YASHODA NANDAN SHUKLA v. XIII A D J KANPUR — 1999 DIGILAW 914 (ALL)

A. K. YOG, J. Heard Sri Manish Nigam (holding brief of Sri Janardan Sahai, Advocate) on behalf of counsel for petitioners and Sri S. M. Dayal, Advocate, on behalf of contesting respondent No. 2. 2. S. C. C. Suit No. 1426 of 1978 (Yashoda Nandan v. Nand Ram) was filed before Judge, Small Causes Court, Kanpur claiming recovery of arrears of rent and ejectment of the defendant-respondent No. 2 from the premises (mentioned in the plaint) wherein said defendant respondent was a tenant at the rate of Rs. 19 per month. 3. Undisputed facts of the case are that defendant-respondent No. 2 failed to make deposit on 15-2- 1979 (date men tioned in the summons) claimed to be the first date of hearing by the landlord- petitioners. A written statement is said to have been filed on 26th April 1979. The case was, however, adjourned on several occasions. Last date fixed being Septem ber 11, 1980 (as mentioned in paragraph 8 of the writ petition ). 4. On September 11, 1980 plaintiff filed application under Order XV, Rule 5, Code of Civil Procedure (hereinafter called c. P. C. ) and prayed that the defence be struck off. Court granted time for filing objections, petitioners claim that no ob jection was filed by the defendant against the said application (paragraph 9 of the petition), respondent No. 2, however, in paragraph 9 of the Counter Affidavit. al leges that he had filed objections on 23rd September, 1980. A true copy of the said objections has been filed as Annexure CA-1 to the counter affidavit. 5. A perusal of the said objections shows that cryptic and vague objections were taken; namely, application under Order XV, Rule 5, C. P. C. was misconceived and was on wrong facts and secondly the defendant had deposited rent up to December, 1980 in the Court. No details were given nor it was mentioned as to whether defendant denied first date of hearing being 15th February, 1979 (date mentioned in the summons ). 6. A true copy of the order-sheet of Suit No. 1426 of 1978, while pending before the Judge, Small Causes Court has been filed as Annexure-1 to the petition. No details were given nor it was mentioned as to whether defendant denied first date of hearing being 15th February, 1979 (date mentioned in the summons ). 6. A true copy of the order-sheet of Suit No. 1426 of 1978, while pending before the Judge, Small Causes Court has been filed as Annexure-1 to the petition. Perusal of the order-sheet shows that the application filed under Order XV, Rule 5, C. P. C. and the objections of the defendant were considered by the Judge, Small Causes Court and plaintiffs application under Order XV, Rule 5, C. P. C. (Paper No. 25 Ga), praying for striking off defendants defence was allowed and the defendants objections against the same were rejected on the ground that the defendant has not been depositing rent regularly month by month as contemplated under Order XV, Rule 5, C. P. C. The said order further shows that defendant ( (respondent No. 2) sought adjournment on August 21,1981 and also subsequently on the ground that he in tended to file revision against the order of the trial Court passed on application under Order XV, Rule 5, C. P. C. It appears that no revision was filed although defen dant obtained Adjournments on this score on several occasions. The Judge, Small Causes Court finally heard the case and decreed the suit vide judgment and order dated February 25, 1982 (copy has been filed as Annexure 2 to the petition ). 7. Feeling aggrieved tenant-respon dent No. 2 filed S. C. C. Revision No. 130 of 1982 (Nand Ram Savita v. Yashoda Nandan Shukla and another) under Section 25, Provincial Small Causes Court Act and the same has been! allowed by XIII Additional District Judge Kanpur with costs and the case has been remained to the Judge, Small Causes Court with liberty to the plaintiff to| make fresh application under Order XV, Rule5,c. RC. 8. Feeling aggrieved the plaintiff-landlord has filed the present petition and sought to challenge the said judgment and order dated 3rd February, 1983 passed by XIII Additional District Judge, Kanpur in S. C. C. Revision No. 130 of 1983, referred to above (Annexure 3 to the petition ). 9. The learned Counsel for the petitioners urged that Additional District Judge (respondent No. 1) has (. . . 9. The learned Counsel for the petitioners urged that Additional District Judge (respondent No. 1) has (. . . sic) and committed manifest error apparent on the face of record in taking the view that he could ignore subsequent Division Bench decision reported in 1982 Volume I ARC 665 since the Bench deciding the case was bound by life earlier Division Bench decision reported in 1980 L. L. J. 56. The learned Counsel for the petitioners fur ther urged that the question as to what should be first date of hearing ought to have been decided by the learned Addi tional District Judge in view of the law laid down by the Division Bench of this Court reported in 1j982 Volume I ARC 665 and that the Court below has erred in relying upon the earlier decision even if it was by the bench of same strength. The learned Counsel for the petitioners has further urged that the order of remand was not justified in the facts of the present case. Learned Counsel appearing on behalf of respondent No. 2 has attempted to con trovert the submissions made on behalf of the petitioners. 