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1989 DIGILAW 453 (ALL)

Madhuri Misra v. Shanti Devl

1989-05-19

A.N.DIKSHITA

body1989
JUDGMENT A. N. Dikshita, J. - The applicants have filed this revision (Revision No. 276 of 198') being aggrieved against the order dated 30389 passed by Sri A. K. Kaushik, IV Additional Civil Judge, Allahabad, dismissing their application (130C) in Suit No. 342 of 1983. 2. Briefly stated the facts are that the applicants filed Suit No. 342 of 1983, titling Madhuri Misra and others v. Smt. Shinti Devi and others for a permanent injunction restraining the defendants from disturbing the plaintiff's (applicants') possession as also from registering the saledeed presented on 9583 purporting to have been executed by Defendant No. 1 Smt. Shanti Devi (Opposite Party No. 1) in favour of Janta Upniveshan Avas Evam Nirman Sahkari Samiti Ltd. This suit was contested by the defendants Opposite Parties. 3. On 2521989 during the pendency of the suit an application was filed on behalf of the plaintiff for summoning the rules and byelaws from U.P. Sahkari Avas Sangh Ltd. The Opposite Parties (defendants) contested this application and the trial Court by its order dated 1331989 rejected this application, thus giving rise to this, revision. 4. The Opp. Parties have put in appearance through Sri R. P. Tripathi and Sri P. N. Kapoor. Learned counsel for the parties submitted that after exchange of the counter affidavit and rejoinder affidavit the revision be disposed of at the admission stage. The counter and rejoinder affidavit have been filed and the revision is being disposed of finally on merits at the admission stage. 5. Applicant (Smt.) Madhuri Misra had also preferred another revision (revision No. 290 of 89) against the order dated 1331989 passed by Sri A. K. Kaushik, IV Additional Civil Judge, Allahabad in Suit No. 170 of 1985. The facts of this suit are that Janta Upniveshan Avas Evam Nirman Sahkari Samiti Ltd. filed a suit against the applicants for their dispossession and recovery of damages. In this suit Smt. Madhuri Misra is arrayed as defendant No. 1 alongwith other defendants. An application identical to one filed in suit No. 342 of 83 was filed on behalf of the defendants that the byelaws of the Janta Upniveshan Avas Evam Nirman Sahkari Samiti Ltd. Allahabad be produced. This was also opposed by the plaintiff Opposite Parties. As mentioned above, this application was also rejected on the similar ground as was rejected in Suit No. 342 of 83, thus giving rise to this revision. This was also opposed by the plaintiff Opposite Parties. As mentioned above, this application was also rejected on the similar ground as was rejected in Suit No. 342 of 83, thus giving rise to this revision. 6. With the consent of the parties this revision is also being disposed of finally at the admission stage. 7. These two revisions are disposed of simultaneously as prayed by the learned counsel for the parties. Heard learned counsel for the parties. Learned counsel for the applicant Sri K. N. Tripathi has submitted that the defendant No. 5 Janta Upniveshan Avas Evam Nirman Sahkari Samiti Ltd. has filed a photostat copy of the certificate of registration granted by the Registrar and also a photostat copy of a part of 'Niyamawali'. In other suit also such copies were filed by Janta Upniveshaa Avas Evam Nirman Sahkari Samiti Ltd. Smt. Madhuri Misra, applicant in both these revisions filed an application for the production of the original byelaws as well as the original registration. 8. It has been submitted that the trial court materially erred in the exercise of its jurisdiction as it amounts to throttling the case of the plaintiff. It has also been vehemently submitted that the trial court has not disposed of this application finally and has more or less kept it pending for disposal at the time of the arguments in the case. If at that stage, it has been submitted, it is found that the photostat copy of the papers filed by Janta Upniveshan Avas Evam Nirman Sahkari Samitt Ltd., Allahabad, is not admissible then it would adversely affect the interest of the applicant, who would be deprived of presenting the necessary evidence to substantiate her case. 9. Learned counsel for the Opposite Party, Sri R. P. Tripathi has very strenuously castigated the conduct of the applicants in stalling the proceedings of the suit by seeking several adjournments. Suffice it to say that it is for the