Uttarakhand High Court
Mahesh Kumar & Ors. ...Petitioners vs Pradeep Kumar & Ors on 26 April, 2019
Author: Lok Pal Singh
Bench: Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 219 of 2019 (M/S)
Mahesh Kumar & Ors. ...Petitioners
versus
Pradeep Kumar & Ors. ... Respondents
Mr. Neeraj Garg, Advocate for the petitioners
Mr. T.S. Bindra, Advocate holding brief of Mr. Vikas Bahuguna, Advocate for the
respondents
List of cases referred:
1. (2018) 2 SCC 87
2. (2018) 11 SCC 208
3. 2003 8 SCC 289
4. (2007) 11 SCC 37
Hon'ble Lok Pal Singh, J.
Petitioners have invoked the extraordinary jurisdiction of this Court, under Article 227 of The Constitution of India, seeking a writ of certiorari quashing the impugned order dated 27.7.2018 passed by Ist Addl. District Judge, Dehradun on application paper no.10A and 13A of petitioners in rent control appeal no.9 of 2018 Smt. Kalawati and others v. Pradeep Kumar and another (Annexure No.1 to the writ petition).
2. Brief facts of the case are that the respondent filed a release application under Section 21(1)(a) of U.P. Urban Buildings (Regulating of Letting, Rent and Eviction) Act, 1972 in the court of Prescribed Authority/First Civil Judge (J.D.), Dehradun, seeking release of the demised property. Release application was registered as P.A. case no.8/2008. Petitioners/tenants contested the release application and filed written statement. On completion of evidence 2 of the parties, the case was fixed for arguments on 15.06.2018. On 15.06.2018, case was called out but as none was present for the petitioners/tenants for arguments till 11:30 AM, learned Prescribed Authority fixed the case for judgment on 26.06.2018, giving opportunity to the petitioners/tenants to argue the matter in the meanwhile or to file written arguments. On the same date, counsel for the petitioners/tenants appeared before the court and argued the case. After hearing the arguments, judgment was reserved. Learned Prescribed Authority, vide judgment and order dated 26.6.2018, allowed the release application of the respondent/landlord, directing the petitioners/tenants to vacate the premises in question within 30 days from the date of order. Feeling aggrieved, petitioners/tenants preferred a Rent Control Appeal No.9/18. Landlord appeared in caveat before the appellate court. Learned District Judge, Dehradun admitted the appeal, summoned the lower court record and fixed the case for hearing on 27.07.2018. Interim order was also granted to the petitioners/tenants with a rider that if any adjournment application is moved by the petitioners/tenants on the date of hearing then the interim order will automatically got vacated. Thereafter, case was transferred to Ist Addl. District Judge, Dehradun. On 27.07.2018, petitioners/tenants moved an application before the appellate court being paper no.10-A stating therein that the written arguments were submitted by Mr. D.N. Garg, learned counsel for the petitioners/tenants in the Court personally to the Presiding Officer but as the same were not made part of the record, matter be reported to District Judge, Dehradun for passing appropriate 3 orders under General Rule Civil, for permitting to reconstruct the aforesaid written arguments. Application was filed along with an affidavit by Mr. Mahesh Kumar. Petitioners/tenants also moved application paper no.13-A , thereby praying that the judgment and order dated 13.7.2018 passed by the Prescribed Authority be set aside and the case be remanded back to the Prescribed Authority for re- hearing and deciding the case afresh. Learned Additional District Judge, Dehradun, vide order dated 27.7.2018, rejected both the applications moved by the petitioners/tenants. While rejecting application paper no.10-A, the appellate court observed that there is no requirement of reconstructing the written arguments as complete arguments were advanced by the counsel for the petitioners/tenants before the Prescribed Authority. It was further observed that if the written submissions filed by the petitioners/tenants were not accepted on record then it cannot be a ground to adjourn the hearing of appeal. On application paper no.13-A, the appellate court observed that the counsel for the petitioners/tenants are not willing to argue the appeal and rejected the application being misconceived.
