Allahabad High Court
Nand Kishore vs Addl. District Judge And Ors. on 6 April, 2007
Equivalent citations: 2007(3)AWC2982
Author: Prakash Krishna
Bench: Prakash Krishna
JUDGMENT Prakash Krishna, J.
1. This is tenant/s petition. It arises out of an application filed by the landlady respondents for release of the disputed shop which is situate in a room of house No. 127 Naya Meerapatti, Allahabad. The petitioner is carrying on the business of self dynamo and battery at monthly rent of Rs. 250. Smt. Chandra Prabha Devi (since deceased), the landlady of the premises filed a release application of the shop for the bona fide need of her two unemployed sons Ashok Kumar and Manoj Kumar. The said shop is situate on main G.T. Road. It was stated in the release application that the landlady alongwith her family which consists of five married couples is residing in two rooms accommodation of the same building behind the disputed shop. She pleaded that she will get a shop of motor parts opened in the disputed shop so that her two sons Ashok Kumar and Manoj Kumar may earn their livelihood and settle in the life. A written statement by way of reply was filed by the petitioner denying the need of the landlady. Alongwith the written statement an affidavit of two paragraphs verifying the contents of the reply/written statement was also filed. The release application was allowed by the Prescribed Authority by the order dated 29th of July, 1998 on the finding that the needs of the landlady is bona fide and genuine and she would suffer greater hardship in case the release application is rejected. Against the said order Rent Control Appeal No. 191 of 1998 was filed which has been dismissed by the impugned order dated 17th of November, 2006 by the Court below.
2. Shri G. S. Srivastava, the learned Counsel for the petitioner in support of the writ petition submitted the following two points:
1. That no opportunity of hearing was afforded to the petitioner by the Prescribed Authority while deciding the release application as the release application was decided, according to him ex parte without hearing the arguments of the learned Counsel for the petitioner.
2. The tenant petitioner had filed reply to the release application as also affidavit and therefore, the observation made in the judgment of the Prescribed Authority that no affidavit was filed by the petitioner is incorrect.
3. In response, the learned Counsel for the respondent submitted that the petitioner is in habit of taking all sorts of technical objections and shifting his stand in the various stages of proceedings. The counsel for the petitioner had advanced the argument before the Prescribed Authority and the contention that the arguments were not heard is factually and legally incorrect. It was further submitted that the petitioner tenant's counsel himself stated that he does not want to file any evidence in support of his objections, as noted in the order-sheet dated 20.2.1998. Therefore, no prejudice has been caused to the petitioner in any manner.
4. The relevant facts so far as it relates to point No. 1 is concerned may be noted. The contention of the learned Counsel for the petitioner is that the case was received on transfer on 17.7.1998 by the Court of Special C.J.M., Allahabad from the Court of J.S.C.C. vide District Judge's order dated 30.6.1998. Thereafter, it was ordered to be put up on the date fixed, i.e., 8th of July, 1998 which happened to be a holiday. it was taken on the next day but on account of the resolution of the bar that no adverse order be passed, no order was passed and 13th of July, 1998 was the next date fixed. On that day, the counsel for the landlady was present but none was present on behalf of the tenant and it was ordered that the case be placed on 22.7.1998 and notice be given to the opposite party, i.e., the tenant who is petitioner herein. On 22nd of July, 1998 it was found that notice was not given to the learned Counsel for the tenant and 27th of July, 1998 was the next date fixed. On that day the case was heard on merits and the Judgment was reserved which was delivered on 29th of July, 1998. The order-sheet dated 29th of July, 1998 mentions that the argument of the learned Counsel for the applicant (landlady) was heard. On the basis of the said entry in the order-sheet the learned Counsel for the petitioner argued that the case was decided ex parte and none appeared to argue out the case on 27th of July, 1998. He submits that the Judgment of the Prescribed Authority be set aside and the matter be restored back to the Prescribed Authority for afresh decision after affording opportunity of hearing to the parties concerned. The said submission was not accepted by the appellate court on the ground that in the judgment, the Prescribed Authority has mentioned that he heard the counsel for the parties. The contention of the petitioner's counsel is that in view of the entry made in the order-sheet dated 22.7.1998, it is established that the petitioner was not heard by the Prescribed Authority.
