Allahabad High Court
Manorma Dubey vs Dr. Santosh Kumar Khanna And Anr. on 6 October, 2017
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. (Judgment reserved on 12.07.2017) (Judgment delivered on 06.10.2017) Court No. - 07 Case :- WRIT - A No. - 29646 of 2017 Petitioner :- Manorma Dubey Respondent :- Dr. Santosh Kumar Khanna And Anr. Counsel for Petitioner :- Ravi Anand Agarwal Counsel for Respondent :- Rohan Gupta Hon'ble Surya Prakash Kesarwani,J.
1. Heard Shreya Gupta, learned counsel for defendant No.1-petitioner/ tenant and Sri Rohan Gupta, learned counsel for the plaintiffs-respondents/ landlords.
2. This writ petition under Article 226 of the Constitution of India has been filed praying for the following relief:
"to issue a writ, order or direction in the nature of certiorari quashing the impugned judgement and order dated 31.05.2017 passed by Additional District Judge, Court No.14, Kanpur Nagar in Rent Appeal Misc. Case No.417/74/2017 (Annexure-8 to the instant writ petition) and the judgement and order dated 4.03.2010 passed by Additional District Judge, Court No.14, Kanpur Nagar in Rent Appeal No.20 of 2001 (Annexure-6 to the instant writ petition."
FACTS OF THE CASE
3. Briefly stated, facts of the present case are that plaintiffs-respondents/ landlords had purchased the House No.8/11, Arya Nagar, Kanpur Nagar by a sale deed dated 31.03.1992, which was registered on 20.04.1992 in the office of the Sub-Registrar, Kanpur. Thus, the plaintiffs-respondents became owner and landlord of the aforesaid disputed house. On the ground of bonafide need, the plaintiffs-respondents filed a Rent Case No.69 of 1993 (Dr. Santosh Kumar and another vs. Smt. Manorma Dubey and another), which was dismissed by the Prescribed Authority/ First Additional Judge Small Cause Court, Kanpur Nagar by judgment and order dated 29.01.2001. Aggrieved with the said judgment, the plaintiffs-respondents filed a Rent Appeal No.20 of 2001, which was allowed by the court of Additional District Judge, Court No.14, Kanpur Nagar by the impugned judgment dated 04.03.2010, and consequently, the release application was also allowed.
4. In paras-4, 7, 8, 9, 10 and 11 of the impugned judgment dated 04.03.2010, the Appellate Court noted the facts. The defendant No.1-petitioner remained absent on 05.03.2009 and, therefore, the order for ex parte hearing was passed. Tenant-defendant No.1 did not appear for arguments. The other tenant-defendant No.2 entered into a compromise being paper No.12-C, which was filed on 22.08.2003. Considering the facts of the case and evidences on record, the Appeal of the plaintiffs-respondents was allowed by the impugned judgment dated 04.03.2010.
5. Thereafter, the defendant No.1-petitioner filed a Writ Petition No.66992 of 2010 (Smt. Manorma Dubey vs. 14th A.D.J. Kanpur Nagar), which was dismissed by order dated 16.11.2010 with liberty to the petitioner to seek her remedy as may be available in accordance with law.
6. Thereafter, the defendant No.1-petitioner filed an Application 4-ga supported with affidavit 5-ga under Rule 32(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as "the Rules") for setting aside the impugned Appellate Order. The said Application was registered as R.A. Misc. Case No.417/74 of 2017, which was dismissed by the impugned order dated 31.05.2017 passed by the Additional District Judge-XIV, Kanpur Nagar.
7. Aggrieved with the Appellate Order dated 04.03.2010 and the order dated 31.05.2017 rejecting the restoration application, the present writ petition has been filed by the defendant No.1-petitioner.
