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RAJESH KUMAR SHARMA AND ANOTHER versus BHAGWAN DAS

High Court of Judicature at Allahabad

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Rajesh Kumar Sharma And Another v. Bhagwan Das - WRIT - A No. 40212 of 2006 [2006] RD-AH 17857 (17 October 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

   Court no. 7  

              Review Application No. 176275 of 2006

                                  In

                                                   

            Civil Misc. Writ Petition No. 40212 of 2006

         Rajesh Kumar Sharma and another Vs.   Bhagwan Das

Hon'ble Rakesh Tiwari,J.

Heard counsel for the parties and perused the record.

This is an application for review of the order dated 31.7.2006 passed in Civil Misc. Writ Petition No. 40212 of 2006 Rajesh Kumar Sharma and another Vs.   Bhagwan Das by this Court.

The counsel for the applicants submits that the amendment made by State of U.P. in Section 115 of Code of Civil Procedure, the proviso II of sub-rule 3 clearly speaks that if the order is allowed to stand, would occasion a failure of justice or cause irreparable loss or injury to the party against whom it is made. In the circumstances, the revision is maintainable and the impugned order dated 1.3.2006 is causing irreparable loss and injury to the petitioner as his ''receipt' sought to be filed in support of his case is not being permitted to take on record as evidence.

He further submits that if the document is not taken on record it will amount to the denial of opportunity to the applicant to lead evidence and that the order dated 1.3.2006 rejecting the applicant's application for taking document on record has also been challenged in the writ petition, hence the direction for taking the document on record could be passed by this Court by ignoring the revisional courts' order.

In support of the above contentions the counsel for the applicants has placed reliance upon the following rulings

1. (1994) 4 SCC-659, Billa Jagan Mohan Reddy and another Vs. Billa Sanjeeva Reddy and others;

2. (2002) 2 SCC-2 Prem Bakshi and others Vs. Dharam Dev and others;

3. (2003) 6SCC-659 Shiv Shaktri Cooperative Housing Society,Nagpur Vs. Swaraj Developers and others;

4. (2004) 11 SCC-168, Shipping Corporation of India Ltd. Vs. Machado Brothers and others;

5. (2005) 13 SCC-89 Sajjan Kumar Vs. Ram Kishan;

6. (2005)(3) JCLR-953( All), Amrawati and others Vs. XI Addl. District Judge, Moradabad and others; and

7. (2002)(6) SCC-2 Nalaketh Sainuddin Vs. Koorikadon Sulaiman.

and submits that the aforesaid rulings have not been considered by this Court while deciding the writ petition vide order dated 31.7.2006.

    He also submits that the order of rejection passed by the court below on the application for taking documentary evidence on record is cryptic, non-speaking and misconceived and the delay could not be a ground for rejecting the same as the applicant's evidence is still to be recorded and the case has been fixed for evidence of the petitioner. He further submits that in view of the aforesaid averments the review application may be allowed and the order dated 31.7.2006 be set aside.

CONCLUSIONS.

Before dealing with the contentions of the learned counsel for the petitioners, it would be better to see what ratio or law has been laid down in the case cited by the petitioner.

In Billa Jagan Mohan Reddy( supra) it has been held that-

    " Delay in producing documentary evidence before settlement of issues. Explanation for delay need not be as rigorous as required under Section 5 of the Limitation Act. Application seeking production of the documents filed at the stage of arguments before the trial Court after obtaining those documents from Revenue authorities. The Apex Court has held that the trial Court erred in refusing to condone the delay and accepting the documents. The appellate Court can receive additional evidence if it considers to be needed in the interest of justice."

In Prem Bakshi ( supra)  it has been held that-

                " Revision where impugned order disposes of a suit or other proceedings finally-held- order by trial Court holding it has no jurisdiction to proceed or that suit is barred by limitation would amount to a final decision. Such order would be revisable."

            In Shiv Shakti Cooperative Housing Society, Nagpur (supra) it has been held that-

            "  Maintainability of revision application after the amendment-Held, question to be asked is whether the order in favour of the party applying for revision in the courts below would have given finality to the suit or other proceedings. If answer is in the affirmative, then application is maintainable, otherwise not."  

In Shipping Corporation of India Ltd. (supra) it has been held that-

        " since  no provision in CPC provides  for or contemplates filing of appeal against such order of dismissal, revision petition against, held, maintainable."

In Sajjan Kumar (supra) it has been held that-

       " Interference under supervisory jurisdiction of High Court-When warranted- Trial Court failing to exercise jurisdiction vested in it and rejecting prayer for amendment, and occasioning possible failure of justice thereby-Held, such error was liable to be corrected by High Court in exercise of its supervisory jurisdiction, even Section 115 would not have been strictly applicable."

