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DR.SHAMIM AHMAD versus SHIV NATH KHANDELWAL

High Court of Judicature at Allahabad

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Dr.Shamim Ahmad v. Shiv Nath Khandelwal - WRIT - A No. 2537 of 2007 [2007] RD-AH 987 (16 January 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 learned counsel for the petitioner and perused the record.

This writ petition has been directed against the orders dated 10.10.2006 passed by the District Judge, Mau in Civil Revision No. 34 of 2006 and dated 13.3.2006 passed by Judge, Small Causes Court/Civil Judge (J.D.) Mau in Misc. Case No. 207 of 1999

The case of the petitioner is that Smt. Kishan Dei Devi, mother of the respondent let out a shop situated in New Krishna Market Sindi Colony Mohalla Nyaz Mohammad Pura, Mau Nath Bhanjan, district Mau on 1.6.1983 to the petitioner on a monthly rent of Rs.110/- and that she had taken Rs.2500/- as advance towards rent.  

The rent was thereafter enhanced to Rs.125/- w.e.f. 1.8.1983 and the petitioner was served with a notice dated 3.1.1996 by the landlord with regard to payment of house tax and water tax etc.

It appears that as water tax and house tax was not paid by the petitioner-tenant, the landlord by another notice dated 11.12.1998 terminated the tenancy of the petitioner and also instituted suit no. 1 of 1996. The plaint was subsequently amended by the landlord. Thereafter, statement of plaintiff-landlord was recorded on 16.1.1999.  The aforesaid suit was decreed ex parte by the trial Court vide judgment dated 19.2.1999 and in pursuance thereof, execution case no. 13 of 1999 was filed against the petitioner.  

It is submitted by the counsel for the petitioner that the petitioner came to know about the execution proceedings only on 28.8.1999 and thereafter he got inspected S.C.C.Suit no. 1 of 1996 through his counsel on 1.9.1999. Thereupon, he moved application dated 21.9.1999 for setting aside the ex parte decree dated 19.2.1999 along with an application under Section 5 of the Limitation Act for condonation of delay. The application aforesaid  was registered as Case no. 207 of 1999.

It is also submitted by the counsel for the petitioner  that the petitioner moved application dated 10.11.2000 before the Court below for passing tender for accepting the amount of Rs.4000/- deposited in Misc. Case No. 76 of 1998 under Section 30 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the ''Act no. XIII of 1972') as security towards the decretal amount.

The trial Court summoned the record of Misc. Case No. 76 of 1998 and vide order dated 20.1.2001 fixed 17.2.2001 for hearing of case no. 207 of 1999.. The application of the petitioner moved by him under Section 5 of the Limitation Act was dismissed vide order dated 13.3.2006 by the trial Court.

Aggrieved by dismissal of his case no. 207 of 1999, thereafter the petitioner preferred revision no. 34 of 2006 against the order dated 13.3..2006 together with an application (paper no. 11-C)  for permission to deposit the entire decretal amount which too was  rejected by the revisional Court vide order dated 23.9.2006. Ultimately, vide judgment dated 10.10.2006 passed by the District Judge Mau, the revision has also been dismissed.

The petitioner aggrieved by the judgment dated 10.10.2006 has invoked the writ jurisdiction by means of the instant writ petition challenging the aforesaid orders dated 10.10.2006 passed by the District Judge, Mau in Civil Revision No. 34 of 2006-Dr. Shamim Ahmad V. Shiv Nath Prasad  and order of Judge Small Causes Court/Civil Judge Mau dated 13.3.2006 passed in Misc. Case No. 207 of 1999- Dr. Shamim Ahmad V. Shiv Nath Prasad  and the ex parte decree dated 19.2.1999 passed in Suit no. 1 of 1996-Shiv Nath Vs.Dr. Shamim Ahmad.

Counsel for the petitioner contended that the decree dated 19.2.1999 was procured by practising fraud on Court, as such, decree ought to have been set aside.  According to him, the ex parte decree for ejectment of the petitioner was passed without any notice of the amended plaint on the petitioner. He vehemently urged that the impugned orders are illegal, arbitrary and without appreciation of evidence on record, and they are liable to be quashed.

