Allahabad High Court
Smt. Kamla Devi And 3 Others vs Gopal Krishna Rai And 2 Others on 11 January, 2019
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 23.5.2018 Delivered on 11.01.2019 Case :- MATTERS UNDER ARTICLE 227 No. - 3618 of 2018 Petitioner :- Smt. Kamla Devi And 3 Others Respondent :- Gopal Krishna Rai And 2 Others Counsel for Petitioner :- Ram Dayal Tiwari,Sr. Advocate Sri. M.D. Singh Shekhar Counsel for Respondent :- Sandeep Srivastava Hon'ble Mrs. Sangeeta Chandra,J.
1. This petition has been filed by the tenant challenging the order dated 26.2.2018 passed by the Additional District Judge, Court No. 16, Allahabad in Misc. Appeal No. 48 of 2016 (Gopal Krishna Rai Vs. Smt. Kamla Devi).
2. The facts as are relevant for the decision of the controversy are that initially an Original Suit No. 305 of 1980 (Shyama Rai Vs. Ram Lakhan) was filed by the mother of the respondents (now deceased) for ejectment, arrears of rent and damages for use and occupation by Ram Lakhan (now deceased) - the father of the petitioners of the shop situated at Plot No. 78 Baroodkhana, Tiliarganj Allahabad.
3. It was alleged that Ram Lakhan was a tenant of the shop in question at the rate of rent of Rs. 30/- per month which rent was not being paid by him since 1979, despite service of notice, hence he was liable for eviction.
4. The father of the petitioners - late Ram Lakhan filed his written statement denying the title of the plaintiff by alleging that the shop in question was not situated on Plot No. 78 as alleged and that he was the owner and in possession of house no. 134 / 8 including the shop in it at which was situated on Plot No. 79/3 Baroodkhana, Tiliarganj. Late Ram Lakhan used the house no. 134/8 as residence-cum-barber shop, and he filed documents to show that house bearing Municipal No. 134/8 was situated over Plot No. 79/3 of which he was recorded owner w.e.f. 1.4.1980 in the municipal records after due enquiry and assessment tax was being carried upon him and he had been paying taxes all throughout for house no. 134/8 to the Municipal Body.
5. The Judge Small Causes Court, Allahabad by an order dated 8.2.1985 decreed the Suit of the plaintiff in part for recovery of arrears of rent and dismissed the Suit with respect to relief of ejecment and damages.
6. Against the order of Judge Small Causes Court, Allahabad, late Ram Lakhan filed a Revision before the District Judge bearing Revision No. 149 of 1985. The said Revision was dismissed on 2.9.1987. Against such order passed by Judge Small Causes and by the District Judge, Ram Lakhan filed Writ Petition No. 908 of 1988.
7. This Court by an order dated 1.8.2008 disposed of the writ petition remanding the same to the trial Court to decide afresh as to whether the petitioner (late Ram Lakhan) was ever tenant of Plot No. 78 situated at Baroodkhana, Tiliarganj, or that the shop in question was situated on Plot No. 79/3. The Court observed that the matter be decided by the learned Trial Court within a period of three months from the date of production of certified copy of the order produced before it and a categorical finding be given as to whether the petitioner - Ram Lakhan was occupant and tenant of Plot No. 78 or not.
8. It was also observed that the petitioner was also depositing a sum of Rs. 30/- per month under Section 30 of U.P. Act No. 13 of 1972, and he may continue to do so until the decision in the Suit afresh before the learned Court below (the Court of Judge Small Causes).
9. After remand the learned Trial Court on an application for appointing a Commissioner, by its order dated 22.2.2011, observed that there may not be boundary marks available but there were certain fixed points, like the Road, Railway line and School that were identified in the Revenue Map and such fixed points may be kept in mind in carrying out the Commission as per the Rules relating to survey. The Survey Commissioner Advocate - Abhai Narayan submitted his report on 13.1.2014.
10. It has been alleged by the petitioners that such report was without making any measurements for determining any fixed points and against the Rules for holding such a Survey Commission. A detailed objection was filed by the petitioner on 5.3.2014, but the Judge Small Causes Court, Allahabad by his order dated 19.3.2014 affirmed the Commissioner's report and rejected the objection filed by the petitioner numbered as paper no. 154-C.
11. Against the order dated 19.3.2014 confirming the report and taking it on record, the petitioners filed Revision No. 79 of 2014. The same was dismissed by an order dated 3.10.2015 by the Additional District Judge, Court No. 1, Allahabad, and date was fixed for giving evidence before the Trial Court.