Submission on behalf of the Plaintiffs-Respondents:-
8. Learned counsel for the defendant No.1-petitioner submits as under:-
(i) The Application under Section 21(1)(a) of the Act filed by the plaintiffs-respondents was not entertainable inasmuch as the said Application was filed without exhausting the period of three years from the date of purchase of the disputed house and without giving six months' notice.
(ii) The plaintiffs-respondents/ landlords have no bonafide need of the disputed house. The findings recorded in this regard by the prescribed Authority were not reversed by the Appellate Court rather the Appellate Court substituted its own finding which is not permissible. The reliance in this regard is placed on the judgment in the case of Ramesh Chandra vs. II Additional District Judge, 1996 (2) ARC 617 (All.) (Paras 24 and 25) and Gyan Chand vs. A.D.J., 1996 (2) ARC 479 (All.) (Paras-22, 23 and 24). The Appellate Court has drawn an abrupt conclusion on the banafide need which cannot be sustained. The plaintiffs-respondents have set up need only for two rooms whereas more than the said accommodation was vacated subsequently by the defendant No.2 which fact has not been considered by the Appellate Court.
(iii) The fact that the defendant No.1-petitioner/ tenant is residing in U.S.A., is no ground to hold bonafide need of the plaintiffs-respondents. Comparative hardship has also not been considered. Non-use of the accommodation by the defendant No.1-tenant, cannot be a ground for release under Section 21 of the U.P. Act No.13 of 1972.
Submission on behalf of the Plaintiffs-Respondents:-
9. Sri Rohan Gupta, learned counsel for the plaintiffs-respondents submits as under:-
(i) A writ petition under Article 226 of the Constitution of India to challenge the impugned orders is not maintainable in view of the law laid down by Hon'ble Supreme Court in the case of Radhey Shyam vs. Chhabi Nath, (2015) 5 SCC 423 (Paras-15, 17, 22, 24 & 25).
(ii) The defendant No.1-petitioner has abused the process of court and also approached the courts with unclean hands. A finding of fact in this regard has also been recorded by the Appellate Court. The Appellate Court has lawfully and correctly recorded findings of fact that the plaintiffs-respondents are in bonafide need of the disputed premises. The Defendant No.1-Petitioner is residing in U.S.A. and she is in fact sublet the disputed house.
(iii) The defendant No.1-petitioner participated in the appeal and she was afforded sufficient opportunity. Under the circumstances, entirely new objection has been raised presently, which cannot be allowed to be raised.
(iv) The recall application of the defendant No.1-petitioner was lawfully rejected as evident from detailed findings of fact recorded by the Appellate Court. The Appellate Court also found that the defendant No.1-petitioner has abused the process of court and has approached the court with unclean hands.
(v) The findings recorded in the impugned orders are findings of fact based on consideration of relevant evidences on record and as such, these findings cannot be interfered with in writ jurisdiction under Article 226 of the Constitution of India.
10. Learned counsel for the plaintiffs-respondents has referred to various portions of the impugned orders and supported the findings recorded therein. He further submits that the writ petition deserves to be dismissed.
DISCUSSION AND FINDINGS
11. I have carefully considered the submissions of the learned counsels for the parties and perused the record before me.