5. The question, thus, falls for determination before this Court is whether the petitioner's counsel was heard by the Prescribed Authority or not.
6. Pointedly, a query was put by the Court as to why an application for setting aside of the order of the Prescribed Authority if it was ex parte, was not filed. No satisfactory reply has been given by the learned Counsel for the petitioner. Section 34 of the Act prescribes the powers of the various authorities and procedure to be followed by them while deciding a dispute between the parties. It provides that the powers vested in civil court under the Code of Civil Procedure when trying a suit shall be vested in the District Magistrate, the Prescribed Authority or any appellate or revising authority in respect of the matters specified therein. Clause (g) of Section 34 (1) says that besides the matters enumerated in Clauses (a) to (f), any other matter may be prescribed. Rule 32 of the Rules framed under the Act specifically confers power on the District Magistrate, the Prescribed authority or the appellate or revising authority as the case may be, to set aside an ex parte order on sufficient cause including an ex parte order passed under Section 21 of the Act releasing any building or specified part thereof or any land appurtenant to such building. Initially, it was argued that there is no provision either under the Act or the Rules conferring power on the Prescribed Authority to recall or set aside the ex parte order. But the said argument was not pressed any further when his attention was drawn towards the Section 34 of the Act and Rule 32 of the Rules framed under the Act. No doubt, it is open for a party instead of filing an application for setting aside the ex parte order, he may elect to file an appeal against the alleged ex parte order. But certainly non-filing of an application which is expedient and speedy remedy by the petitioner on the facts of the present case is a very relevant circumstance. Had the counsel not argued the matter before the Prescribed Authority he could have very easily pointed out this fact to the Court concerned by filing an application and I see no reason if the Court inadvertently mentioned in the Judgment that it heard the counsel for the parties, not to have rectified the mistake.
7. A copy of the memorandum of the appeal has been annexed as Annexure-4 to the writ petition. The learned Counsel for the petitioner was asked to point out the grounds, if any, in this regard taken in the memo of the appeal. He submitted that the grounds No. 2, 8 and 9 which are reproduced below supports his contention that the petitioner was not heard by the Prescribed Authority before the Judgment:
2. Because, the Court below without giving any proper opportunity of hearing and adducing the evidence and plead the case by filing W.S./C.A. By the appellant passed ex parte order which is not sustainable under law.
8. Because, after the case received from transfer to the Court of J.S.C.C., Allahabad, the Court below did not issue any notice to the appellant and also did not inform the date fixed by the Court for further hearing and argument and as such has failed to follow the mandatory provision of Rule 89A of General Rule Civil. The Court below did not send any information to the registered address of the appellant informing the date fixed and have decided the case ex parte.
9. Because, the reply and affidavit on record filed by the appellant in support of his bona fide need were not considered and discussed by the Court below.
8. It is important to note that the memo of appeal contains 14 grounds in all. But in none of the grounds it has been stated specifically that the Prescribed Authority decided the case without hearing the tenant's counsel ex parte and the observations made in the order of the Prescribed Authority and the contrary observations made in the order of the Prescribed Authority, is incorrect. It is an acknowledged legal proposition that the statement made in a Judgment or a judicial order is taken to be correct. It has been held by various judicial pronouncements of the Apex Court that if there is some inaccuracy the remedy lies to file an application before the Court concerned immediately inviting attention of the Court towards the alleged mistake. It is the Court concerned who is in the best position to say as to what had transpired before it vide M.M.B. Catholics and Anr. v. M. P. Athanasius and Ors. AIR 1954 SC 526. The relevant paragraph of the report is reproduced below:
The proper procedure is to move the Court in whose judgment the error is alleged to have crept in. The application by way of review is to be made to the Court whose Judgment is said to be founded on a misconception as to the concession made by the advocate appearing before it. A misconception by the Court of a concession made by the advocate or of the attitude taken up by the party appears to be a ground analogous to the grounds set forth in the first part of the review section and affords a good and cogent ground for review. There is no reason to construe the word "record" in a very restricted sense and include within that term only the document which initiates the proceedings, the pleadings and the adjudication and exclude the evidence and other parts of the record.
