Allahabad High Court
Jagmohan Singh vs Vth A.D.J. Badaun And Ors. on 27 February, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Civil Misc. Review Application No. 23109 of 2013 In Case :- WRIT - A No. - 18285 of 1997 Petitioner :- Jagmohan Singh Respondent :- Vth A.D.J. Badaun And Ors. Petitioner Counsel :- Ajit Kumar, Gulab Chandra, R.N.Tripathi Respondent Counsel :- S.C., A.K. Solanki, A.P.S. Chauhan, B.B.Paul, S.Verma, Siddharth Verma Hon'ble Sudhir Agarwal, J.
1. This is an application for review of this Court's order dated 30.11.2012, whereby writ petition was decided, though in absence of learned counsel for petitioner, since he did not appear despite the case was called twice. Learned counsel for review-applicant stated that order deserves to be recalled for the reason that there is an error apparent on the face of record, inasmuch no notice was ever served upon petitioner and he had no occasion to contest the matter before the Courts below, yet impugned orders have been passed against him which, if sustain, would cause serious prejudice to petitioner. He placed reliance on Apex Court's decision in Rajender Singh Vs. Lt. Governor, Andaman and Nicobar Islands AIR 2006 SC 75.
2. Before coming to the submissions advanced by learned counsel for applicant, in my view, time has come when this Court must place on record its experience in dealing with the cases like the present one. Frequently and in a large number of cases, the counsels do not appear when the case is called out and allow the case to be decided, either as dismissed in default or on merits though ex parte by the Court itself after perusal of record.
3. Thereafter applications for recall or review or restoration, as the case may be, are filed, sometimes within a short time and sometimes after a long time, as it suits to the respective counsels. In fact, this is nothing but a different kind of Bench hunting taking advantage of leniency of the Court in accepting recall of the orders, whereby the cases have been dismissed in default or decided ex parte so that cases may be decided on merits. The Courts are always inclined to decide the cases on merits. If the counsels do not appear, the Court cannot force their presence by any means except of passing some kind of order. Many a times, Courts simply adjourn the cases and that too repeatedly but after all every case has to be decided. The cases are being list not for adjournments but for decisions and that too on merits. Unilaterally, it would be difficult to the Court to ensure attendance and assistance of counsels, appearing on behalf of petitioner or other side, if they decide not to appear.
4. Hundreds thousands cases are pending here which were dismissed in default several years ago, going to the extent of one or two decade(s), and Restoration Applications are pending therein. I find that twice, thrice and more the cases were dismissed in default, restored and the same story has continued. After all, we have to check this tendency otherwise it will add not only to piling of arrears and multiplicity of work upon the Court, but may result in unmanageable number of such cases imperilling the very system itself. Genuity, seriousness, endeavour of the Court to decide cases expeditiously, and, that too, on merits, should neither be taken as a weakness or as a tool to prolong disposal of cases, in one or other way. The time has come when all these activities have to be viewed seriously and a stern measure has to be adopted so that finality may attach to a case withouth compromising with the cause and administration of justice.
5. What I have observed above, is demonstrable in this case.
6. This is a tenant's writ petition. Respondent no. 2 Chandra Shekhar instituted ejectment Suit No. 25 of 1985 alleging that one Raj Bahadur Singh, was the tenant and has sub-let the shop in dispute to Jagmohan Singh, the petitioner, hence both are liable for ejectment.
7. The Trial Court, having failed to serve notice upon the defendants for one or the other reason, ultimately, passed an order for service of notice by publication and treating publication made to be a sufficient service, decreed the suit ex parte vide judgement dated 17.4.1986. Thereafter only Raj Bahadur Singh, the tenant, came in Misc. Case No. 4 of 1986 and sought recall of ex parte decree and restoration of suit. The aforesaid Misc. Case was contested by Landlord, Sri Chandra Shekhar. The same was dismissed in default by the Court on 6.2.1987.