12. In Rent Case No.69 of 1993 filed by the plaintiffs-respondents/ landlords, the Defendant-Petitioner filed a written statement dated 01.03.1994. In paragraph-15 of the written statement, he stated that neither any request was made nor requisite notice of six months has been served and since the petition has been filed before expiry of three years from the date of purchase and as such, it is barred by provisions of Section 21 of the Act. However, he did not pursue any further, the requirement of six months' notice rather joined issues on merits on the question of bonafide need. Thus, the requirement of six months' notice was waived by the defendant-petitioner. In similar circumstances, the question of waiver of six months' notice was considered by Hon'ble Supreme Court in the case Martin & Harris Ltd. vs. 6th Additional District Judge and others, (1998) 1 SCC 732. The aforesaid judgment in the case of Martin & Harris Ltd. (supra) was followed by Hon'ble Supreme Court in the case of Nirbhai Kumar vs. Maya Devi, (2009) 5 SCC 399 and it was held as under:
"3. In Martin and Harris Limited's case (supra) it was held in para 13 as follows:
"It is not possible to agree with the contention of the learned Senior Counsel for the appellant that the provision containing the proviso to Section 21(1) of the Act was for public benefit and could not be waived. It is, of course, true that it is enacted to cover a class of tenants who are sitting tenants and whose premises are subsequently purchased by landlords who seek to evict the sitting tenants on the ground of bona fide requirement as envisaged by Section 21(1)(a) of the Act, still the protection available to such tenants as found in the proviso would give the tenants concerned a locus poenitentiae to avail of it or not. It is easy to visualise that proceedings under Section 21(1)(a) of the Act would be between the landlord on the one hand and the tenant on the other. These proceedings are not of any public nature. Nor any public interest is involved therein. Only personal interest of landlord on the one hand and the tenant on the other hand get clashed and call for adjudication by the prescribed authority. The ground raised by the landlord under Section 21(1)(a) would be personal to him and similarly the defence taken by the tenant would also be personal to him. Six months' breathing time is given to the tenant after service of notice to enable him to put his house in order and to get the matter settled amicably or to get alternative accommodation if the tenant realises that the landlord has a good case. This type of protection to the tenant would naturally be personal to him and could be waived. In this connection we may profitably refer to a decision of this Court in the case of Krishan Lal v. State of J & K [1994 (4)SCC 422] wherein Hansaria, J., speaking for a Bench of two learned Judges has made the pertinent observations concerning the question of waiver of a mandatory provision providing for issuance of notice to the parties sought to be proceeded against by the person giving the notice, in paragraphs 16 and 17 of the Report as under: "16. ... As to when violation of a mandatory provision makes an order a nullity has been the subject-matter of various decisions of this Court as well as of courts beyond the seven seas. This apart, there are views of reputed text writers. Let us start from our own one-time Highest Court, which used to be Privy Council. This question came up for examination by that body in Vellayan Chettiar v. Govt. of the Province of Madras [AIR 1947 pc 197] in which while accepting that Section 80 of the Code of Civil Procedure is mandatory, which was the view taken in Bhagchand Dagadusa v. Secy. of State for India- in-Council [(1927) 54 IA 338] it was held that even if a notice under Section 80 be defective, the same would not per se render the suit requiring issuance of such a notice as a precondition for instituting the same as bad in the eye of law, as such a defect can be waived. This view was taken by pointing out that the protection provided by Section 80 is a protection given to the person concerned and if in a particular case that person does not require the protection he can lawfully waive his right. A distinction was made in this regard where the benefit conferred was to serve `an important purpose', in which case there would not be waiver. "17. This point had come up for examination by this Court in Dhirendra Nath Gorai v. Sudhir Chandra Ghosh (AIR 1964 SC 1300) and a question was posed in paragraph 7 whether an act done in breach of a mandatory provision is per force a nullity. This Court referred to what was stated in this regard by Mookherjee, J. in Ashutosh Sikdar v. Behari Lal Kirtania (ILR 35 Cal 61) and some other decisions of the Calcutta High Court along with one of the Patna High Court and it was held that if a judgment-debtor, despite having received notice of proclamation of sale, did not object to the non-compliance of the required provision, he must be deemed to have waived his right conferred by that provision. It was observed that a mandatory provision can be waived if the same be aimed to safeguard the interest of an individual and has not been conceived in the public interest." Consequently it must be held that the provision for six months' notice before initiation of proceedings under Section 21(1) of the Act, though is mandatory and confers protection on the tenant concerned, it can be waived by him. On the facts of the present case there is no escape from the conclusion that the appellant, for reasons best known to it, consciously and being alive to the clear factual situation that the suit was filed on that ground prior to the expiry of six months' notice, did not think it fit to pursue that point any further and on the contrary joined issues on merits expecting a favourable decision in the suit and having lost therein and got an adverse decision did not think it fit even to challenge the decision on the ground of maintainability of the suit while filing an appeal and argued the appeal only on merits and only as an afterthought at the stage of writ petition in the High Court such a contention was sought to be taken up for the first time for consideration. On the facts of the present case, therefore, it must be held that the appellant had waived that contention about the suit being premature having been filed before the expiry of six months from the date of the suit notice."
