Allahabad High Court
Mohd. Shafeeq vs Presiding Officer/ Addl. Civil Judge ... on 31 October, 2022
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 6 Case :- MATTERS UNDER ARTICLE 227 No. - 3167 of 2022 Petitioner :- Mohd. Shafeeq Respondent :- Presiding Officer/ Addl. Civil Judge (S.D) Lko. Court No. 21, And Another Counsel for Petitioner :- Prakhar Misra Counsel for Respondent :- Gaurav Mehrotra,Lokendra Kumar Gupta Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioner, & Sri Lokendra Kumar Gupta learned counsel for the respondent No.5.
2. Instant petition has been filed praying for the following reliefs:-
"i. Issue an order setting aside the order 11.05.2022 passed by learned Presiding Officer/Judge Small Cause Court, Court No.21, Lucknow registered as P.A. Case No.45 of 2007 at annexure-1 and order dated 20.02.2020 passed by the Learned Prescribed Authority/JSCC, Lucknow in P.A. Case No.91/2015 PA no.45/2007 at annexure-2 in re: Ashok Kumar v. Mohd. Shafiq in the interest of justice.
ii. Issue such other suitable orders or directions which this Hon'ble Court may deem just, fit and proper n the circumstances of the case so as to protect the rights and interest of the Petitioners; and iii. Award the costs of the Petitionto the Petitioners."
3. After having heard learned counsel for the petitioner, this Court had passed a detailed order on 30.8.2022 which for convenience, is reproduced below:-
"Heard learned counsel for the petitioner.
No notice be issued to respondent no.2 at this stage taking into consideration the nature of order which is being passed.
The contention of learned counsel for the petitioner is that a case was filed by respondent no.2 in the year 2007 before the Prescribed Authority under Section 21(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, for release of the shop occupied by the petitioner. The ground taken in the said case was that the respondent no.2 has two sons and in order to settle them, the shop was required. During pendency of the aforesaid case, an application for amendment dated 30.07.2019 was filed by respondent no.2 under Order 6 Rule 17 read with Section 151 of the Civil Procedure Code, a copy of which is Annexure-5 to the petition, whereby certain additional grounds were sought to be indicated. The said application was numbered as C-54. The petitioner claims to have filed his objection to the same, which was numbered as C-56. Application C-54 duly finds mention in the order sheet starting from 30.07.2019. Upon filing of the objections to the same numbered as C-56, the same also finds reflected in the order sheet dated 13.11.2019 onwards. It is contended that the matter was listed on 20.02.2020 when the court heard both the applications i.e. C-54 and C-56 and directed for listing of the matter on 19.03.2020. On 19.03.2020, a general date was given and the matter was listed on 03.04.2020. There is no order sheet pertaining to 03.04.2020. Again an order was passed on 15.07.2020 whereby the court has again listed the applications C-54 and C-56 on a subsequent date. Similar orders continued to be passed on various dates as were fixed in the matter. Through an order dated 03.03.2021/20.03.2021 (Page 76) again the applications C-54 and C-56 were heard. On 17.03.2021 the case has been transferred to Additional Civil Judge (S.D.) Court No.20 by means of an administrative order. Subsequent thereto, the matter was listed on 20.03.2021 but there is no mention of the applications C-54 and C-56.
Learned counsel for the petitioner contends that despite the aforesaid order sheets showing the pendency of the applications C-54 and C-56 up to 20.03.2021 the court below had already passed an order allowing the amendment application vide order dated 20.02.2020 on payment of Rs.300/- as cost, a copy of which is part of Annexure-2 to the petition (Page 74). He contends that the order appears to be suspicious inasmuch as once in the order sheet both prior and subsequent to 20.02.2020 both the applications C-54 and C-56 continued to be reflected and were required to be heard as such it is not understood as to how the order dated 20.02.2020 was passed. He contends that it was only when an application for inspection of the file was filed by the petitioner on 21.03.2021 that the aforesaid facts came to his knowledge which has resulted in filing of an application for recall of order dated 20.02.2020 vide his application dated 05.05.2022, a copy of which is Annexure-7 to the petition, which has now resulted in the impugned order dated 11.05.2022, a copy of which is Annexure-1 to the petition, whereby his application has been rejected.