Further, when the error complained of is that the Court assumed that a concession had been made when none had in fact been made or that the Court misconceived the terms of the concession or the scope and extent of it, it will not generally appear on the record but will have to be brought before the Court by way of an affidavit and this can only be done by way of review. The misconception of the Court must be regarded as sufficient reason analogous to an error on the face of the record. It is permissible to rely on the affidavit as an additional ground for review of the Judgment case law discussed.
9. Again the Apex Court in State of Maharashtra v. Ramdas Shrlnivas Nayak in para 9, has reiterated the above principle of law with the observation that the statement made in a Judgment of a fact is "conclusive".
Gauri Shankar v. Hindustan Trust (Pvt.) Ltd. AIR 1972 (2) SC 209 1, is an authority for the proposition that raising a point in the memo of appeal is not sufficient to show that the point was argued or pressed before the appellate court and the statement in the judgment that no such point was argued has prima facie to be accepted as correct.
10. In Chitra Kumari (Smt.) v. Union of India and Ors. , the Apex Court has held as follows;
...It is settled law that one has to proceed on the basis of what has been recorded by the Court. If any party feels aggrieved by what has been recorded by the Court a clarification was sought, by way of the review petition, to which as stated above, fresh documents were purported to be attached for the first time....
11. In the light of the aforesaid legal position, the proper remedy for the petitioner is to have approached the Court concerned, i.e., the Prescribed Authority. Coupled with the fact that there is no specific ground in the memo of the appeal that the petitioner's counsel was not heard and otherwise the observations made in the Judgment of the Prescribed Authority, is incorrect, the submission made by the learned Counsel for the petitioner has got no force.
12. A judicial notice can be taken of the fact that the order sheets are maintained by a reader of the Court. If there is some discrepancy in the order sheet written by the reader of the Court and in the Judgment delivered by the Court, the assertion made in the judgment deserves greater credibility and it is more authentic.
13. The another limb of the argument of the petitioner is that the notice as required under Rule 89A (4) (reproduced below) was not given to the petitioner requires consideration.
14. Rule 89 A of General Rules (Civil) for the sake of convenience is reproduced below:
89A (1) When a case, i.e., a suit, appeal or other proceedings in which a date for attendance of a party or the parties in a particular court has been fixed, is transferred from that court to another, the former court shall record the order of transfer in the order-sheet and get it signed by counsel of the parties; if any party is unrepresented information shall be sent to his registered address. The case shall be called out by the other court on the date already fixed by the transferring court and the parties noted.
(2) A note to the effect that a party or the parties have been informed in accordance with Sub-rule (1) shall be made on the record by the transferring court.
(3) Whether cases are transferred in a large number the Court from which they are transferred shall, besides following the procedure laid down in Sub-rule (1), draw up a list mentioning in it the numbers and years of the cases and the names of the parties and their counsel, and shall cause one copy of it to be posted on the notice-board of the local bar association for information of the members of the bar and another copy to be pasted on the notice-board of the Court for information of the general public. It shall also be sent to the other court alongwith the records of the transferred cases a copy of the list (for relevant extract of it), the other court shall paste it on its own notice-board. If the other court is situated in a different place in which there is another bar association, an extra copy of the list shall be sent to it for being pasted on the notice-board of the bar association.
(4) The Court to which cases are transferred shall not proceed without satisfying itself that the parties or their counsel, as the case may be, have been informed of the transfer.