7. Above being the position the decision in Martin & Harris Ltd.'s case (supra) expressed the correct view. Unfortunately, the said decision not appear to have been placed before the Bench which heard Anwar Hasan Khan's case (supra)."
(emphasis supplied by me)
13. In the case of Martin and Harris Ltd. (supra), the facts were similar to the facts of the present case. So far as the objection raised by the defendant-petitioner on the ground of filing of the aforesaid rent case before expiry of three years from the date of purchase of the disputed accommodation is concerned, I find no substance in the submissions of the learned counsel for the defendant-petitioner.
14. In the case of Vithalbhai Pvt. Ltd. Vs. Union Bank of India, AIR 2005 SC 1891, Hon'ble Supreme Court held that if a suit is filed premature, however, it becomes mature during its pendency then the same will have to be decided on merit. Similar view has been expressed by Hon'ble Supreme Court in the case of M/s Pushpa Sahakari Avas Samiti Ltd. v. M/s. Gangotri Sahkari Avas S. Ltd. and others, 2012 JT(3) SC 563.
15. In the case of Rajendra Kumar Agarwal Vs. Krishna Gopal, 2012 (11) ADJ 112 (para 4) this Court considered similar controversy and followed the law laid down by Hon'ble Supreme Court in the case of Vithalbhai Pvt. Ltd. (supra). In M/s.Pushpa Sahakari Avas Samiti Ltd. (supra) Hon'ble Supreme Court, while considering provisions of Section 47 read with Order XXI Rule 97 C.P.C.; held that premature filing of execution could not entail its rejection. To arrive at the aforesaid conclusion in the case of M/s.Pushpa Sahakari Avas Samiti Ltd. (supra) Hon'ble Supreme Court followed its earlier decision in the case of Vithalbhai Pvt. Ltd. (supra) and held as under:
"9. At the very outset, it may be stated that it is an admitted position that the execution was levied prior to the expiration of the period stipulated in the decree. The executing court, as is evident, has addressed itself to all the objections that were raised in the application and rejected the same. The principal objection relating to the maintainability of the proceeding on the foundation that it was instituted prematurely did not find favour with it. The learned Single Judge has observed that if an execution is premature when it is filed, it is liable to be rejected. Mr. Dwivedi has drawn an analogy between a premature suit and premature execution by placing heavy reliance on the authority in Vithalbhai (P) Ltd. (supra). In Vithalbhai (supra), while dealing with the premature filing of a suit, a two-Judge Bench of this Court, after referring to a number of decisions of various High Courts and this Court, came to hold as follows:-
"The question of suit being premature does not go to the root of jurisdiction of the court; the court entertaining such a suit and passing decree therein is not acting without jurisdiction but it is in the judicial discretion of the court to grant decree or not. The court would examine whether any irreparable prejudice was caused to the defendant on account of the suit having been filed a little before the date on which the plaintiff's entitlement to relief became due and whether by granting the relief in such suit a manifest injustice would be caused to the defendant. Taking into consideration the explanation offered by the plaintiff for filing the suit before the date of maturity of cause of action, the court may deny the plaintiff his costs or may make such other order adjusting equities and satisfying the ends of justice as it may deem fit in its discretion. The conduct of the parties and unmerited advantage to the plaintiff or disadvantage amounting to prejudice to the defendant, if any, would be relevant factors."