Presiding Officer to grant the adjournment if the ground is found to be sufficient. Having perused the order sheet it is found that as and when the adjournments Were sought by the plaintiff, the Court found the reason to be sufficient, but to compensate, adequate costs Were imposed. Suffice it to say that it is for the Presiding Officer to grant the adjournment if the ground is found to be sufficient. Having perused the order sheet it is found that as and when the adjournments Were sought by the plaintiff, the Court found the reason to be sufficient, but to compensate, adequate costs Were imposed. There may be several circumstances in which the party may be compelled to seek the adjournment and as the common practice is, such adjournments are allowed on payment of costs. 10. It is thus, found that no doubt the case has been pending for few years. It could not see the light of the day when it could be disposed of but that by itself cannet deprive a party to prosecute the case. 11. Learned counsel for the Opposite Party, Sri R. P. Tripathi, has further submitted that this revision is against the interlocutory order and is, thus, not maintainable. It is very difficult to agree to such a submission. The Court below, while rejecting the application and keeping the issue alive as to whether photostat copy should be read in evidence of not, left it at the stage of the arguments. The issue was, thus, kept alive but had the plaintiff been deprived of an opportunity at that stage finding that it cannot be read in evidence then the interest of the applicant would have been adversely affected. 12. It is settled that the courts below are not swayed by the conduct of the parties while disposing of an application. The discretion has to be based on sound judicial principles. Presently I find the approach of the trial Court to be arbitrary and in any case bereft of any sound reason. Such an approach has unnecessarily invited the controversy which has further delayed the proceedings. Arbitrariness had neither attired the wisdom of the courts nor has it bejewelled their robe. In our democratic fibre it is expected that arbitrary approach is seldom required and the case is to proceed as per procedure laid down. The trial Court seems to have acted as a sovereign. 13. Such an approach of the trial court which has unnecessarily procrastinated the proceedings of the case is disapproved. In our democratic fibre it is expected that arbitrary approach is seldom required and the case is to proceed as per procedure laid down. The trial Court seems to have acted as a sovereign. 13. Such an approach of the trial court which has unnecessarily procrastinated the proceedings of the case is disapproved. Learned counsel for the Opposite Party Sri R. P. Tripathi has, however, very fairly submitted that he would file the original registration granted in favour of the Janta Upniveshan Avas Evam Nirman Sahkari Samiti Ltd. and copy of original Niyamawali. It is such an approach which deserves an applause. 14. In view of the above, both the revision No. 276 of 89 and 290 of 89 deserve to be allowed. The order passed by the Court below is liable to be set aside in view of the fact that the trial court has acted in exercise of its jurisdiction with material irregularity which tantamounts in the miscarriage of justice. 15. In the result both the revision No. 276 of 89 and 290 of 89 are hereby allowed, the order dated 1331989, in both suits is hereby set aside. Janta Upniveshan Avas Evam Nirman Sahkari Samiti, defendant No. 5 in Suit No. 342 of 1983 and plaintiff in Suit No. 170 of 1985 is hereby directed to file in Court the original of the registration and of Niyamawali in Suit No. 342 of 1983 and photostat copy thereof in Suit No. 170 of 1985 within a month. After the expiry of the said period the trial court is directed to fix a date after two months. The learned counsel for the parties be informed about the fixation of the date for final hearing. On that date the applicants may file application for summoning the original of the registration and Niyamawali from the Office of Uttar Pradesh sahkari as Sangh Ltd. 16. The summons shall be served through the process of the court but to avoid any delay Dasti summons may also be given to the learned counsel for Smt. Madhuri Misra. 17. The lower court shall proceed to dispose the suit expeditiously and if need be day by day as far as possible. 18. Costs on parties. (Revision allowed.)