Learned counsel for the petitioner contends that by means of the impugned order dated 11.05.2022 the court below has considered the arguments raised by the petitioner as having no merit and an error on the part of the Clerk concerned which has resulted in both the applications C-54 and C-56 continued to be shown in the order sheet and thus has proceeded to reject the application.
The contention is that the aforesaid facts, as have been indicated by the petitioner, would not indicate that despite passing of the order dated 20.02.2020 there was a typographical error on the part of the Clerk concerned in showing the pendency of both the applications inasmuch as (a) cost of Rs.300/- has also not been deposited by respondent no.2 till date, and (b) there is no date indicated while carrying out the amendment in the said case.
Considering the aforesaid, let a copy of this petition be given to Sri Gaurav Mehrotra, learned counsel, who appears for the High Court, today itself to seek instructions on the following points:-
(a) as to how the order dated 20.02.2020 has been passed by the court concerned despite the subsequent order sheets showing the same to be pending;
(b) as to how the said amendments could be allowed to be incorporated once no cost had been paid to the petitioner, and
(c) as to how the amendment has been incorporated without indicating the date.
List this case after two weeks as fresh. Till then the further proceedings pertaining to Case No.45 of 2007 shall remain stayed."
4. From the perusal of the order dated 30.8.2022, it is apparent that the Court had required the learned counsel representing the High Court, to seek instructions on the following points which are:-
"(a) as to how the order dated 20.02.2020 has been passed by the court concerned despite the subsequent order sheets showing the same to be pending;
(b) as to how the said amendments could be allowed to be incorporated once no cost had been paid to the petitioner, and
(c) as to how the amendment has been incorporated without indicating the date."
5. On 29.9.2022, as instructions had been received by Sri Gaurav Mehrotra, learned counsel appearing for the High Court, this Court after considering the instructions, had passed the following order which for convenience is reproduced below:-
"Heard learned counsel for the petitioner, Sri Gaurav Mehrotra, learned counsel for the High Court and Sri Lokendra Kumar Gupta, learned counsel for respondent no.2.
In pursuance to the order of this Court dated 30.08.2022 Sri Mehrotra, learned counsel, states that he has received instructions from the concerned court.
Copy of the said instructions be kept on record.
With regard to query (a) raised by this Court, Sri Mehrotra contends that the order was passed on 20.02.2020 on the amendment application filed by respondent no.2 and the said order was also uploaded on CIS. He contends that pendency of applications C-54 and C-56 being shown in the subsequent order sheets was on account of clerical error inasmuch as once the order dated 20.02.2020 specifically indicated that both the applications have been heard as such it was obvious that an order would be passed and in fact was passed on 20.02.2020.
So far as queries (b) and (c) are concerned, they are related to query (a).
However, before proceeding with the matter the Court would require the date of uploading of the order dated 20.02.2020 on the CIS as has been indicated in the instructions referred to above. Sri Mehrotra may seek specific instructions as to when the order dated 20.02.2020 was uploaded on the CIS.
List this case within two weeks as fresh.
Interim order, if any, shall continue till the next date of listing."
6. From the perusal of the orders, it is apparent that the points as have been indicated by this Court in its order dated 30.8.2022 and as reiterated in its order dated 29.9.2022 requiring Sri Gaurav Mehrotra to seek instructions as to when the order dated 20.2.2020 was uploaded on CIS portal, and queries (b) and (c) being related to query (a) as such, the Court on the basis of instructions which have been passed on to the Court also and which are kept on record, the Court proceeds to decide the matter apart from the other arguments as raised by Sri Prakhar Mishra, learned counsel for the petitioner.
7. As per instructions which have been passed on today, it emerges that the order dated 20.2.2020 has been uploaded on the CIS portal on 7.3.2022 at "11.51 a.m.".
8. Thus, from the perusal of the aforesaid instructions it is apparent that despite the various grounds which have been taken by the learned counsel for the petitioner that the order never saw the light of the day and was alleged to have been inserted in the case file, it is apparent that the order dated 20.2.2020 was in fact uploaded on the CIS portal on 7.3.2020 and as such the said order cannot be said to be a non-existing order in the eyes of law. The Court also proceeds to record that the ordersheet which has indicated about the pendency of the amendment application which in fact was decided through the order dated 20.2.2020, appears to be an error on the part of the Court concerned and necessary orders be passed by the District Judge to its subordinate officials to be more careful in future. However, the order dated 20.2.2020 cannot be said to be per se illegal merely because the ordersheet of the subsequent dates continued to reflect the pendency of the amendment application.