After so stating, the Bench ruled that the plea as regards the maintainability of the suit on the ground of its being premature should be promptly raised and it will be equally the responsibility of the Court to dispose of such a plea. Thereafter, it was observed as follows:-
"However, the court shall not exercise its discretion in favour of decreeing a premature suit in the following cases:
(i) when there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event;
(ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose;
(iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the court's jurisdiction; and
(iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency. (See Samar Singh v. Kedar Nath 13.) One more category of suits which may be added to the above, is: where leave of the court or some authority is mandatorily required to be obtained before the institution of the suit and was not so obtained."
[Emphasis Supplied]
12. In this context, we may refer with profit to the two-Judge Bench decision in Martin & Harris Ltd. v. VIth Additional Distt. Judge and others [(1998) 1 SCC 732]. In the said Case, the Court was interpreting the language employed in the proviso to Section 21(1) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The proviso stipulated that where the building was in occupation of a tenant before its purchase by the landlord, such purchase being made after the commencement of the Act, no application shall be entertained on the grounds mentioned in Clause (a) of the said Section unless three years' period had lapsed since the date of purchase. A contention was canvassed that filing of an application before the expiry of the three years' period was barred by the provision contained in the said proviso. Repelling the said submission, the Bench opined thus: -
"It must be kept in view that the proviso nowhere lays down that no application on the grounds mentioned in clause (a) of Section 21(1) could be "instituted" within a period of three years from the date of purchase. On the contrary, the proviso lays down that such application on the said grounds cannot be "entertained" by the authority before the expiry of that period. Consequently it is not possible to agree with the extreme contention canvassed by the learned Senior Counsel for the appellant that such an application could not have been filed at all within the said period of three years." After so stating, the Bench distinguished the decision rendered in Anandilal Bhanwarlal v. Kasturi Devi Ganeriwala[(1985)1SCC 442] which dealt with "institution" and eventually came to hold as follows: -
"Thus the word "entertain" mentioned in the first proviso to Section 21(1) in connection with grounds mentioned in clause (a) would necessarily mean entertaining the ground for consideration for the purpose of adjudication on merits and not at any stage prior thereto as tried to be submitted by learned Senior Counsel, Shri Rao, for the appellant. Neither at the stage at which the application is filed in the office of the authority nor at the stage when summons is issued to the tenant the question of entertaining such application by the prescribed authority would arise for consideration."
(emphasis supplied by me)
16. In the case of Laxmi Narayan vs. Additional District Judge, Court No.6, Kanpur Nagar and others, 2012 (2) ADJ 268, this Court considered a similar objection on the similar facts in the matter of a release application under Section 21(1)(a) of the Act and held as under:-
"This proviso has been interpreted by the Courts and it has been held that the application can be filed by the landlord before three years but it should be decided after three years. In the instant case though it is a fact that the release application was filed by the landlord before the expiry of three years from the date of purchase of the property, but as the application was decided after the period of three years. It cannot, therefore, be said that the application was not maintainable."
(Emphasis supplied by me)
17. In the present set of facts also, the release application was filed by the landlord before the expiry of three years from the date of purchase of the property but as the application was decided after three years i.e. on 29.01.2001, therefore, the application was maintainable.
18. Thus, the submission of learned counsel for the defendant-petitioner deserves rejection and is hereby rejected.
Bonafide Need:-
19. In paragraphs-3 and 4 of the plaint, the plaintiffs-respondents/ landlords have given description of their family members being six in number. Besides, they have a servant named Lalmani who used to reside with their family. The plaintiff No.1 was a senior physician at U.H.M. Hospital, Kanpur while the plaintiff No.2 was a senior Gynaecologist working at A.H.M. Dufferin Hospital, Kanpur. They have given description of accommodation in the disputed house in their possession being two rooms, one store room, one kitchen and front lawn and back courtyard. They have set up a case for bonafide need of the disputed accommodation in occupation of the defendant-petitioner and another tenant. However, the Prescribed Authority/ Judge Small Cause Court held that since the plaintiffs have given application for voluntary retirement and they could not establish that they are residing at Kanpur and as such they are not in bonafide need of the disputed accommodation.
