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SMT. KELA AND ANOTHER versus SATISH CHANDRA GARG AND OTHERS

High Court of Judicature at Allahabad

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Smt. Kela And Another v. Satish Chandra Garg And Others - WRIT - A No. 53388 of 2006 [2006] RD-AH 16821 (25 September 2006)

 

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.

This petition has been filed by Smt. Kela and Sri Ram Kumar residents of 87 Pakki Mori (near Sambhal wala Hakeem Dasana Gate) district Ghaziabad challenging the order dated 8.9.2006 passed by Additional District Judge/Sepcial Judge, E.C.Act, Ghaziabad rejecting Misc. Application no. 58-C filed by him in S.C.C. Revision No. 169 of 2004 arising out of judgment and decree dated 30.9.2004 passed by Judge, Small Causes Court, Ghaziabad in S.C.C. Suit no. 13 of 2002- Satish Chandra Garg V. Babu Ram.

Respondent no. 1 filed S.C.C. suit no. 13 of 2002 for arrears of rent and eviction of the petitioners and also for damages alleging that the tenants had defaulted in payment of rent from 1.9.94 to 31.5.2001. The trial Court vide judgment and decree dated 30.9.2004 allowed the suit.

Aggrieved, the petitioners filed S.C.C Revision No. 169 of 2004.

It appears that during the pendency of the revision, the petitioners filed amendment application- paper no. 12-C for amendment of the written statement to add following paragraphs 18-A and 18B:-

"18-A   In the proposed paragraph no. 18-A it has been alleged that the plaintiff has shown his title as a landlord since 26.8.1998 on the basis of partition decree. In this view of the matter he is not entitled to realize the rent from the defendant before 26.8.1998, therefore, his demand of rent due before 26.8.1998 is illegal.

18-B. In the proposed paragraph 18-B it has been alleged that theplaintiff has sought Rs.600/- as expenses of notice in theplaint and the trial Court has passed an order for giving the aforesaid amount as expense of notice whereas Trial Court has no jurisdiction to grant such relief. It can only grant a relief for the arrears of rent, damages and the eviction."

The revisional Court vide order dated 18.7.2005 allowed the aforesaid amendment.

Thereafter, the petitioners moved an application dated 8.9.2005 for submitting additional evidence which was also allowed by the revisional Court and additional evidence was accepted on record.

The petitioners then moved Misc. Application No. 58-C dated 4.9.2006 for deciding 3 issues, which according to them had arisen due to the fact that applications for amendment and additional evidence had been allowed. This application was rejected by the revisional Court vide order dated 8.9.2006 which is impugned in this writ petition.

Counsel for the respondent states that thereafter the petitioner moved an application for transfer of the case to another Court which was rejected by the District Judge. Thereafter, the petitioners moved Transfer Application No. 51 of 2006-Babu Ram Vs. Satish Chandr Garg and others  in this Court. Counsel for the respondents appearing on behalf of the landlordss in that case made a statement at the Bar that he had no objection if the case is transferred to any other Court in Ghaziabad. Considering the plea of counsel for the respondents, the Court held that :-

"   In view of above, the District Judge, Ghaziabad is directed to recall file of Revision No. 169 of 2004 pending the Court of VIIIth Additional District Judge, Ghaziabad and transfer the same to other Court of competent jurisdiction at Ghaziabad. This order is being passed with the consent of counsel for opposite party no. 1 without making any comments on the transfer application. It is made clear that the revision shall be heard and decided by the revisinoal Court expeditiously preferably within 3 months from the date of receipt of the court of this order.

4.4.06 Sd/- Illegible

Prakash Krishna, J"

Counsel for the respondents submits that issues having been raised in this petition have already been taken note of by the trial Court in its order, as such, the revisional Court has rightly rejected the application of the petitioner. He further submits that the petitioner had not paid rent from 1984 till date and that the Courts have rightly come to the conclusion that the application moved by the petitioner was not bona fide but a ruse to delay the proceedings of the case.

Considering the facts and circumstances of the case, more particularly the fact that the High Court had directed the Court below to decide the matter within three months vide order dated 4.4.06, this Court is not inclined to interfere in the matter at this stage.  Such delaying tactics adopted by the petitioners are depricable.

For the aforesaid reason, the writ petition is accordingly dismissed. The revisional Court is directed to decide the revision within a month from the date of production of a certified copy of this judgment and order by either side as already the matter has been delayed.

Costz:

  As regards costs, 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 the petitioners will pay cost of Rs.5,000/- which shall be deposited by them before the District Judge, Ghaziabad within 15 days from today. 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 petitioners fail to make payment of the aforesaid amount, the same shall be recoverable as arrears of land revenue.

Dated 25.9.2006

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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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