9. The other ground which has been taken by Sri Prakhar Mishra to challenge the said order is that Chapter V Rule 145 of the General Rules (Civil) states that there shall be a separate entry in the order-sheet for each distinct order or event and that each separate entry shall bear a serial number and that the Judge shall put his initials on the order-sheet to signify its accuracy and correctness. The Court is of the considered view that once the order dated 20.2.2020 has been uploaded on CIS portal, as clearly comes out from the instructions that have been sent by the Court below, mere non-adherence to the provisions of Chapter-V Rule 145 of the General Rules (Civil) in the facts of the instant case would not invalidate the said order. The said argument is rejected.
10. Another argument raised by Sri Prakhar Mishra is that as the order dated 20.2.2020 required the cost of Rs.300/- to be deposited which has not been paid prior to the amendment being incorporated in the plaint, the same would vitiate the order of amendment. Further, as the amendment was not incorporated within a period of one week as such, the amendment cannot be permitted to be incorporated thereafter without there being an application under the provisions of Order VI Rule 18.
11. The said arguments though attractive on the face of it, merit outright rejection inasmuch as, the amendment which has been incorporated does not indicate about any such date and as such, it cannot be said as to whether the amendment has been incorporated after the time fixed by the Court. The non-payment of cost can at best be said to be a technical or procedural error for which the petitioner can always be compensated.
12. At this stage Sri Lokendra Kumar Gupta states that said cost has been received by the learned counsel appearing for the petitioner before the Court below on 2.8.2022 which fact is also not disputed by Sri Prakhar Mishra. Thus, the said arguments are also rejected.
13. Another submission of the learned counsel for the petitioner is that the order had been reserved on 30.1.2018 and the Court below could not have permitted the amendment application which has been filed subsequently by the plaintiff landlord.
14. Regarding this, the Court may peruse the order of the Court below dated 20.2.2020 from a perusal of which it emerges that the Court below has considered the provisions of Order VI Rule 17 and the Trial Court was of the view that the amendment application has to be allowed as the amendment is factual in nature and does not change the nature of the case. A conscious decision having been taken by the Court while dismissing the said application, this Court does not find any illegality in the said order.
15. At this stage, learned counsel for the petitioner states that the plaintiff/respondent is trying to change the nature of the case by filing the amendment application.
16. Elaborating the same, learned counsel for the petitioner contends that a perusal of the plaint would indicate that the bona fide need, as has been explained in the said plaint, was regarding there being no space left to accommodate the children of the plaintiff wherein the bona fide need was expressed for the purpose of requirement of shop in question for running a computer shop for the sons of the plaintiff. The said bona fide need was sought to be changed by filing amendment application by indicating that as the plaintiff has now retired and the plaintiff's wife is an astrologer as such the shop is required for the purpose of running a coaching institution of astrology in the said shop with the help of the husband. The said amendment application was filed only after the tenant i.e. is the petitioner herein had filed his objections to the application by contending that there was no bona fide need of the sons of the plaintiff as the sons have settled outside.
17. A perusal of the amendment application would indicate that the plaintiff has specifically indicated that as now he is retired the need of the shop has increased as his wife is also unemployed and the shop in question is required for his own need and the need is genuine and bona fide. The amendment application when read in conjunction with the averments made in the plaint more particularly, paragraph-16 of the plaint (page 110 of the petition) it clearly comes out that the application had been filed although indicating about the need for younger son of the plaintiff yet it was also indicated in para 16 of the plaint that the place where the applicant is residing is a joint family property and is not enough for accommodating both family of the applicant and starting any business there. Obviously, the averments contained in the plaint are to be read in conjunction with the amendment application and thus, once in the plaint itself it was indicated that the family property was not enough for accommodating the whole family and starting any business from there and the amendment application talks about the opening a coaching institution for astrology to be run by the wife with the help of the plaintiff husband, as such, it cannot be said that there was any change in the nature of the suit filed by the plaintiff.
18. Keeping in view the aforesaid discussions, no case for interference is made out. The petition is dismissed.
19. However, as an abundant precaution, it is indicated that the observations made above have only been made for the purpose of deciding the instant petition and would not be considered by the Court below while deciding the case on its own merit.
Order Date :- 31.10.2022 Rajneesh JR-PS)