20. In Rent Appeal No.20 of 2001 filed by the plaintiffs-respondents, the Court of Additional District Judge, Court No.14, Kanpur considered in detail the question of bonafide need as well as evidences on record and found that the inference drawn by the Prescribed Authority is against the record. The Appellate Court considered in detail the facts and evidences on record in paras-6 and 12 of the impugned appellate judgment and recorded a finding of fact on consideration of relevant evidences that the plaintiffs-respondents/ landlords are in bonafide need of the disputed accommodation. The Appellate Court also noted the fact that as per evidences on record, after the death of her husband the defendant-petitioner is now residing in U.S.A., husband where her daughter is settled. The question of comparative hardship was also considered in detail by the Appellate Court and the comparative hardship was found in favour of the plaintiffs-respondents. The detailed discussion and the findings recorded in paragraphs-6 and 12 of the impugned appellate judgment do not suffer from any legal infirmity or perversity and as such it cannot be interfered with in writ jurisdiction under Article 226 of the Constitution of India.
21. So far as the impugned order dated 31.05.2017 in R.A. Misc. Case No.417 of 2017 rejecting the recall application under Rule 32 of the Rules is concerned, I find that in paragraphs-1 to 13 of the impugned order dated 31.05.2017, the court below noted the facts in detail. In paragraph-16, the court below referred to the order sheet in Rent Appeal No.20 of 2001 to indicate that the defendant-petitioner was not appearing. In paragraph-20, the court below noted the facts stated in affidavit 17-ga filed by the plaintiffs-respondents that summons were duly served upon the defendant-petitioner. She had put in appearance in appeal and had been constantly appearing through counsel but had been taking adjournments after adjournments on various grounds from 2003 to 2009. It was at a later stage that the defendant-petitioner namely Smt. Manorma Dubey had refrained herself from appearing in the Appeal. Even after 05.03.2009, more than a dozen opportunities were granted to the defendant-petitioner to appear in the case and to argue the case but the defendant-petitioner had not availed the opportunity. Consequently on 19.02.2010, the arguments were heard and the judgment in Rent Appeal No.20 of 2001 was delivered on 04.03.2010. After detailed discussion, the court below recorded findings in Paras-21, 22, 23, 24, 25, 30, 31, 32 and 33 as under:
"21. On this aspect, this court is inclined to accept the contentions of the Ld. Counsel of the O.P./ Landlord that the applicant/ tenant was in full knowledge as a respondent in the rent appeal 20/2001, had participated through his counsel and sought adjournments and had received notice from the court by endorsing his signature on the back of the summons; for the below mentioned reasons:-
i. Summons by way of court dated 06.07.2001, in rent appeal 20/2001, that has been signed on 11.07.2001 on its reverse by "Niranjan", the son of Respondent no.1 and which signatures match the signatures made by the authorized, pairokaar/ deponent Niranjan, who is the son of the respondent no.1/ applicant and who has filed affidavit 5Ga accompanying this miscellaneous application present under consideration. These signatures also match those made on behalf of the deponent in affidavit 23Ga. As deposed by applicant/ tenant in para 12, page 5 of affidavit 23Ga, Niranjan is the son of the appellant and has been authorized to do pairavi on her behalf in the matter.
ii. Availability of paper 25Ga2 on record dated 08.07.2004 by Respondent 1, being "objections against the application dated 22.03.2004 filed by the appellant on 15.04.2004 for permission to file affidavit" contest in the appeal by way of disposal of application.
iii. It has been alleged by the O.P./ Landlord in para 17 of affidavit 22Ga of the O.P./ Landlord that Shri C.N. Tiwari was the counsel of the tenant herein and which fact has been admitted by way of additional re-joinder affidavit of the applicant being paper 23Ga through its para 18 on page 10 that Shri C.N. Tiwari was his counsel.