12. The petitioners thereafter filed one other application, Paper No. 158-C requesting for permission to cross examine the Survey Commissioner - Abhai Narayan who had submitted the survey report. The Judge Small Causes Court however rejected the application paper no. 158-C by his order dated 4.1.2015.
13. It has been further submitted that this order was passed without taking into account the relevant provisions of Order XXVI and the petitioners filed an application under Order XLVII, Rule 1 of the CPC for review of the order. This application was numbered as application no. 182-Ka. The Judge Small Causes Court on 1.9.2016 allowed the petitioner's application and issued summons to the Survey Commissioner for cross examination and fixed a date.
14. Against the order of the Judge Small Causes Court, the plaintiff / respondent filed Misc. Civil Appeal No. 48 of 2016 under Order XLIII Rule 1 of the CPC, which was allowed by the Additional District Judge, Court No. 16, Allahabad on 26.2.2018.
15. It has been submitted by the petitioners that the Additional District Judge in the order impugned dated 1.9.2016 overlooked the provisions of Order XXVI Rule 10(2) CPC, which gave a right to the parties to cross examine the Commissioner with the permission of the Court touching upon any of the matter referred by him in his report and even as to the manner in which he had made the survey.
16. The counsel for petitioners argued that the order passed by Additional District Judge, Court No. 16, Allahabad dated 26.02.2018 is completely arbitrary. He refers to the error apparent in the order dated 04.11.2015 passed by Additional Judge, Small Causes Court / Additional Civil Judge (Senior Division), Allahabad by which his application 158-C for cross-examination of Survey Commissioner was rejected.
17. The counsel for petitioner submitted that even if the order dated 19.03.2014 accepting the Survey Commission report had become final after rejection of the Revision on 03.10.2015, still it was open for the petitioner-tenant to file an application for permission to cross-examine the Commissioner on his report already accepted by the Court. He has referred to Order XXVI Rule 10 (2) and judgments of the Hon'ble Supreme Court and this Hon'ble Court. In 2008 (1) SCCD 17 (SC): Gurunath Manohar Pavaskar & others Vs. Nagesh Siddappa Navalgund and others the Supreme Court has observed in paragraph - 8 that even if a report of Advocate-Commissioner was accepted and taken on record he could still be cross-examined as without such cross-examination his report may form a part of record but cannot be taken into consideration. He has also referred to AIR 1996 Orissa 121: Harihar Misra Vs. Narhari Setti Sitaramiah another wherein the Hon'ble Orissa High Court has observed that even if Commissioner's report is accepted the Trial Court should fix a date calling upon the parties to lead such evidence as they like and it was open to them to cross-examine the Commissioner on that date. He has also referred a judgment rendered by this Court reported in 1997 ACJ 770: Ram Prasad & others Vs. Lakshmi Narain Misra & others where similar observations have been made i.e. if objections are filed as to the Commissioner's report, he ought to be examined as defects may be pointed out in his measurement. Not only the details of the measurement but also the manner in which such measurement was done can be objected to by the parties to the litigation.
18. On the other hand, Shri Sandeep Srivastava has pointed out the observations made by the Revisional Court in the order impugned and also the judgments of this Court and of the Supreme Court with regard to the limited jurisdiction exercised under Order XLVII for review of an order passed by a Court. Learned counsel for respondents has relied upon AIR 2013 SC 3301: Kamlesh Verma Vs. Mayawati & others; 2013 (5) SCC 534: N. Anantha Reddy Vs. Anshu Kathuria & others; 2015 (2) ARC 670: Jagdish Singh Chauhan Vs. Union of India; 2015 (2) ARC 857: Smt. Sheshpati Vs. Ram Krishna; and 2005 All Law Journal 1770: Smt. Krishna Pathak Vs. Vinod Shankar Tiwari and others to buttress his argument that there may be a legal lacuna in the order passed by the learned Trial Court in rejecting the application for cross examination filed by the petitioner-tenant, but it could not have been corrected in a Review Application as a jurisdiction of a Court in Review under Order XLVII is extremely limited. The Court does not sit in appeal and it is not open for the Court to re-examine all facts afresh.
