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Smt. Durga Devi @ Smt. Ramabai And Others v. District Judge, Lalitpur And Others - WRIT - A No. 18360 of 2007 [2007] RD-AH 6468 (9 April 2007)


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Court No. 7

Civil Misc. Writ Petition No. 18416 of 2006

Vasudeo Gupta Vs. Sri Krishna Kant Gupta and others

Hon'ble Prakash Krishna, J.

Sri Krishna Kant Gupta, the respondent no. 1 (since dead) instituted a SCC suit No. 74 of 1994 against District Cooperative Federation Limited, Moradabad and five other persons including the present petitioner for ejectment, recovery of arrears of rent and damages on the plea that the property in dispute was taken by District Cooperative Federation on monthly rent of Rs. 103-50 paise who ( defendant no. 1), without  written permission, knowledge or consent of the landlord, divided the disputed accommodation in small rooms by raising walls and also raised latrine and thus diminished the value and utility of the building in question and dis-figured it and  sub-letted it to defendants  no. 2 to 6. In the said suit, a written statement by the defendant no. 1 was filed and order to proceed  exparte against the rest of the defendants was ordered on 8-7-1996. The defendant no. 1 failed to make the deposit, as required under Order 15 Rule 5 CPC and its defence was struck off. An application by the present petitioner, who was defendant no. 4 in the suit,  to recall the order dated 8-7-1996  to proceed exparte was filed. The said application was dismissed and thereafter the suit was decreed exparte on 17-12-2002.

To set aside the exparte decree dated 17-12-2002, an application on 24-12-2002 was filed by the petitioner which was numbered as Misc. Case No. 2 of 2003. The said application was also dismissed in default.

Thereafter, the present petitioner filed an application to restore the Misc. Case No. 2 of 2003. This application was also dismissed in default on 19-2-2005.

The  petitioner then filed an application to recall the aforesaid order which was numbered as Misc. Case No. 26 of 2005. It is stated that the said application is still pending consideration.

In the meantime, an application was filed before the trial court to stay the execution of the decree which  was rejected by the order dated 30-5-2005 on the ground that the defendants are in collusion with each other and the defendants no. 2 to 6 are sub-tenants of the defendant no. 1 and they are bound by the decree against the chief tenant.  The defence of the defendant no. 1 was struck off on 22-8-1998 and and as such no case for stay has been made out.  This order has been confirmed in SCC  revision no. 44 of 2005 by the court below, by the impugned order.

Smt. Rama Goel, learned counsel for the petitioner submits that  an opportunity of hearing be afforded to the petitioner and  the writ petition be disposed of by directing the trial court to decide the said restoration to restoration application for setting aside the exparte decree and till then, the execution proceedings be stayed.

In response, Sri Dhan Prakash, learned counsel for the contesting respondents submits that the present petition is nothing but an abuse of the process of  the court and the petitioner, who has been held to be sub-tenant, is in collusion with the other defendants, does not deserve any sympathy of this Court. It is nothing but an abuse of  the process of the court.

I have given careful consideration to the respective submissions of the learned counsel for the parties. To recapitulate the facts, it may be stated here that  the suit for ejectment was filed on the grounds of subletting , substantial damage to the building as well as default in payment of arrears of rent/damages. In the said suit, the defendant no.1, who was the tenant, failed to pay the rent/damages during the pendency of the suit, as required under Order 15 Rule 5 CPC and his defence was struck off and an order to proceed exparte was passed. An application was filed by the petitioner that the order passed by the trial court to proceed exparte against other defendants be recalled. The said application was rejected in default. Subsequently, the application filed by the petitioner to set aside the exparte decree was rejected in default and thereafter successive applications were filed by the petitioner and he got them dismissed in default.