15. The submission of the petitioner is that no registered notice was given by the transferring court informing him about the date fixed in the case. Rule 89A of the General Rules (Civil) provides that a case when transferred from one court to another the Court from which it has been transferred shall give notice to the counsel of the parties and if any party is unrepresented, information shall be sent to his registered address. Sub-rule (4) provides that the Court to which cases are transferred shall not proceed without satisfying itself that the parties or their counsel, as the case may be, have been informed of the transfer. The submission as well as the grounds taken in the Court below in the memo of appeal is that no registered notice was served on the petitioner (appellant therein) vide grounds 8 and 9 already reproduced above. There is no specific ground that information was not given to the petitioner's counsel by the' transferring court, i.e., the Prescribed Authority of the date, i.e., 27.7.1998. As per ground No. 8 only this much has been stated by the petitioner that the Court below did not issue any notice to him and also did not inform the date fixed by the Court for further hearing and the argument. The said averments are not sufficient to show that no information was given to the learned Counsel for the petitioner by the trial court. In this fact situation the judgment relied upon by the learned Counsel for the petitioner Balveer Singh Chauhan v. Vijai Kumar Agrawal 1987 (1) ARC 336, has no application to the facts of the present case. The said decision was rendered on an application filed by the defendant tenant under Order IX, Rule 13 for setting aside the ex parte decree. In that context it was held therein that the Court decided the suit without giving any notice to the" party concerned and it possessed inherent powers to recall the ex parte decree.
16. The counsel of the petitioner who conducted the case before the Prescribed Authority has not come forward to say that no notice regarding the hearing of the release application was given to him by the Prescribed Authority. Except making a general statement that too in the memo of the appeal, there is no evidence of unimpeachable character to show that no notice was given to the local counsel of the petitioner who conducted the case before the Prescribed Authority. The law, as demonstrated above is fairly settled and In absence of any material of clinching nature, a bald assertion of the petitioner that notice was not given to counsel by the Prescribed Authority, in the face of the specific statement made In the order of the Prescribed Authority that the counsel for the parties were heard. it is not possible to accept the said contention of the petitioner and 1 find no illegality In the Judgment of the appellate authority on this point. In this connection the following points are relevant herein:
(1) The conduct of the petitioner also assumes importance to judge veracity of his above contention. The learned Counsel for the respondents with the help of the order sheet demonstrated before this Court that on three occasions, i.e., on 13th of September, 1996, 20th of February, 1996 and 21st of July, 1997 the Prescribed Authority passed the order to proceed ex parte which were, on the application of the petitioner were recalled subsequently. (2) The petitioner's brother Bhagelu applied for his impleadment in the release proceedings and the said application was rejected by the order dated 4th of December, 1997, claiming himself as tenant of the disputed shop. (3) The petitioner in order to prolong the litigation filed an application for spot inspection dated 22.12.1997 with the allegation that a Vakil Commissioner be appointed to ascertain as to whether Bhagelu is a tenant of the disputed shop. This follows that the petitioner and his brother Bhagelu were hands in glove. The said application on contest was rejected on 12th of January, 1998. On 20th of February, 1998, the petitioner's counsel got his statement recorded that he does not want to give any further evidence and thereafter the matter was posted for final hearing. (4) Before the appellate court it was argued by the petitioner that the Judgment and order of the Prescribed Authority is null and void as he was not competent to exercise the powers of the Prescribed Authority. The appellate court called for the necessary record from the office of the learned District Judge and found that Shri Vijai Verma, Judge Small Causes Court was authorised by the learned District Judge under Section 3A of the U. P. Act No. 13 of 1972 by the order dated 30th of June, 1998 to exercise powers of the Prescribed Authority conferred under the provisions of the U. P. Act No. 13 of 1972. Thus, the appellate court rejected the contention of the appellant that the judgment and order of the trial court is without Jurisdiction. (5) When the matter was heard on earlier occasion on 20th of February, 2007, the learned Counsel for the contesting respondent raised an objection that the tenant has not paid any rent since year 1994. The said contention was refuted by the learned Counsel for the petitioner tenant. The petitioner was directed by the order dated 20th of February, 2007 to place relevant material before the Court to show that he has paid up to date rent. Consequently, a supplementary affidavit was filed wherein statement of account of payment of rent from the year 1994 to year 2007 has been given. According to It the tenant is regularly paying the rent to the landlord and the said factum is noted in a copy maintained by them. Admittedly, there is no signature of landlord nor there is any rent receipt. The respondent landlord challenged the authenticity of the said diary maintained by the petitioner. Prima facie this Court is of the view what the landlord respondent says is correct for the simple reason that the litigation between the parties is going on since year 1996 and is being hotly contested by the parties. It is against the human conduct and nature that when a hotly contested litigation is going on In between the landlord and tenant, the tenant would continue to pay the rent to landlord without obtaining receipt or any document evidencing the payment. In this connection the learned Counsel for the respondents invited the attention of the Court towards a copy of the affidavit filed before the Prescribed Authority wherein It was asserted that the tenant is not paying any rent since 10th of February, 1994 vide paragraph 3 of the affidavit dated 2.5.1997 to Vinay Kumar son of Santosh Kumar. The said affidavit though filed before Prescribed Authority was not even controverted by the petitioner. This also shows that the petitioner tenant is enjoying the disputed property without paying any rent.