19. Having heard the learned counsel for the parties, I have also perused the papers filed along with this petition. It is apparent that Original Suit No. 305 of 1980 was filed before the Judge Small Causes Court, Allahabad by the landlady for eviction of the predecessor-in-interest of the petitioners and claiming arrears of rent and damages. The said Suit was initially allowed in 1985. Thereafter the Revision was filed which was decided on 2.9.1985 against the defendant late Ram Lakhan who thereafter filed writ petition in 1988.
20. This writ petition remained pending for twenty years and was disposed of on 1.8.2008 by directing the Court below to record a categorical finding as to whether the petitioner is occupant and tenant in Plot No. 78 or not, and to decide the Suit within a period of three months from the date of production of certified copy of the order. Till date, the SCC Suit No. 305 of 1980 has not been decided.
21. An order was issued by the learned Trial Court on 22.2.2011 while appointing the Commissioner which has been quoted in the order dated 19.3.2014 rejecting objection filed by the tenant as paper no. 154-C by the learned Trial Court. The relevant extract of the said order dated 22.2.2011 is being quoted herein below:-
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22. It has been observed by the learned Trial Court while, rejecting the objections filed to the Survey Commissioner's report that in case boundaries marks were unavailable, Survey can be carried out as per Rules, on the basis of two fixed points on which there is no dispute amongst the parties.
23. The Revenue records / Survey Map made by Revenue officials had shown a Railway line and a Well, and the Advocate Commissioner had mentioned in the report dated 13.1.2014 that the existence of Railway Line and Well had not been disputed, nor had been objected to. It is on the basis of agreement being arrived at between the parties that the Well and the Railway line were taken as two fixed points on the basis of which Survey Commission was done.
24. The order dated 19.3.2014 found that objections filed by the defendant / tenant saying that no boundary marks being available and fixed points not being first identified by the Survey Commission, to be incorrect and thus rejected the same.
25. In the objections filed to the Survey Commission's report, namely paper no. 154-C, the tenant had taken all sorts of objections regarding the method of carrying out the Survey Commission by the Advocate Commissioner and also on the merits of the report.
26. A dispute was raised regarding absence of boundary marks, incorrect measurements being taken, non certification of the Revenue map and also used of Jareeb for measurement, while mentioning the distances in Latha (log) by the Survey Commission. All such objections regarding the method adopted by the Survey Commission were not found to be tenable by the Judge Small Causes Court in his order dated 19.3.2014.
27. In the order dated 3.10.2015, the Additional District Judge, the Revisional Court observed that since the Commissioner's report in itself is not to be treated as evidence till it is evaluated after examination of the Commissioner, the order impugned did not come within the definition of a "case decided" as per law settled by this Court in Ram Chandra Vs. District Judge, Gorakhpur 2001 CIVCC 468.
28. The tenant / petitioners after dismissal of Revision filed another application, namely Paper No. 158-C before the Trial Court wherein they only stated that they needed to cross-examine the Advocate Commissioner regarding the procedure for undertaking the Survey Commission and for preparing a report. No other ground as to why they needed to cross-examine the Advocate Commissioner and to challenge his report were mentioned either in the application or in the affidavit i.e. paper no. 158-C.
29. The learned Trial Court in its order dated 4.11.2015 rejected such application paper no. 158-C on the ground that whatever grounds were mentioned while objecting to the Commissioner's report in Paper No. 154-C had merely been repeated in the application made by the tenant numbered as Paper No. 158-C. The objections i.e. Paper No. 154-C in paragraphs 2 to 12 and again in 17 relating to the procedure undertaken by the Survey Commission and alleged invalidity of the report had been carefully examined and rejected by the Court on 19.3.2014 itself, against which Revision was also dismissed. No fresh ground being taken in the application paper no. 158-C, the same was also liable to be rejected.
30. The petitioners / tenant thereafter filed a Review application under Order XLVII Rule 1 read with section 114 CPC. The application for review was entertained by observing that under Order XXVI Rule 10(2) of the CPC, there is a specific provision for cross-examination of the Advocate Commissioner under Orders of the Court, either by the defendant or by the plaintiff by the Additional Judge Small Causes by his order dated 1.9.2016.
31. The Order XXVI, Rules 9 &10 were quoted as also Order XXVI Rule 12 by the Additional Judge Small Causes Court, Allahabad and it was stated that this Court's judgment in Ram Chandra (supra) had observed that the Court after confirming the Commissioner's report, may evaluate the report at the time of cross examination of the Commissioner. Cross examination of the Commissioner was with respect to and touching on any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he had made the investigation, is certainly permissible under law.