A perusal of impugned judgment passed by the revisional Court reveals that the revisional Court has considered the provisions of Section 17(1) of the Provincial Small Causes Court Act which provides that where the District Magistrate receives an intimation under Section 15(1) of U.P.Act No. XIII of 1972 in respect of vacancy of a building, an allotment order in respect of that building shall be made and communicated to the landlord within 21 days  from the date of receipt of such intimation and that where no such order is so made, the landlord may intimate to the District Magistrate the name of any person of his choice.  Consequent upon receipt of the intimation of the name of the tenant, the District Magistrate in these circumstances shall allot the building in favour of the person so intimated by the landlord.

Section 17(2) of U.P. Act No. XIII of 1972 further protects the right of the landlord to nominate if the remaining part of the building is in possession of the landlord.  Thus Section 17 of U.P. Act No. XIII of 1972 applies to both where the tenant was ceased to occupy or was expected to vacate and also applies even in case where vacancy has not occurred.

From the perusal of Section 17 of U.P. Act No. XIII of 1972 it is apparent that the provisions of this Section are mandatory in nature and binding.  The tenant has to deposit the decretal amount along with application, which could not have been deposited due to certain reasons.  

However, in the instant case, the revisionest- defendant neither deposited the decretal amount in cash nor moved any application for security. When he realized this mistake of not depositing the decretal amount in cash, he moved an application that the amount of Rs.4000/- deposited by him in Misc. Case No. 76 of 1998 under Section 30 of U.P.Act No. XIII of 1972 may be accepted as security money.  This application was moved by the petitioner after a period of one year of filing the revision.

The Court below further held that not only the application was moved after one year but also no deposit in cash was made as envisaged under the aforesaid law rather the defendant-revisionist (petitioner in the instant case) prayed for adjustment of the aforesaid amount deposited by him under Section 30 of U.P. Act No. XIII of 1972 in Misc. Case No. 76 of 1998 which had been deposited during the pendency of the application filed by him under Order IX Rule 13 of the Code of Civil Procedure.  The Court has given a categorical finding that the petitioner had,  in his application averred that the amount deposited by him towards rent from April 1998 to December,2000 has been adjusted whereas he submitted  his application under Order IX Rule 13 Code of Civil Procedure on 21.1.1999.  Hence, in fact, there was no amount deposited by  him under Section 30 of U.P. Act No. XIII of 1972 which he could have averred or prayed for as security.  The order of the Court below is as under :-

" bl izkfo/kku ds ifj'khyu ls ;g Li"V gS fd ;g izkfo/kku ck/;dkjh gS vkSj blesa izkFkZuki= ds lkFk gh fMdzh'kqnk /kujkf'k udn esa tek djus dk izkfo/kku gS vkSj ;fn fdUgh dkj.kksa ls tek ugha dh tk ldrh gS rks izkFkZuki= nsusa ds iwoZ izkFkZuki= tekur izLrqr djusa dk fn;k tkuk pkfg, A ;/kfi ekuuh; mPp U;k;ky; ds fu.kZ; ds vuqlkj izkFkZuki= nsusa dh le; vof/k ds vUnj Hkh ;fn tekur izZLrqr djusa dk izkFkZuki= ns fn;k tkrk gS vkSj mls U;k;ky; vUrxZr vkns'k 5 fu;e 13 fl0iz0la0 ij fopkj fd;k tk ldrk gS A ijUrq iz'uxr izdj.k esa iqujh{k.kdrkZ@ izfroknh Onkjk vius izkFkZuki= vUrxZr vkns'k 9 fu;e 13 fl0iz0la0 ds lkFk u rks uxn /kujkf'k tek dh xbZ vkSj u dksbZ tekur izLrqr djusa dk izkFkZuk Ik= fn;k x;k vkSj tc iqujh{k.kdrkZ @izfroknh dsk vius bl fof/kd =qfV dk Kku gqvk rks mlds Onkjk ,d o"kZ ds I''pkr ,d izkFkZuki= bl vk'k; ls fn;k x;k fd mlds Onkjk /kkjk 30¼2½ vf/kfu;e la[;k 13@72 ds vUrxZr tek dh xbZ fdjk;s dh /kujkf'k dh tekur ds #Ij esa Lohdkj fd;k tk;s A ;g izkFkZuki= izFker% rks ,d o"kZ ckn fn;k x;k Fkk] nwljs mlesa ml /kujkf'k dks lek;ksftr djusa dh ckr dgh xbZ gS tks izfroknh ds izkFkZuki= vUrxZr vkns'k 9 fu;e 13 fl0iz0la0 ds yfEcr jgus ds nkSjku tek fd;k x;k gS A Loa; izfroknh usa vius izkFkZuki= esa ;g fy[kk gS fd mlusa vizSy 1998 ls ekg fnlEcj 2000 rd dk tks fdjk;k tek fd;k x;k gS] mls lek;ksftr fd;k x;k gS tcfd izfroknh dk izkFkZuki= vUrxZr vkns'k 9 fu;e 13 fl0iz0la0 fnukad 21-1-99 dks izLrqr fd;k x;k gS A vr% mDr frffFk rd izfroknh dk ;g fdjk;k ftls og tekur ds #Ik esa nsuk pkgrk gS ] tek gh ugha Fkk A

