Himachal Pradesh High Court
Vijay Kumar Sood & Another vs Amrik Ahuja & Others on 24 August, 2018
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.125 of 2018 Reserved on : 10.8.2018 .
Date of Decision : August 24, 2018 Vijay Kumar Sood & another ....Petitioners.
versus Amrik Ahuja & others ...Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice. Whether approved for reporting? Yes For the Petitioners : Mr. Ajay Kumar, Senior Advocate, with Mr. Dheeraj K. Vashisht, Advocate.
For the Respondents : Mr. G.C. Gupta, Senior Advocate, with Ms Meera Devi, Advocate, for respondent No.1.
Respondents No.2 & 3 ex-parte.
Sanjay Karol, Acting Chief Justice In this petition, filed under Article 227 of the Constitution of India, landlords (petitioners herein) seek a direction to the Rent Controller to expeditiously decide Rent Petition No.42-2 of 2012, titled as Vijay Kumar v.
Sant Singh & others, filed in the year 2012.::: Downloaded on - 25/08/2018 23:00:44 :::HCHP
...2...
2. The grounds are twofold - (a) landlords Shri Vijay Kumar and Shri Rajinder Kumar, aged 79 and 76 years, respectively, are senior citizens, and (b) there is .
deliberate attempt on the part of the tenants (respondents herein) to delay the proceedings.
3. Having perused the record, so made available, this Court is of the considered view that there is yet third ground, which this Court finds to be shocking and that being, the casual manner with which the Court below conducted the proceedings, further contributing to delay of trial.
4. Certain facts are not in dispute.
5. The landlords have filed a petition for ejectment of the tenants. The same was filed on 12.9.2012 and summons issued the very same day. After service, pleadings were completed and issues struck on 28.3.2013. Whereafter, from 7.6.2013 till 30.11.2017, the tenants have filed several applications, under the provisions of Order 22 Rule 4 of CPC (three) and under Order 6 Rule 17 CPC (two).
6. Record reveals that the first application for amendment was filed on 7.6.2013, which though was disposed of on 16.8.2013, yet the Court did not take ::: Downloaded on - 25/08/2018 23:00:44 :::HCHP ...3...
notice of such fact and continued to adjourn the matter for deciding the said application, which fault the Court itself noticed on 15.1.2015, as is so evident from the .
record of proceedings of trial Court.
7. The second application for amendment was filed on 28.8.2017, which is yet pending consideration.
8. Third application, under order 22 Rule 4 CPC, was filed on 16.7.2013 and allowed on 30.8.2014.
Shockingly, as is evident form order sheets dated 21.7.2014, 5.8.2014, 7.8.2014, 11.8.2014, 14.8.2014, 16.8.2014, 20.8.2014, 28.8.2014 and 29.8.2014, even though arguments on the application were heard on 21.7.2014, yet the order was not prepared and matter adjourned repeatedly. In crux, it took one year to decide the said application.
9. Fourth application, under the provisions of Order 22 Rule 4(2) CPC was filed on 27.7.2015 and disposed of on 2.12.2016, and the fifth application, under the provisions of Order 22 Rule 4(3) CPC, which stands filed recently, is pending consideration.
10. This Court, at the outset, does not want to go into the issue as to whether delay caused can be attributed to the tenants or not, but the point to be ::: Downloaded on - 25/08/2018 23:00:44 :::HCHP ...4...
considered is that the Court below allowed the trial to be delayed by not promptly passing orders and dealing with the tenants firmly. Of course, landlord also is to prove its .
case.
11. This Court, need not be misunderstood to have commented on the orders passed by the Court below, in allowing the applications, but then it ought to have noticed that for four years, trial had not proceeded, in fact was stopped, and the reason for delay, cannot be attributed to the landlords. Cases of Senior Citizens are to be taken up on priority basis and dealt with promptitude.
12. A dishonest litigant, be it a landlord or a tenant may have interest in delaying the proceedings or dragging the opposite party in a frivolous litigation, which may be false or motivated, but then, it is the duty of the court to ensure expeditious disposal of cases, more so that of dispute between the landlord and tenant, which, in any event, has to be decided expeditiously.
13. With vehemence, Mr. G.C. Gupta, learned Senior Counsel, opposes the petition, on the ground of maintainability, contending that no such petition under Article 227 can be filed, praying for expeditious disposal.
In support, he refers to and relies upon the decisions ::: Downloaded on - 25/08/2018 23:00:44 :::HCHP ...5...
rendered in Radhey Shyam & another v. Chhabi Nath & others, (2015) 5 SCC 423; Khimji Vidhu v. Premier High School, (1999) 9 SCC 264; Sharma Sweet House Charna .
& others v. State Bank of India, 2017(3) Shim.LC 1299;
and Krishan Lal @ Krishnu Ram v. Sukh Ram & others, Latest HLJ 2005 (HP) 331.
14. The Apex Court in Radhey Shyam (supra) clarified the scope and object of distinction between Articles 226, 227 of the Constitution of India, and Section 115 CPC. It laid down challenge to judicial orders would lie by way of a statutory appeal or revision and not by way of a Writ under Article 32 or 226 of the Constitution of India.