iv. Another additional rejoinder affidavit O.P./ Landlord, being paper 25 Ga/26Ga is on record in present application in which it has been alleged on behalf of the O.P./ Landlord that the Rent appeal 20/2001 was regularly attended by the admitted counsel of the applicant/ tenant Sri C.N. Tewari and his junior Shri Tibrewal, which stands uncontested either orally or in written.
v. Also on perusal of the record of the Rent Appeal 20/2001, it is evident indeed that papers 15Gha, 29Gha, 31Gha, 32Gha, 36Gha, 38Gha, 40 Gha and 42Gha are indeed adjournments sought on behalf of the Respondent 1/ present applicant and of these specifically papers 15Gha, 33Gha, 35Gha, 40Gha are adjournments sought on behalf of the Respondent 1 that carry the stamp and signatures of the admitted counsel Shri C.N. Tiwari, of the applicant herein.
22. As such, all contentions made by the applicant in his application that he did not know about the pendency of the Rent Appeal 20/2001 ab initio and that the applicant has stated on oath in support of his re-call application that he had no knowledge of the rent appeal case 20/2001, apriori, and that he came to know of it only when the execution proceedings for eviction, pursuant to the impugned order were initiated by the P.A. in misc. case bearing no.5/23/2010 cannot be sustained in view of the overwhelming record against him, as discussed in para 21 of this order and also based on his own admission on oath that he had a designated counsel Shri C.N. Tiwari, whose adjournments are on record in rent appeal 20/2001.
23. In view of para 22 above this court is constrained to observe that this re-call application has been moved with unclean hands wherein averments made in two applications on oath, both on behalf of the same swearing deponent, made purportedly to buttress the judicious acceptability of the recall application on behalf of the applicant, are found to be on self-contradictory depositions, upon which special costs need be imposed.
24. As such, on the point of the impugned order being ex-parte, in view of the above and the established fact vide preceding para 22 till para 23, in this order, it is evident that impugned order dated 04.03.2010 is not an ex-parte order and that the applicant Respondent no.1 knew of the appeal, participated and contested the appeal and at a very late stage, prior to arguments, stopped appearing in the appeal whereupon the impugned order was passed after giving several opportunities to the respondent to appear and participate in the case as based on the records of the case. The applicant/ respondent no.1 could have moved an application, any time before the judgment for putting across his points at the stage of arguments but the same has not been done as is evident from the record. On the contrary, by way of filing this re-call application and at this stage, the said order is being alleged as ex-parte, when without reason, application or any intimation to the Ld. Appellate court, the respondent no.2 abstained from proceedings in the rent appeal 20/2001. In view of this discussion, as also relevant observations and conclusions in preceding paras, it is thus evident that the impugned order is not an ex-parte order and on this point, the contentions relied upon by the Ld. Counsel of the applicant herein, are not in fit with the law as opined in Hochest Case, referred above.
25. The second aspect that needs to be dealt with is whether any sufficient cause has been made out by the applicant, satisfying this court that his absence given in the above dates as noted vide para 16 of this order, had sufficient cause behind them. The Ld. Counsel for the applicant has not relied upon any sufficient cause, and stated that since he could not be present for arguments, he was not heard at the time of arguments the Ld. Appellate court could not be seized of the appellant side whilst applying its judicial mind and hence the ex-parte order dated 04.03.2010, be re-called in interest of justice. Throughout, the recursive theme of the Ld. Counsel for applicant is that he could not extend his arguments before the appellate court. The counsel for the respondent has sternly opposed this reliance, though not relied upon any case law.