32. The order rejecting paper no. 158-C dated 4.11.2014 was reviewed by the Additional Judge Small Causes Court, Allahabad by his order dated 1.9.2016. The review application, paper no. 182-A being allowed. Summons were issued to Survey Commissioner for cross examination, opportunity was directed to be given to not only the defendants but also to the plaintiff to cross examine the Survey Commissioner on the next date fixed. It was additionally observed that the matter being the oldest one and time limit having been provided by the Hon'ble High Court having elapsed, a letter be sent to the High Court seeking additional time for disposal of the Suit.
33. The Review application paper no. 182-A being allowed, the plaintiffs / landlords approached the District Judge in Appeal. The Misc Civil Appeal No. 48 of 2016 was entertained by the Additional District Judge and observations were made on the basis of several judgments of this Court and of the Supreme Court to the effect that review jurisdiction under Order XLVII Rule 1 CPC is extremely limited jurisdiction, it cannot be said that the learned trial Court could look into an error not apparent on the face of the record and finding the decision erroneous on merits, was entitled to set aside the same. The power of Court in Appeal under Order XLVIII was different from the power under Order XLVII CPC. The Appeal having been allowed on 26.2.2018, the matter has been agitated before this Court.
34. Before this Court, learned counsel for the petitioners have placed reliance upon several judgments as referred to herein below:-
35. In Board of Control for Cricket in India & another Vs. Netaji Cricket Club & others 2005 (4) SCC 741 paragraphs 88, 89, 90 & 93 are being relied upon which are being quoted as follows.
"88. We are, furthermore, of the opinion that the jurisdiction of the High Court in entertaining a review application cannot be said to be ex facie bad in law. Section 114 of the Code empowers a court to review its order if the conditions precedents laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit.
89. Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.
90. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit".
93. It is also not correct to contend that the court while exercising its review jurisdiction in any situation whatsoever cannot take into consideration a subsequent event. In a case of this nature when the court accepts its own mistake in understanding the nature and purport of the undertaking given by the learned senior counsel appearing on behalf of the Board and its correlation with as to what transpired in the AGM of the Board held on 29th September, 2004, the subsequent event may be taken into consideration by the court for the purpose of rectifying its own mistake."
(emphasis supplied)
36. A perusal of such paragraphs show that the Supreme Court has distinguished the contents of Section 114 of the CPC which is the substantive provision from the contents of Order XLVII Rule 1. It has been observed that Section 114 of the Code empowers a Court to review its order if the conditions precedent laid down therein are satisfied. The substantive provision of law did not prescribe any limitation on the power of the Court except those which are expressly provided in Section 114 thereof. Order XLVII Rule 1 of the CPC however provided that the application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record, but also if the same was necessitated on account of some mistake, or for any other sufficient reason. What would constitute sufficient reason would depend on the facts and circumstances of the case.
37. The Court referred to Moran Mar Basselios Catholicos Vs. Most Rev. Mar Poulose Athanasius AIR 1954 SC 526 that the scope of an application for review is much more restricted than that of an Appeal and under Order XLVII Rule 1(3) grounds had been specified and the third ground 'any other sufficient reason' must mean "a reason sufficient on ground, at least analogous to those specified in the Rule. It however referred to judgment rendered in Lily Thomas Vs. Union of India 2000 (6) SCC 224 where it was observed that procedure has to bend before Justice. If the Court found that an error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed, but for the erroneous assumption which infact did not exist and its perpetration shall result in miscarriage of justice, nothing would preclude the Court from rectifying the error.
38. It is apparent from a perusal of the judgment rendered in BCCI (supra) that it was a case of review ex-debito Justitiae which was being referred to in the case of Lily Thomas (supra). It was not procedural review that was being referred to by the Hon'ble Supreme Court.
39. Similarly, in Gurunath Manohar Pavaskar & other Vs. Nagesh Siddappa Navalgund & others 2008 (1) SCCD 17 SC, the learned counsel for the petitioner has referred to paragraph 8 where the Supreme Court had observed that in case an Advocate Commissioner is appointed and he filed a report which is taken on record after objections are rejected, even so, without cross examination of the Advocate Commissioner the report could not be taken into consideration, although the same became part of the record on rejection of objections.
40. In Harihar Mishra Vs. Narhari Shetti Sitaramaiya AIR 1966 Orissa 121, learned counsel for the petitioner has referred to the observations made by the High Court that even if the Commissioner's report is taken on record its acceptance by itself does not mean that the parties are precluded from challenging the evidence of the Commissioner or assailing the report by cross-examination of the Commissioner, and the witnesses examined by him, or by giving any other evidence to contradict the effect of the Commissioner's report.