15. In Sharma Sweet House Charna (supra), the Court observed as under:
"22. From the aforesaid conspectuous of law, it can conveniently be held that the supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the Subordinate Courts within the bound of the jurisdiction. When a Subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise jurisdiction which it does have or jurisdiction though available is exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby the High Court may step into exercise its supervisory jurisdiction. The supervisory jurisdiction is not available to correct mere ::: Downloaded on - 25/08/2018 23:00:44 :::HCHP ...6...
errors of fact or law unless the following requirement is satisfied:-
(i) The error is manifest and apparent on the face of the proceedings such as .
when it is based on ignorance or utter disregard to the provisions of law, and to grave injustice or gross failure of justice has occasioned thereby.
(ii) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscious of the High Court dictates which too act lest gross failure of justice or grave injustice has r occasioned."
16. Decision in Krishan Lal (supra) does not help the tenant in any manner, in view of observations made by the Court to the effect that:
"12. This Court is alive to the situation that every error, illegality or otherwise, is not to be corrected while exercising powers under Article 227 of the Constitution of India. At the same time, Court will be failing in its duty when in a given situation it does not exercise its authority under this Article, with a view to keep the Courts subordinate to the High Court within the bounds of its limits. This is a fit case for exercise of such powers on the facts which are peculiar to this case."
17. The Apex Court in Ramesh Chandra Sankla & others v. Vikram Cement & others, (2008) 14 SCC 58, held that power of superintendence under Article 227 of the Constitution, conferred on every High Court, covers ::: Downloaded on - 25/08/2018 23:00:44 :::HCHP ...7...
all courts and tribunals throughout the territories in relation to which it exercises jurisdiction and is very wide and discretionary in nature. It can be exercised ex debito .
justitiae i.e. to meet the ends of justice. It is equitable in nature. While exercising supervisory jurisdiction, a High Court not only acts as a court of law but also as a court of equity. It is, therefore, the power and also the duty of the Court to ensure that power of superintendence must Court further held that:
r to advance the ends of justice and uproot injustice.
"92. In Roshan Deen v. Preeti Lal, (2002) 1 The SCC 100, dealing with an order passed by the High Court setting aside an order of Commissioner for Workmen's Compensation, this Court stated:
"12. ....Time and again this Court has reminded that the power conferred on the High Court under Article 226 and 227 of the Constitution is to advance justice and not to thwart it. (vide State of U>P> v. District Judge, Unnao, (1984) 2 SCC
673). The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the byproduct of an erroneous view of law the High Court is not expected to ::: Downloaded on - 25/08/2018 23:00:44 :::HCHP ...8...
erase such justice in the name of correcting the error of law."
(emphasis supplied)"
"98. From the above cases, it clearly .
transpires that powers under Articles 226 and 227 are discretionary and equitable and are required to be exercised in the larger interest of justice. While granting relief in favour of the applicant, the Court must take into account balancing interests and equities. It can mould relief considering the facts of the case. It can pass an appropriate order which justice may demand and equities may project. As observed by this Court in Shiv Shankar Dal Mills v. State of Haryana, (1980) 2 SCC 437, Courts of equity should go much further both to give and refuse relief in furtherance of public interest. Granting or withholding of relief may properly be dependent upon considerations of justice, equity and good conscience."
18. Though in a different context, the Apex Court in Krishankant Tamrakar v. The State of Madhya Pradesh, 2018 (5) Scale 248, highlighted the significance, importance and need for expeditious disposal of cases, holding access to speedy justice, as a part of fundamental right under Articles 14 & 21 of the Constitution of India.
19. A Constitution Bench (7-Judges) of the Apex Court in Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233, drew the distinction and relative scope of Articles 226 and 227 of the Constitution of India, holding that in a ::: Downloaded on - 25/08/2018 23:00:44 :::HCHP ...9...
Writ of Certiorari, under Article 226, the High Court can only annul the decision, but however, under Article 227, not only it was entitled to do the same but also issue .
further directions.
20. In the instant case, as already noticed, error committed is manifest on the face of record, resulting into gross failure of justice and it is one of such cases where this court must intervene and issue directions.
21. Under these circumstances, the petition is allowed, in the following terms:
(a) Trial of Rent Petition No.42-2 of 2012, titled as Vijay Kumar v. Sant Singh & others, is expedited. The Rent Controller must decide the petition, filed in the year 2012, positively, within a period of one year from today.
(b) The Rent Controller shall deal with the case on priority basis.
(c) The parties shall not seek unnecessary adjournment(s). In fact, they shall fully cooperate.
(d) Save and except for official witnesses or such of those witnesses, who are beyond their power, parties shall produce their evidence at their own responsibility.
(e) Any application filed by either of the parties shall be decided at the earliest, ::: Downloaded on - 25/08/2018 23:00:44 :::HCHP ...10...
considering the age of the parties and the petition.
Petition stand disposed of, so also pending .
application(s), if any.
( Sanjay Karol )
August 24, 2018(sd) Acting Chief Justice
r to
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