26. Keeping in view the facts of the case, suffice it to say, that a long and staid absence simpliciter of a party, is different from a studied absence from procedure, eschewing from court proceedings in order to introduce dilatory fetters in adjudication. Specifically, the order dated 05.03.2009 as referred in para 16 of this order, was not sought to be set aside by the respondent no.1/ applicant herein despite several opportunities. In this regard, the Ld. Counsel for the applicant has sought to draw legal parallels between order 9, Rule 13 and the essence of ex-parte proceedings, which are the alleged crux upon which relief has been sought in the instant application. The true test in any application under order 9, Rule 13, is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defense. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application. Quite contrary to this, the factual matrix made out on the case of the applicant is that he did not know of the rent appeal 20/2001 itself, and which, in view of preceding discussion can hardly be said to be reasonable or honest. In stark contrast to above, this recall application has been filed to set aside order dated 04.03.2010 based on the ground that he did not appear in the case, an averment not established by same signatures in Rent Appeal and this Misc. application, as made out in para 21 of this order. On the contrary it is the case of the applicant that he had no knowledge of the rent appeal pending adjudication, from its very institution. The conclusions in para 21 of this order, are in stark contrast to this apparent lack of knowledge and it is adequately clear that the appellant had knowledge of the appeal, appeared through counsel in the appeal and filed objections to appellant applications and sought adjournments from 15.01.2005 until 29.01.2009, in the appeal 20/2001.
30. That being the law as to recall jurisdiction of courts the only thing that needs be seen here is whether the Ld. Appellate Court provided an opportunity of hearing to the appellant before taking up the matter for disposal on merits. From the records, it is evident that the Respondent 1 appeared on the file and contested the matter several opportunities were given to the applicant upon which he could have made his appearance and conducted the case. As is evident from the application and affidavit, in this miscellaneous recall application, it is nowhere the case of the applicant that he was kept away from appearing in the matter or instructing his counsel, for reasons such as ill-health, lack of knowledge of dates or any other suitable that would fall within the four corners of sufficient cause.
31. On perusal of the record of the case it is evident that the question of sufficient cause and consequential absence of opportunity of hearing in favour of the applicant, thus, deserves to be decided against the applicant. It must be kept in mind that the principle, that no one can take advantage of on it's own wrong is important. Nullus commodum capere potest ex sua injuria propria - No one can derive an advantage from his own wrong. At this stage it would also be appropriate to stress upon the nature of lis between the parties. Admittedly, the lis pertains to the law of Rent Control, proceedings under which are statutorily bound to be taken up in a time-bound manner and which does not have any express provision as to any post-decisional hearing.
32. Whilst disposing off this re-call/ set-aside application we should also profit from the guidance of Hon'ble Supreme Court, as reported in (1994) 5 SCC 566, Maharashtra State Financial Corporation v. Suvarna Board Mills and Another, wherein it has been observed that the natural justice cannot be placed in a strait-jacket; its rules are not embodied and they do vary from case to case and from one fact-situation to another. All that has to be seen is that no adverse civil consequences are allowed to ensue before one is put on notice that the consequence would follow if he would not take care of the lapse, because of which the action as made known is contemplated. No particular form of notice is the demand of law. All will depend on facts and circumstances of the case.
33. As such, this restoration application is devoid of merits in its entirety and deserved to be rejected accordingly."
22. The findings recorded by the Court below as discussed above while rejecting the recall application by the impugned order dated 31.05.2017 are based on consideration of material evidences on record. These findings of fact could not be disputed by the learned counsel for the defendant-petitioner.
23. The judgment in the case of Ramesh Chandra (supra) and Gyan Chand (supra) relied by the defendant-petitioner are quite distinguishable on the facts of the present case inasmuch as in the present set of facts, the Appellate Court in Rent Appeal No.20 of 2001 not only discussed the evidences on the point of bonafide need and comparative hardship but also found that the findings recorded by the Prescribed Authority was contrary to record.
24. In view of the above discussion, I do not find any merit in the present writ petition. The writ petition is wholly devoid of substance and, therefore, deserves to be dismissed.
25. In result, the writ petition fails and is hereby dismissed.
Order Date :- 06.10.2017 NLY