41. In Ram Prasad & others Vs Laxmi Narayan Mishra 1997 Alld. Civil Journal 770, this Court has observed after referring to Order XXVI Rule 10 that the Commissioner may be examined to demolish his measurements.
42. However, this Court is not concerned with the provisions of Order XXVI Rules 9, 10 & 12 as referred to by the learned Senior Counsel at the time of argument of the case, as they relate to the merits of the order passed by the learned Trial Court on 4.11.2015.
43. This Court is merely concerned whether the order dated 4.11.2015 passed by the Additional Judge Small Causes Court rejecting paper no. 158-C could have been reviewed by the same Court on 1.9.2016.
44. A perusal of the order dated 1.9.2016 shows that the Judge Small Causes Court gave a detailed consideration to the provisions of Order XXVI Rules 9, 10 & 12 of the CPC and has observed that while passing the order dated 4.11.2015, the Court had not considered that the defendants right to cross examine the Commissioner was not dependent upon the confirmation of the Commissioner's report, because even though Commissioner's report is confirmed, it is confirmed subject to evidence because the Commissioner's report is not direct evidence to the facts in issue. It has corroborative value and the report can be rebutted by the contesting parties before final disposal of the Suit.
45. For this observation, the learned Additional Judge Small Causes Court had relied upon judgments of Orissa High Court and of this Court has referred to herein above in Harihar Mishra (supra) and Ram Ujagar (supra)
46. In Meera Bhanja Vs. Nirmala Kumari Choudhury 1995 (1) SCC 170, the Hon'ble Supreme Court referred to earlier judgments rendered by it in Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma AIR 1979 SC 1047 and in Satyanarayan Laxminarayan Hegde Vs. Mallikarjun Bhavanappa Tiruyamale AIR 1960 SC 137 that an error which has to be established by a long process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self evident and if it can be established, it has to be established by lengthy and complicated arguments, such an error cannot be cured by way of Review while considering the facts of the case.
47. The Supreme Court observed that "an error to be apparent on the face of the record" should be such which is grave and palpable. By merely saying that the reasoning adopted by the earlier Division Bench was suffering from a patent error, the Division Bench dealing with the review proceedings had overshot its jurisdiction under Order XLVII Rule 1 CPC. The Review Bench had re-appreciated the entire evidence, sat almost as the Court of Appeal, and reversed the findings reached by the earlier Division Bench. Even if the earlier Division Bench order was found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an Appellate Court.
48. The judgment rendered in Meera Bhanja (supra) has been relied upon in Parsion Devi & others Vs. Sumitri Devi & others 1997 (8) SCC 715 and in Harihar Das Vs. Usha Rani 2006 (3) SCC 125 where it was observed that none of the grounds mentioned in Order XLVII Rule 1 postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case, or could perhaps have argued that more forcefully, and / or cited binding precedents to the Court and thereby enjoyed a favarouable verdict. Where the order in question is appealabe, the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with greatest circumspection. There is a distinction between an erroneous decision and the decision which could be characterised as vitiated by an "error apparent". Rehearing of a dispute in the garb of the review petition is impermissible. Similarly, under the garb of review, a party cannot be permitted to reopen the case and to gain a full-fledged hearing.
49. In M/S Tunghabhadra Industries Limited VS. Government of Andhra Pradesh AIR 1964 SC 1372, it was observed that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for a patent error i.e. such an error where without any elaborate argument one could point out to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it. Review lies only when there is an error apparent on the face of the record and that fallibility is by oversight of the Court.
50. In N. Anantha Reddy Vs. Anshu Kathuria 2013 (15) SCC 534 FLR, the Supreme Court observed that review jurisdiction is extremely limited. Review jurisdiction is not an appeal and does not permit rehearing of the matter on merits.
51. In Kamlesh Verma Vs. Mayawati & others 2013 (8) SCC 320, the Supreme Court observed that an error which is not self evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power to review. The power of review cannot be confused with the appellate power which enables a Superior Court to correct all errors committed by a Subordinate Court.