3. A perusal of the record would show that during the pendency of release application, an application was moved by the petitioners/tenants to adduce additional evidence, which was rejected by the Prescribed Authority, vide order dated 02.03.2012, whereagainst, the petitioner had preferred Writ Petition No.793 (M/S) of 2012 before this Court. A Coordinate Bench of this Court, vide its judgment 4 dated 22.06.2017, had disposed of the writ petition as follows:-
"...
(6) The tenant-petitioner is permitted to adduce remaining evidence at the stage of his evidence before the Prescribed Authority on payment of Rs.5,000/-, as costs, to be paid to the landlord-
respondent. Such evidence may be filed on or before 21.7.2017. An effort shall be made by the learned Prescribed Authority to decide P.A. case no.08 of 2008, Pradeep Kumar and another vs. Smt. Kalawati and others, pending before it, at an earliest possible, in accordance with law, without granting unnecessary adjournment to either of the parties."
4. During the pendency of release application, the petitioners/tenants also filed a transfer application under Section 24 of C.P.C. before this Court being C24 No.44 of 2018. Transfer petition was disposed of by the Coordinate Bench vide order dated 01.08.2018. The Coordinate Bench did not find any valid ground to transfer the case from District Dehradun to any other district but keeping in mind the allegations made by the tenants/petitioners, the Coordinate Bench observed that the matter should be heard by the District Judge, Dehradun himself and directed the parties to move an application before the District Judge, Dehradun to this effect. Thereafter, the petitioners/tenants moved an application before the Additional District Judge, Dehradun stating that as the petitioners/tenants are going to move appropriate application in compliance of order dated 01.08.2018 passed by the High Court, the hearing of the case be 5 adjourned and the interim order be extended. Additional District Judge, by order dated 3.8.2018, adjourned the case till 9.8.2018, however, no specific order of extending the interim order was passed. Instead of apprising the appellate court that at the time of disposing of the adjournment application, interim order has not been extended, the petitioners/tenants again approached this Court by filing an application in the transfer application. The Coordinate Bench, considered the request made by the petitioner and observed that the Addl. District Judge should have extended the interim order and ordered accordingly. Thereafter, the petitioners/tenant filed the present writ petition, challenging the orders impugned, before the Vacation Court. It would be apt to mention here that before filing of the transfer application before this Court by the petitioners/tenant, impugned orders have been passed by the appellate court, but the petitioners/tenants waited for some time and chose to file the present writ petition during Vacation. Vacation Judge, vide order dated 22.01.2019, stayed the proceedings of Rent Control Appeal No.9 of 2018.
5. Heard learned counsel for the parties and have gone through the entire material available on record.
6. Learned counsel for the petitioners has contended that the lower appellate court has committed illegality in rejecting the application paper no.10-A whereby a prayer was made to reconstruct the written submissions and to remand the matter back to the Prescribed Authority. He has further contended 6 that the written submissions were handed over to the Prescribed Authority in the court personally but the same were not made part of the record, which ultimately has affected the valuable rights of the petitioners/tenants.
7. Per contra, learned counsel for the respondent/landlord has contended that the copy of the written submissions was served upon his clerk but it is not known whether the said written submissions were submitted in the court. Learned counsel has further contended that the petitioners/tenants have adopted every possible tactic to delay the hearing of the case. He has further contended that at the time of admission of appeal, a conditional order was passed by the appellate court that if any adjournment application is moved by the petitioners/tenants during hearing of the appeal, interim order will automatically got vacated. He has further contended that this Court also, while disposing of the transfer application, has specifically observed that unnecessary adjournment shall not be granted to either of the parties.
8. Before going any further, it would be apt to mention Rule 216 of General Rules (Civil), which is reproduced as under:
"216. Loss of record.-Whenever it is discovered that a record or portion of a record or a document on the file of a record is missing, the loss or theft shall be immediately reported in writing to the Judge in whose district or office the loss or theft has occurred, and he in turn shall report the fact to the High Court and state 7 the steps taken to try and recover the paper or papers missing."
9. There is no evidence on record that the written submissions were ever handed over to the Presiding Officer personally so as to form part of the record. In view of Rule 216 of General Rules (Civil), unless a document becomes the part of the record, there is no question of reconstructing the record. Thus, the application paper no.10-A has rightly been rejected by the appellate court.