17. In view of the discussion made above, there is no substance in the first point urged by the learned Counsel for the petitioner and the same is hereby rejected.
18. Now, I take up the second point dealing with regard to the observation made in the order of the Prescribed Authority that no counter-affidavit was filed by the petitioner tenant in the release proceedings. To this the contention is that the averments made in the written statement/reply to the release application was sworn on affidavits wherein It was deposed that the contents of paras 1 to 23 of the accompanying reply are true to personal knowledge of the deponent Nand Kishore. The observation made in the order of the Prescribed Authority that no counter-affidavit was filed by the petitioner should be understood and read in the context of the facts of the case. In the earlier part of the said observation the Prescribed Authority has observed that in support of the release application Vinay Kumar and Chandra Prabha (deceased landlady) filed affidavits In support of the release application. In this context it was stated by the learned Prescribed Authority that the said affidavits were not countered by filing a counter-affidavit. The Prescribed Authority has no where mentioned that the petitioner tenant has not filed any affidavit. What the Prescribed Authority has mentioned is that the petitioner tenant has not filed "any counter-affidavit." Thus the said point is meritless and the same is hereby rejected.
19. Apart from the above, the learned Counsel for the respondent rightly pointed out that the assertion made by the landlady that her two sons are unemployed was not disputed by the petitioner. The only defence raised by the petitioner was that the petitioner tenant's business is of long standing and as such he would suffer greater hardship if the release application is allowed.
20. In absence of any plea that the landlady's two sons are employed or gainfully engaged in some business, profession or vocation, the finding recorded by the two courts below on the question of bona fide need is legally sound. A copy of sketch map has been annexed alongwith the counter-affidavit which shows that there are two residential rooms behind that shop in dispute besides kitchen and courtyard.
21. In Mst. Bega Begum and Ors. v. Abdul Ahad Khan (dead) by L.Rs. and Ors. , part materia provision contained in J. and K. Rent Act came up for the consideration before Apex Court. It was observed that it is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed but such an event would happen whenever a decree for eviction is passed and merely because the tenant will be ousted from the premises where he was running his activity cannot, by itself, be considered to be a hardship and be a valid ground for refusing the landlord a decree for eviction. In deciding the extent of the hardship, each party has to prove its relative advantages or disadvantages will be suffered by the defendants and that they were remediable. The owner of the property cannot be denied eviction and compelled to live poorly merely to enable the tenants to carry on their flourishing business activity at the cost of the landlord. The fact that there is no other means for the landlord to augment his income except by getting the tenancy premises vacated compared against the conduct of the tenant who having obtained the premises for a fixed number of years has overstayed and enjoyed the premises for a long period of time are relevant factors not to deprive the landlord from the possession over the tenancy premises and recording a finding of no equity in favour of the tenants continuing in possession any further. If the tenants prove that they will not be able to get any accommodation anywhere in the city, that may be a relevant consideration. However, the tenant cannot insist on getting an alternative accommodation of a similar nature in the same locality because that will be asking for the impossible. What are to be weighed as relevant factors are the comparative inconvenience, loss, trouble and prejudice.
22. The above proposition of law has been reiterated by the Apex Court recently in Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada . No attempt has been made by the petitioner tenant to obtain or secure an alternative accommodation and in this view of the matter the finding of the comparative hardship has been rightly recorded against him by the Courts below.
23. No other point was pressed by the learned Counsel for the petitioner. There is no merit in the writ petition. The writ petition is dismissed summarily. No order as to costs.