The suit was filed in the year 1994 and it is not the case of either petitioner or the other defendants that they have paid or deposited any rent towards use and occupation of the disputed premises. The petitioner admittedly acquired the knowledge of the suit much prior to passing of the ex parte decree, but no defence or written statement was filed. He filed applications one after the other and got all of them dismissed in default. The conduct of the petitioner is indicative of the fact that he is not interested to fight out the litigation on merits, presumably he has no defence. From the conduct of the petitioner, it is crystal clear that the petitioner is abusing the process of the court and act of filing application after application and getting them dismissed in default is not bonafide one. There is no equity in favour of the petitioner.  The revisional court has considered the matter in great detail in paragraphs-6,7 and 8 of its judgment and has recorded a finding that no case for staying the execution of the decree has been made out. Grant of stay order is discretionary one. A person whose case is based on falsehood has no right to approach the court. Law courts are not meant for such persons.

It was held as follows in S.P.Chengalvaraya Naidu Vs. Jagannath, (1994) 1 SCC 1:

".....The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. A person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation...."

It is also important to note here that against the alleged exparte decree dated 17-12-2002, a revision no. 1 of 2003 was filed by the chief tenant, namely, District Cooperative Federation Limited and the present petitioner. An application for stay was filed therein by the present petitioner in that revision. The said revision was dismissed on merit on 18-8-2003 against which a writ petition was filed in this Court which was also dismissed on 21-1-2004. The decree dated 17-12-2002 thus stands confirmed by this Court and during this period, the execution of the decree was stayed.

In view of the facts stated above, it is evident that the petitioner is trying to stick with the disputed property by abusing the legal process. The decree dated 17-12-2002, having been confirmed by this Court, there is hardly any justification for not facilitating its execution. The revisional court has rightly observed that in case ultimately the exparte decree is set aside, the petitioner would be entitled to apply for restitution.

Filing of  application after application for recall is nothing but a device to some how keep the matter alive with no intention to get the matter decided on merits.

The petitioner has been successful to retain the possession of the disputed accommodation even without paying any rent for the last about 13 years. Filing of successive applications by the petitioner cannot, by any stretch of imagination,  be said to be a bonafide act. If such action of a litigant is approved, it would amount travesty of administration of justice. The Apex Court in N.V. Srinivass Murthy and others Vs. Mariyamma (dead) by proposed Lrs and others, JT 2005(6) SC 1, following its earlier decision in the case of  T.Arvindam Vs. T.V. Satyapal, 1978 (1) SCR 742, has held that in such cases heavy costs should be imposed.

In Salem Advocate Bar Association, Tamil Naidu Vs. Union of India, JT 2005 (6) SC 486, the Apex Court has observed that under Section 35 B of CPC an order may be made requiring the defaulting party to pay to other party  such costs as would, in the opinion of the court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of the suit or the defence. It is observed that judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded on the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. It has been further held that when Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the court in its discretion may direct otherwise by recording reasons thereof. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging , if any, or any other incidental cost besides the payment of the court fee. typing, etc.  

Taking into consideration the fact the petitioner has filed successive restoration applications, one after other, apparently to gain time and  has prolonged the litigation beyond its normal course of time and the fact that the exparte decree has already been confirmed by the revisional court in the revision in which the petitioner was one of the parties and also by the High Court, it is appropriate that a sum of Rs. 20,000/- (Rs. Twenty thousand only) be directed to be paid by the petitioner to the contesting respondent towards the cost of litigation.

The petitioner obtained the stay order from this Court on 4-4-2006 and remained in possession during this period without paying or depositing any amount towards damages for the use and occupation of the disputed premises, the executing court is hereby requested to proceed with the execution case forthwith and take appropriate steps to execute the decree dated 17-12-2002 with all speed and shall make an endeavour to get the petitioner or any other person, who may be found in possession, evicted in accordance with law.

Viewed from any angle, no case for interference under Article 226 of the Constitution of India is made out.  

The writ petition is dismissed with costs assessed at Rs. 20,000/- (Rs. Twenty thousand only).

Dated: 9-4-2007



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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