8. Thereafter Sri Jagmohan, another defendant, whom the landlord has claimed to be a sub-tenant, filed application dated 5.3.1987 under Article IX Rule 13 C.P.C. read with Section 17 of provincial Small Cause Court Act, 1887 (hereinafter referred to as "Act, 1887") seeking recall of ex parte decree. He also contended that no notice was served upon him. This application was registered as Misc. Case No. 5 of 1987 and was rejected by Court on 9.5.1988 on the ground of non compliance of Section 17 of Act, 1887. Thereagainst, Sri Jagmohan Singh preferred Revision No. 45 of 1988 which was allowed by 4th Addl. District Judge, Badaun vide order dated 16.8.1988 and after setting aside order dated 9.5.1988 of Small Causes Court, the Revisional Court remanded the matter for re-consideration of application dated 5.3.1987 filed by Sri Jagmohan.
9. The Trial Court on 11.10.1990 passed an order permitting Jagmohan to deposit rest of amount under Section 17 of Act, 1887 by 12.10.1990. The period of deposit was extended to 16.10.1990 on the request of Sri Jagmohan.
10. Sri Jagmohan, thereafter, deposited Rs. 760/- on 16.10.1990. He also filed an affidavit (Paper No. 67-C) alleging that the signature on order sheet dated 29.8.1986 alleging to be his signature are actually forged and he has not made the same. The Trial Court treated the deposit made by Raj Bahadur Singh that of Jagmohan and thereupon held it sufficient compliance of Section 17. Also taking the view that defendants were not served properly, it recalled ex parte decree subject to payment of cost of Rs. 250/- vide order dated 9.10.1991.
11. Aggrieved thereto, the landlord preferred Revision No. 103 of 1991, which was allowed by Revisional Court vide order dated 1.5.1997. The Trial Court's order dated 9.10.1991 has been reversed.
12. This writ petition has been filed by Sri Jagmohan assailing order dated 1.5.1977. While entertaining it, an interim order was passed by this Court on 28.5.1997.
13. Thereafter this case was listed before Hon'ble Rakesh Tiwari, J. on 1.8.2007 but despite revised call, none appeared on behalf of petitioners and this writ petition was dismissed for want of prosecution. The aforesaid order was recalled vide order dated 19.11.2010 passed on petitioners' Restoration Application No. 306880 of 2010.
14. Again it was dismissed in default by Hon'ble Shashi kant Gupta, J. on 15.5.2012 and was restored on 31.5.2012 on Restoration Application No. 163252 of 2012.
15. It is the third time when the matter was listed before this Court on 30.11.2012 and I passed order after perusal of record of my own, since none appeared on behalf of petitioners despite revised call.
16. The application in question thus is third in its turn requesting this Court to review/ recall order dated 30.11.2012 and hear the writ petition on merits.
17. The facts discussed above, the history and the tendency make it clear that there is no serious attempt on the part of petitioners to get the case decided on merits.
18. Even otherwise, what I find after hearing Sri Gulab Chandra, learned counsel for petitioners, that against ex parte decree, Misc. Application filed by tenant Raj Bahadur already stood dismissed for want of prosecution and attained finality inasmuch Misc. Case No. 4 of 1986, on the application of tenant Raj Bahadur was dismissed on 6.2.1987. It is not the case of petitioner that the said order has not attained finality. Petitioner is a sub-tenant and he sought advantage of deposit made by the principal tenant i.e. Raj Bahadur Singh in purported compliance of Section 17 in Misc. Case No. 4 of 1986 which case/application had already been dismissed by Trial Court for non prosecution by principal tenant. The deposit made by principal tenant, Raj Bahadur Singh, therefore, could not have been given any credit to petitioner, who was a sub-tenant and separately filed application registered as Misc. Case No. 5 of 1987 under Order IX Rule 13 C.P.C. It is admitted that petitioner on his own has not at all made compliance in entirety with respect to requirement of deposit of rent etc. under Section 17 of Act, 1887.
19. Besides, the explanation of petitioner that he did not have any information of the suit has also been examined by Revisional Court in great detail from original record of the case and neither I find any manifest error therein nor anything could be pointed out.
20. The judgement referred to above by learned counsel for applicant, in view of above facts and circumstances has no application to the case in hand.
21. In the entirety of the facts and circumstances, I, therefore, find no reason to review my order dated 30.11.2012.
22. The application is dismissed.
Dt. 27.2.2013 PS