10. Rule 15 of U.P. Urban buildings (Regulation of Letting, Rent and Eviction) Act, 1972, would be apt to mention here, which is reproduced as under:
"15. Application for release of buildings under occupation of tenant [Section 21(1).- (1) Every application for release under Section 21(1) shall specify the ground or grounds on which the tenant is sought to be evicted. (2) The application or its reply shall be signed and verified in the manner prescribed under Rules 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure, 1908.
If there are more than one landlords, the application shall be signed by all the co- landlords.
(3) Every application referred to in sub-rule (1) shall, as far as possible, be decided within two months from the date of its presentation."
Sub-rule (3) of Rule 15 specifically states that every application referred to in sub-rule (1) shall be decided within two months.
811. The purpose of enacting sub-rule (3) of Rule 15 would be that the landlord, who is in need of his property, may able to get it and enjoy it at an earliest. Proceedings under Section 21(1)(a) of the Act are summary in nature and not akin to a suit.
12. A perusal of the record would show that the release application was filed on 01.07.2008 while it was decided on 26.06.2018, almost after a decade. In the present case, the petitioner adopted every possible tactic to linger on the matter. It appears that after each and every order passed by the courts below, be it of the trial court or the appellate court, the petitioners/tenants approached this Court, challenging the same, so as to delay the proceedings. It is very much clear from the conduct of the tenants that the impugned order was passed on 27.7.2018 but it was not challenged before this Court immediately and was challenged by way of filing the present writ petition during Vacation, for the reason best known to them.
13. Learned counsel for the petitioner has placed reliance on sub-rule (3-A) of Rule 2 of Order 18, which reads as under:-
2. Statement and production of evidence.-
...
(3-A) Any party may address oral arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the Court so permits concisely and under distinct hearings written arguments in support of his case to the Court and such written arguments shall form part of the record."
914. Sub-rule (3-A) of Rule 2 of Order 18 of C.P.C. provides opportunity of filing written arguments to the parties before commencement of oral arguments. U.P. Act No.13 of 1972 is a special statute where the provisions of C.P.C. are not applicable. Section 34 of the Act entrusts power to the Prescribed Authority to apply certain provisions of the Code. For convenience, Section 34 of the Act is quoted hereunder:-
"34. Powers of various authorities and procedure to be followed by them.-(1) The District Magistrate, the Prescribed Authority or any [Appellate or Revising Authority] shall for the purposes of holding any inquiry or hearing [any appeal or revision] under this Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 (Act No. V of 1908), when trying a suit, in respect of the following matters namely,-
(a) summoning and enforcing the attendance of any person and examining him on oath ;
(b) receiving evidence on affidavits ;
(c) inspecting a building or its locality, or issuing commission for the examination of witnesses or documents or local investigation ;
(d) requiring the discovery and production of documents ;
(e) awarding, subject to any rules made in that behalf, costs or special costs to any parts or requiring security for costs from any party ;10
(f) recording a lawful agreement, compromise or satisfaction and making an order in accordance therewith ;
(g) any other matter which may be
prescribed.
15. However, it is the discretion of the Court to permit or not to permit the party to file written arguments before commencing the oral arguments. In the present case, it is evidently clear that before the commencement of oral arguments, written arguments were not provided by the counsel for the petitioners/tenants to the Prescribed Authority and on
15.06.2018 when the case was fixed for arguments of the parties, counsel for the petitioners/tenants did not appear. Learned Prescribed Authority, thus, passed an order observing that since the arguments have not been advanced by the counsel for the tenants, he may argue the case before the date of judgment or may file his written arguments, meaning thereby that the liberty was given to the petitioners either to argue the case or to file written arguments. Admittedly, the counsel for the petitioners appeared on the same date and argued the matter. Thus, there was no occasion for the counsel for the petitioners to file the written arguments, as also for the court to take the written arguments on record, if the same were filed.
16. Power under Article 227 of the Constitution of India is superintendent in nature and can be exercised by the court to keep the subordinate courts and Tribunals in its meets and bounds to stop the foul play and to avoid miscarriage of justice. This power, however, cannot be used as an appellate or revisional 11 power and must be exercised most sparingly when interference is called for in cases of grave dereliction of duty or flagrant violation of law.