From the above, it is apparent that the revisional Court has recorded cogent reasons for dismissing the revision of the petitioner. Moreover, if any amount is due it has to be deposited before the trial Court on the first date of hearing. Admittedly, the petitioner had moved an application in this regard in revision, therefore, his application was wholly misconceived and against the provisions of law.

As regards notice, the Court has recorded categorical finding that the defendant-revisionist (petitioner) had been sent the notice of the application and in his objection he had stated that the application of the petitioner is not maintainable which shows that the petitioner had full knowledge of the order dated 19.2.1999 and that he had himself received the summons and signed in token of receipt thereof.  The Court has observed that the revisionist-applicant had not deposited the decretal amount as such, his application was not maintainable.  The relevant findings in this regard are as under :-

" foi{kh dks izkFkZuki= dh uksfVl Hksth xbZ A foi{kh dh vksj ls 8 x ,oa 9 x2 vkifRr izLrqr dh xbZ] ftlesa dgk x;k fd izkFkhZ dk izkFkZuki= iks"k.kh; ugha gS A izkFkZhZ dks vkns'k fnukad 19-2-99 dh tkudkjh 'kq# ls jgh vkSj lk;y usa Loa; lEeu dks izkIr djds gLrk{kj Hkh fd;k Fkk A izkFkhZ usa fu.khZr fMdzzhVy ,ekmUV tek ugha fd;k gS] ftlds dkj.k ;g izkFkZuki= Lohdkj fd;s tkus ;ksX; ugha gS A /kkjk 5 dkuwu fe;kn vf/kfu;e ds izkFkZuki= dh vkifRr esa ;g dgk x;k gS fd izkFkhZ dks fnukad 19-2-99 ds vkns'k dh iw.kZ tkudkjh Fkh vkSj foi{kh dks ijs'kku djusa dh fu;r ls mlusa ;g izkFkZuk Ik= fn;k gS A

&&&&&&

&&&&&&izkFkhZ Onkjk izkUrh; y?kqokn U;k;ky; vf/kfu;e dh ?kkjk 17 ¿1�? dk vuqikyu ugha fd;k x;k gS A izfroknh fMdzhVy ,ekmUV ;k flD;ksfjVh nkf[ky ugha djuk pkgrk Fkk A izkFkhZ us fdjk;k tks /kkjk 30¿2�? ds vUrxZr U;k;ky; esa tek fd;k gS mls flD;ksfjVh ds #Ik esa j[kusa dk dksbZ vf/kdkj ugha gS A mijksDr rF;ksa ds vk/kkj ij izkFkZuki= 10x2 fujLr fd;k tk;s A

v/khuLFk U;k;ky; Onkjk nskusa Ik{kksa ds rdksZ dks lquus ds Ik'pkr vkSj ;g ikrs gq, fd izkFkhZ Onkjk /kkjk 17 izkUrh; y?kqokn U;k;ky; vf/kfu;e ds izkfo/kku dk vuqikyu u djusa ds vHkko esa izkFkZuki= 4x2 ,oa 6x2 fujLr dj fn;k x;k A&&&"

  There is no infirmity or illegality in the impugned orders warranting interference in writ jurisdiction.

Accordingly, the writ petition is 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 it is a frivolous petition, 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, Mau 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.

Dated 16.1.2007

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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