In Amrawati (supra) it has been held that-

         "Documents sought to be admitted relevant and necessary for meeting out justice between the parties to arrive at correct and proper decision-Held: Such documents can be admitted in evidence."

In Naleketh Sainuddin (supra) it has been held that-

           " Maintainability of Revision- Revision does not lie, against a finding alone, where ultimate decision in impugned order is in favour of a person aggrieved by the finding. However, it was clarified that if such person feels entitled to a greater or more beneficial relief than that obtained by him. Then he needs to file revision."

               In the aforesaid case of Billa Jagan Mohan Reddy (supra) the documents were in possession of Revenue authorities and not in the possession of the party and in those circumstances the Court permitted filing of documents, which is not in the present case.

           However, in the instant case no such issue has been decided by the Civil Judge in suit holding it to be not maintainable. In the case of Prem Bakshi  (supra) suit had been decided whereas in the instant case, the Civil Judge has only decided application (paper no.62-C) and the petitioner went in revision against an interlocutory order. Thus it has rightly been held by the Revisional Court that order on 62-C does not finally decide the case or an issue. The case of Shiv Shakti (supra) was regarding amendment, hence neither the cases of Prem Bukshi (supra) nor of Shiv Shakti (supra) are applicable.

The challenge to the impugned order of termination of agency in the case of Shipping Corporation (supra) was based on following grounds:-

(a) A suit challenging a notice of termination of an agency which is in the nature of a personal contract is not maintainable.

(b) A suit simpliciter for declaration without seeking any consequential relief is also not maintainable.

(c) Suit OS No.4212 of 1995 having become infructuous with the eclipse of cause of action mentioned in the said plaint, the court ought to have dismissed or disposed of the said suit as contemplated under the various provisions of the Civil Procedure Code like Order 7 Rule 11, Order 12 Rule 6, Order 15 Rules 1 and 3 and Order 23 Rule 1.

(d) At any rate when the appellant brought to the notice of the court by way of an application under Section 151 CPC that the original notice which is the foundation of the suit OS No. 4212 of 1995 having been superseded by a subsequent termination notice in regard to the very same contract of agency, the courts below ought to have in the interest of justice allowed the same and dismissed the suit as having become infructous, keeping open the rights of the parties to be adjudicated in the other two suits pending before it.

In that case it was urged by the counsel for the respondents that-

(a) A revision against the dismissal of the application filed under Section 151 before the High Court was not maintainable.

(b) The application for dismissal lacked bona fides.

(c) The respondent will be put to a great hardship and prejudice if the said 1A were to be allowed and its first suit is dismissed on the ground of having become infructuous because the protection of the interim order granted to it would be lost.

     It was in that context it was observed by the Apex Court that we have carefully examined the various provisions of CPC which provide or contemplate filing of an appeal but we find no such provision available to the appellant to file an appeal against the order made by the trial court on an application filed under Section 151 CPC. Nor has the learned counsel appearing for the respondent been able to point any such provision, therefore, the said argument has to be rejected.

The judgment in the case of Shipping Corporation (supra) is also in facts and circumstances of own peculiar facts and neither it does lay down any law of universal application nor is similar to facts and circumstances of this case, hence is not applicable.

Since in my opinion the lower Court and the Revisional Court have not committed any error in exercise of their jurisdiction and there is no occasion for failure of justice between the parties for the reason given in later part of this judgment, the cases of Sajjan Kumar, Amrawati and Nalekheth Sainuddin (supra) are also not applicable.

For considering the submissions of the counsel for the petitioners/applicants, it is necessary to appreciate the application and the ''receipt', which was sought to be filed as evidence by the petitioners. The application and the receipts appended with the writ petition as Annexure-4 read as under:-

                   ^^ U;k;ky; flfoy tt n0 iz0 gkFkjl A

              Yk?kqokn la[;k&3@88

            Hkxoku nkl cuke jkts'k

  Ikzfroknh fuEu fuosnu djrk gS %&

      ;g fd oknh ds }kjk izfroknh dks iznku dh xbZ jlhn ftldk ftdz izfrokn Ik= dh /kkjk 9 esa vafdr gS A lgou nkf[ky gksus ls jg xbZ gS A U;k;fgr esa mDr jlhn dk Ik=koyh ij nkf[ky fd;k tkuk vko';d gS A

vr% izkFkZuk gS fd lwph ds lkFk lyaXu jlhn fnuakd 24&3&88 dks Ik=koyh ij nkf[ky djus dh vuqefr iznku dh tkosa A