17. In exercise of jurisdiction under Article 227 of Constitution of India, the High Court cannot act as an appellate court. Their Lordships of Hon'ble Apex Court in the case of Raj Kumar Bhatia vs. Subhash Chander Bhatia1 has held as under:
"12. This being the position, the case which was sought to be set up in the proposed amendment was an elaboration of what was stated in the written statement. The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227. In Sadhna Lodh v National Insurance Company3, this Court has held that the (2003) 3 SCC 524 supervisory jurisdiction conferred on the High Court under Article 227 is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The Trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6 Rule 17 of the CPC. There was no reason for the High Court to 12 interfere under Article 227. Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement (as submitted by the respondent) since the amendment sought to elaborate upon an existing defence. It would also be necessary to note that it was on 21-9- 2013 that an amendment of the plaint was allowed by the Trial Court, following which the appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the Plaintiff.
13. In the view which we have taken, it has not become necessary to consider the alternative submission of the appellant namely, that recourse taken to the jurisdiction under Article 227 by the respondent after filing an application for review before the Trial Court was misconceived. Since the matter has been argued on merits, we have dealt with the rival submissions.
13 Hence, on a conspectus of the facts and having due regard to the nature of the jurisdiction under Article 227 which the High Court purported to exercise, we have come to the conclusion that the impugned judgment and order is unsustainable. We accordingly allow the appeal and set aside the judgment of the High Court. The order passed by the Trial Court allowing the amendment of the written statement is accordingly affirmed."
18. Their Lordships of Hon'ble Supreme Court in the case of Dr. Kaximunnia (Dead) by Legal Representative vs. Zakia Sultana (Dead) by Legal Representative2 has observed as under:-
"35. Lastly, we find that the High Court while reversing the findings of the Special Court 13 decided the writ petition under Article 227 like a first Appellate Court by appreciating the entire evidence little realizing that the jurisdiction of the High Court while deciding the writ Petition under Article 227 is not akin to appeal and nor it can decide the writ petition like an Appellate Court.
36. The writ petition, in our opinion, should have been decided by the High Court keeping in view the scope and ambit of Article 227 for its exercise as explained by this Court consistently in series of decisions while examining the legality and correctness of judgment of Special Court impugned in the writ petition."
19. A perusal of the impugned order would show that no prejudice has been caused to the petitioners by the impugned order. Further, it would reveal from the record that the petitioners have tried their best to delay hearing of the release application and this Court has no hesitation in saying that they have remained successful in their approach. Petitioners have blatantly misused the process of court.
20. Their Lordships of Hon'ble Apex Court in the case of Ravinder Kaur v. Ashok Kumar3 , has observed as under:-
"...Courts of law should be careful enough to see through such diabolical plans of the judgment-debtors to deny the decree- holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law's delay 14 and bringing bad name to the judicial system."
21. Speedy justice is a fundamental right enshrined under Article 21 of The Constitution of India.
22. In Rajindra Singh (Dead) Through legal heirs vs. Prem Mai and others4, their Lordships of Hon'ble Apex Court has held as follows:-
"9. Before parting with this case we would like to express our anguish at the delay in disposal of cases in our law courts. The present case is a typical illustration. A suit filed in 1957 has rolled on for half a century. It reminds one of the case Jarndyce v. Jarndyce in Charles Dickens' novel 'Bleak House' which had rolled on for decades, consuming litigants and lawyers alike.
11. People in India are simply disgusted with this state of affairs, and are fast losing faith in the judiciary because of the inordinate delay in disposal of cases. We request the concerned authorities to do the needful in the matter urgently to ensure speedy disposal of cases if the people's faith in the judiciary is to remain."
23. In view of the foregoing discussion, I do not find any illegality or perversity or any jurisdictional error committed by the appellate court. Writ petition fails and is hereby dismissed. Interim order dated 22.01.2019 is hereby vacated. In my view, the conduct of the petitioners/tenants deserve condemnation by imposing exemplary cost, but having considered the 15 fact that the petitioners may be poor persons and on the request made by counsel for the petitioners in this regard, I have refrained myself from imposing the cost.
24. No order as to costs.
(Lok Pal Singh, J.) 26.04.2019 Rajni