"kZ igys fdjk;s ij nh x;h A blh fujUrjrk esa ;g Hkh crk;k x;k fd uhps ds Hkkx esa eaxyh] lhrkjke xqIrk vkSj ukflj dks fdjk;s ij fn;k x;k A blla ;g Li"V gksrk gS fd iz'uxr edku uhps dk Hkkx ukflj] eaxyh vkSj lhrkjke dks fn;k x;k A bl oLrqfLFkfr dks eks- ukflj usa vius izfrokni=@tckcnkok rFkk 'kiFki= 173Xk ]174 x dks vihy Lrj ij izLrqr fd;k x;k crk;k gS A bl oLrqfLFkfr dks lat; dqekj prqZosZnh dh rjQ ls vius 'kiFki= 179x esa bl #Ik esa Li"V fd;k x;k fd ekS0 ukflj igys iz'uxr nqdku ds fdjk;snkj Fks] ekS0 ukflj ds lkFk nks vU; lhrkjke xqIrk o eaxyh izlkn jkor Hkh fdjk;snkj Fks mu yksxksa ds ikl dqy rhu nqdkusa Fkha A rhuksa yksxksa usa nqdkusa [kkyh dj nh vkSj vc rhuksa nqdkuksa dks rqMok dj ,d nqdku cuokbZ x;h vkSj eks0 ukflj ds dgusa ij muds iq= futke dks mDr nqdku esa fdjk;snkj j[kk x;k vkSj rc ls iz'uxr nqdku esa futke viuk dkjksckj dj jgk gS vkSj futke dh fdjk;snkjh gh mijksDr nqdku esa gS bl rF; ds leFkZu esa fl;kjke vkSj eaxyh izlkn dk 'kiFki= Hkh foi{kh dh rjQ ls vihy Lrj ij izLrqr fd;k x;k gs A ;gha ij bl rF; dk Hkh mYys[k lqlaxr gksxk fd vihykFkhZ dh rjQ ls tks Hkh fdjk;s dh ;k fctyh dh jlhn izLrar dh xbZ gSa og lHkh futke tujy LVksj Onkjk futke ds gh uke ls gSa A futke vgeg rFkk u;a Ik{kdkj eks0 ukflj dks firk iq= gksus dh fLFkfr esa rFkk vihykFkhZ ds vuqlkj gh ,d lkFk jgus dh fLFkfr esa ,oa vU; miyC/k rF;ksa ,oa lk{;ksa ds vk/kkj ij eks0 ukflj dk Lora= fdjk;snkj gksuk LFkkfir ugha gS A &&&"

 

 

From perusal of above findings it is clear that the petitioner has not proved his tenancy of the shop in dispute in his own right; but for this purpose has relied upon the statement of Smt. Sarla Chaturvedit which was given by her at the appellate stage on the application filed by the petitioner for impleading him as a party in the appeal. The Court noted the fact in the statement of the landlady Smt. Sarla Chaturvedi that petitioner was tenant of one of the shops 30-40 years ago along with S/Sri Mangli and Sita Ram, tenants of two other shops in the same buildings.  The Court also noted the fact that all three of them had vacated their shops in the building and thereafter three shops were converted into one big shop which was on the request of the petitioner given on tenany to his son Nizam who opened a shop in the name of ''Nizam General Stores'. Nizam, the son of the petitioner is doing his business in the shop in dispute since then and was paying rent to the respondent-landlady.  S/Sri Mangli and Sita Ram who were tenants with the petitioner before the conversion of the shop also gave their statements on affidavits in this regard which were not controverter by the petitioner Sri Nasir, father of Sri Nizam who has also filed writ petition no.5850 of 2007 challenging the same impugned order dated 2.11.2006 as in the present writ petition.

The Court below also considered the documents filed by the petitioner such as electricity bill and rent receipts which were in the name of Sri Nizam, proprietor of ''Nizam General Stores' and not in the name of Sri Naxir, the petitioner and held that since the petitioner, i.e., the father of Sri Nasir was living with Sri Nizam, his son hence he has failed to establish his independent business in the shop in dispute. It is also noticed that Sri Nizam also claims himself to be tenant of the same shop in dispute on the basis of same documents in the same proceedings doing independent business.  

The Court below has recorded a finding of fact on the basis of evidence and records that the petitioner has failed to establish his case that he is tenant of the shop in dispute.  It appears that since he is living with his son who is running the shop of ''Nizam General Stores' both are acting in collusion to create hurdles in flow of justice and to deprive the respondent-landlady from use and occupation of the shop in dispute.  The finding of fact recorded by the court below does not require any interference by this Court in the facts and circumstances as no illegality or perversity could be estbalished by the petitioner in the impugned order.

In these circumstances, I am of the view that the petitioner has no concern with the tenanted shop in dispute.  It is evident from record that the entire action on the part of the present petition is in collusion with the actual tenant against whom the release application has been allowed.

The writ petition is accordingly dismissed with costs.

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 is collusive one, 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.20,000/- (Rupees Twenty Thousand) which shall be deposited by the petitioners before District Judge, Kanpur Dehat within two months from today. The arrears of rent as well as the cost so deposited can be withdrawn by the respondent-landlady  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.

.

Dated 7.2.2007

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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