52. A Division Bench of this Court while considering the scope of review petition under Order XLVII Rule 1 in Smt. Krishna Pathak Vs. Vinod Shanker Tiwari 2005 ALJ 1770 observed that if a party is aggrieved by a judgment by a Court, the proper remedy for such party is to file an appeal against that judgment, this Court referred to several judgments rendered by various High Courts, placing reliance upon observations made by the Privy Council in Chhajju Ram Vs. Neki & others AIR 1922 PC 112 that a case of omission to raise a point of law, or failure to argue a point by a lawyer at the initial stage is not an admissible ground under Order 47, Rule 1 CPC. Once a case has been finally argued on merit and decided on merit, no application for review lies on the ground that the case should have been differently argued. Even, if a counsel has not raised a point, review is not maintainable for the reason that such a mistake would not be apparent on the face of the record. Whether the error occurred by reason of the counsel's mistake or it crept in by reason of an oversight on the part of the Court was not a circumstance which could affect the exercise of jurisdiction of the Court to review its decision.
53. In this case, the Additional District Judge in the order impugned dated 26.2.2018 has rightly considered that the learned Trial Court i.e. Additional Judge Small Causes Court while entertaining review application i.e. paper no. 182-A had lost side of the difference between appellate jurisdiction or revisional jurisdiction. If there was a failure on the part of the counsel appearing for the tenant to point out Order XXVI, Rules 9, 10 & 12 to the learned Trial Court, or there was an oversight on the part of the Court itself, the order passed by the learned Trial Court would only be an order which is erroneous and would not be an order where the error is apparent on the face of the record.
54. This Court finds it appropriate to refer to judgment rendered by the Supreme Court in Kedarnath Vs. Mohan Lal Kesarvani 2002 (2) SCC 16 where while referring to the object of establishing Small Causes Court conferred with jurisdiction to try summarily specified category of cases, the Supreme Court has observed in paragraph 6 thus:-
"The object behind establishing Small Cause Courts conferred with jurisdiction to try summarily such specified category of cases which need to be and are capable of being disposed of by adopting summary procedure of trial is to secure an expeditious disposal and to curtail the lengthy procedure of litigation------."
(emphasis supplied)
55. In this case, it is apparent that the Suit was filed by late Smt. Shyama Devi - the predecessor-in-interest of the respondent / landlord in 1980 praying for eviction of tenant and claiming arrears of rent and damages for continued occupation. Once the Suit was allowed in 1985, the Revision was dismissed against the order passed by the learned Court below, a writ petition was filed in 1998, which was decided after twenty years in 2008, remanding the matter to the lower Court for consideration afresh on a particular issue alone, and with a further direction that the case be decided within a period of three months from the date a certified copy of order was produced before the learned Trial Court. Twenty years have passed and still the case has not been decided.
56. The petitioners / tenants have continued in occupation of the shop in question by depositing Rs. 30/- per month. The shop in question is situated at the junction of two main roads of the city of Allahabad at Tilierganj which is well known marked of the City. It is not unlikely for such tenant to gain undue advantage by mere pendency of the Suit as has happened in this case, both the original plaintiff as well as the original respondent are dead by now. They have been replaced by their legal heirs and representatives.
57. Even if Order XXVI Rule 10(2) was overlooked by the learned Trial Court in deciding the application filed for cross-examination of the Advocate Commissioner and the judgment rendered by the Hon'ble Supreme Court in this regard in Gurunath Manohar Pavaskar & other Vs. Nagesh Siddappa Navalgund & others 2008 (1) SCCD 17 SC is taken into account, it may lead to only a deficiency in leading of evidence which may eventually be taken advantage of by the tenants at a later stage while challenging it as a valid case of evidence.
58. However, the said advantage if it can be derived at a later stage by the tenant due to oversight of the learned Trial Court in deciding the application for cross-examination of the Advocate Commissioner, would only be available when the Suit is decided. The Small Causes Suit having been filed in 1980 has not been decided for the past thirty eight years.
59. This Court cannot countenance such delay as it would defeat the very object of the Act of 1887. Under Article 227 i.e. supervisory jurisdiction that this Court exercises, if two views are possible, the Court would not interfere. It is only when an order is passed which is clearly erroneous and against the settled position of law that supervisory jurisdiction under Article 227 can be exercised as has been held by the Supreme Court in Radhey Shyam Vs. Chhabinath 2015 (5) SCC 423.
60. This Court therefore finds no merit in this petition and dismissed the same with a direction to the learned Trial Court to decide the case as expeditiously as possible say within a period of three months from the date a certified copy of this order is produced before him, without giving any unnecessary adjournments being sought by either of the parties.
Order Date :- 11.01.2019 Arif