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RAKESH PATHAK versus SMT. RAM KALI DEVI AND OTHERS

High Court of Judicature at Allahabad

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Rakesh Pathak v. Smt. Ram Kali Devi And Others - WRIT - A No. 56297 of 2006 [2006] RD-AH 17710 (13 October 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 Sri Deepak Kumar Jaiswal, counsel for the petitioner, Standing Counsel and perused the record.

This writ petition has been filed challeing the validity and correctness of the order dated 14.9.2006 passed by the Additional District Judge, Court No. 9, Meerut rejecting the amendment application (paper no. 81-C) appended as Annexure 5 to the writ petition.

The contention of counsel for the petitioner is that the Court below has committed an error in law apparent on the face of record in rejecting the amendment application by which the petitioner only wanted to clarify/elaborate his plea already taken by him in the written statement for not giving the exact date of construction of the house, in dispute, date of allotment and the date of taking of possession by the petitioner. He also submitted that he also filed possession certificate before the Court below and that if the amendment application is allowed it would not harm anyone but will help in deciding the case as the pleadings raised by him are elaborated.

The Court below after hearing the petitioner, has rejected the amendment on the ground that the petitioner has already taken his pleadings regarding year of construction of the house, in dispute, in his written statement and that the evidence of the respondents has already begun. Relying upon Order VI Rule 17 of the Code of Civil Procedure, the Court below has held that the amendment sought by the petitioner is hit by the provisions of Order VI Rule 17 of the Code of Civil Procedure as amended from time to time and that in any case, no irreparable loss or injury will be caused to the petitioner.

The petitioner has already taken the plea of year of construction of the house in dispute in the written statement and he can lead evidence in this regard.

Admittedly, evidence of the petitioner has not been led. It is not the case that in spite of due deligence and knowledge, the documents were not available with him and accordingly, he could not give exact date of completion of the construction of house, in dispute as well as the date of taking possession of the accommodation, in dispute, on rent.

From the perusal of the impugned order, it is apparent that the Court below is of the view that the petitioner can lead evidence as he has already taken this plea in the written statement. This clearly implies that the petitioner can lead evidence  about the exeact date of compltion of construction of house, in dispute and the date of taking over possession of the disputed house.

Fore the reasons stated above, I do not find any ground for interference in the writ jurisdiction under Article 226 of the Constitution.

The writ petition is dismissed.

Costs:

  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 In the facts and circumstances of the case, it is directed that the petitioner will pay cost of Rs.2000/- (Rupees Two Thouand) which shall be deposited by them before the District Judge, Meeur within 15 days from today. The cost so deposited can be withdrawn by the respondents-landlord without furnishing any security within two months from the date of deposit. In case the petitioner failz to make payment of the aforesaid amount, the same shall be recoverable as arrears of land revenue.

Dt. 13.10.2006

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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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