                                 izfroknh

                          }kjk vt; dqekj dqyJs"B

                                 ,MoksdsV

                                g0 vLi"V

                                  1&3&2006

eSaus Jh jkts'k dqekj 'kekZ iq= Jh egs'k dqekj 'kekZ fuoklh xyh ftyk gkFkjkl ls 22000@& vadsu ckbZl gtkj dsoy izkIr fd;s tks budks txg fdjk;s ij nh Fkh mlesa iVko vkfn esa yxs gS A esjs }kjk [kpZ gq;s Fkas A tc Jh jkts'k dqekj 'kekZ esjs xksnke dks [kkyh djds esjh lqiqnZxhZ esa nsxsa rc eSa budks 22000@& ckbZl gtkj #Ik;k flQZ tks iVko vkfn esa [kpZ gq;s gS A og eSa budks okfil djus dk vf/kdkjh gwWxk A

vr% ;g jlhn fy[k nh fd le; ij dke vkos A

                               g0 jlhnh fVdV

                             g0 Hkxoku nkl 'kekZz

rk0 24 ekpZ] 1988              iq= Jh dUgS;k yky 'kekZ

                             lknkckn xsV esjB A^^

                                   

The application of the petitioners was rejected by the following order dated 1.3.2006.

                   ^^vkt ;g Ik=koyh  is'k A

         62&x izkFkZuki= vks ih us fn;k A

      lquk A izfroknh dss vf/koDrk us gh iwoZ fu;r frfFk dks ;g dgk Fkk fd mls dksbZ bUV~D'ku ugha gS vkSj izfroknh dk lk{; lekIr dj fn;k tkosa A U;k;fgr esa izkFkZuki= 500@& #0 gtsZ ij Lohd~r A Lkk{; Ik=koyh ij yh tk;sa A

62 x izkFkZuki= vks ih us fn;k A

lquk A oknh dk lk{; lekIr gks pqwdk gS A Ik=koyh vks ih lk{; esa fu;r gS A Ik=koyh 1998 ls yfEcr gS A vr% nkok nk;j gksus ds 8 o"kZZ okn nLrkost tks vks ih ds ikl nkok nk;j djus ls iwoZ ekStwn Fks A mls Ik=koyh ij ysus dh vuqefr ekWxh A izkFkZuki= U;k; laxr ugha gS A izkFkZuki= [kkfjt fd;k tkrk gS A

Mh MCyw ,y ls ftjg dh xbZ tks v/kwjh gqbZ A'''ks"k fnukad 28&3&2006 is'k gS A^^

Admittedly, the petitioner then filed revision under Section 25 of the Provincial Small Causes Courts Act against the aforesaid order dated 1.3.2006 passed by the Civil Judge (Senior Division) Hathras in suit no. 3 of 1998 rejecting the application (paper no.62-C) on the ground that it was on 28.2.2006, the evidence of the revisionist was closed, who had moved two applications on 1.3.2006 i.e. one for permitting to produce oral evidence and other to file receipt dated 22.3.88 on the ground that though it was pleaded in para 9 of the w.s., but due to inadvertence it could not be filed earlier. According to the petitioners vide the said receipt dated 28.3.88 they had paid an amount of Rs.22000/- to the respondents and since the suit has been filed on the ground of default in payment of rent as such the receipt aforesaid is a relevant piece of evidence.

The lower Court in its order dated 1.3.2006 has opined that as plea is already taken by the petitioners in paragraph 9 of their w.s. hence they can lead evidence on the point in support of thier pleadings. The contention of the counsel that it was not justifiable on the part of the lower court to refuse documentary evidence has no force as evidence of plaintiff has begun. It is not in dispute that the petitioners had the receipt in their possession all along for more than eight years when the plaintiff had concluded his evidence, hence the court below has rightly refused to accept the said receipt as documentary evidence. The order was in accordance with Order 6 Rule 7 C.P.C. as amended. In fact there was no occasion for the petitioners to keep the said documentary evidence in thier possession. If it was due to inadvertence as averred by them it is thier own fault, but they cannot delay proceedings in the manner they like.

As regards the order  dated 17.5.2006 the Revisional Court after considering the cases of Amrawati Vs. IXthe Addl. District Judge, Moradabad and others 2005(3) J.C.L.R. page-953 cited on behalf of the petitioners and Prakash Chand Vs. Smt. Y.C.P. John, 1992(2) A.R.C.-172 found that revision was not maintainable, hence remitted the records back to the Court below for appearance of the parties on 23.5.2006 for further hearing.

         It may be mentioned here that none of the cases cited by the petitioners in review alleging that they were not considered were cited at the time of arguments in writ petition, hence the review has been filed on incorrect facts. However, the cases now have also been considered and have been found to be inapplicable to the facts and circumstances of this case.

Moreover, a perusal of the application for taking on record the receipt makes it amply clear that a sum of Rs. 22,000/- paid as advance towards rent were not in fact a part of rent but were given for repair and maintenance of the godown for making the rehabitable and useful. The amount was returnable by the plaintiff. Neither the Rent Control & Eviction Officer nor the Revisional Court has committed any error of law or jurisdiction.

No case for review is made out.  The review application is rejected.

Dated 17.10.2006

CPP/-


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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