10. I have perused the judgment and order dated February 3, 1983 passed by XIII Additional District Judge, Kanpur (respondent No. 1 ). The Court below ac cepted the tenants contention that Order XV Rule 5, C. P. C. was amenable sub sequently at the stage of filing revision (under Section 25, Provincial Small Causes Court Act) against the final judg ment and order of the Judge, Small Causes Court deciding the suit itself. On the other hand said part of the judgment of the learned Additional District Judge has not been challenged in the writ petition. Learned counsel for the petitioners does not dispute said position. 11. The learned Additional District Judge in the second place observed in the impugned j udgment that first date of hear ing shall be the date when Court applies its mind to the lis involved in the case. Learned counsel for the petitioners does not dispute said position. 11. The learned Additional District Judge in the second place observed in the impugned j udgment that first date of hear ing shall be the date when Court applies its mind to the lis involved in the case. Learned Additional District Judge sup ported his view by relying upon a Division Bench decision reported in 1980 LLJ 56, decided by a Division Bench of this Court and ignored the subsequent decision of another Division Bench (same strength) of this Court reported in 1982 Volume I ARC 665 on the ground that subsequent Division Bench was bound by the law declared by the earlier Division Bench of the same strength. The Court below referred to the decision reported in AIR 1972sc52. 12. The learned Additional District Judge, however, committed no mistake in observing that the decision reported in AIR 1972 SC 52, has held the view that subsequent Division Bench is bound by the law already given by another Division Bench rendered anterior in time by the same Court. The learned Additional Dis trict Judge has, however, ignored the fact that the situation in the instant case was different inasmuch as the Supreme Court nowhere held that in case there are two contradictory decisions by the Bench of same strength, subordinate Court can ig nore decision given by subsequent Division Bench. 13. In the case reported in 1976 AWC 554 (FB), Ram Dhani v. Purshottam Lai Srivastava, this Court has held that in view of the conflicting judgments rendered by Benches of same strength, judicial dis cipline requires that later case is to be followed. The course adopted by the learned Additional District Judge cannot be justified and the same is not proper. The learned Counsel for the respondent has not been able to dispute the said position and it has been conceded that the judg ment and order passed by learned Addi tional District Judge (Annexure-3) is not correct to this extent. 14. The learned Additional District Judge while dealing in its judgment at second place committed error apparent on the face of the record, that the first date of hearing in the present case could not be before 25th February, 1992 when actually the Court below applied its mind to the lis between the parties to the suit. 14. The learned Additional District Judge while dealing in its judgment at second place committed error apparent on the face of the record, that the first date of hearing in the present case could not be before 25th February, 1992 when actually the Court below applied its mind to the lis between the parties to the suit. On this premise learned Additional District Judge observed that defence could not be struck off legally on an earlier date that is 3rd April, 1981. The learned Additional Dis trict Judge having erred in following the earlier Division Bench decision, his reasoning to decide as to which shall be the first date of hearing in the instant case is itself vitiated. The first date of hearing in the facts of the present case, and in view of the law laid down in the decision reported in 1982 Volume I-ACC 665 and sub sequently confirmed in the decision reported in 1984 ACJ 201 (Paragraph 16) Siya Ram v. District Judge, the first date of hearing shall be the date mentioned in the summons as contemplated and provided under Order XV, Rule 5, C. P. C. , as amended in the State of Uttar Pradesh prior to the filing of the said suit. 15. The learned Additional District Judge has in the third place, observed and concluded that appropriate deposit was made, proceeding on the basis that first date of hearing was after 3rd April, 1981 (i. e. the order when trial Court passed order directing to strike off defence ). The Court below further observed that the default in making deposit month by month as required under law was merely an ir regularity and the consequence thereof could be determined only after the first date of hearing (that is after 25th February, 1982) and not prior to that on the surmise that first date of hearing, as held by Judge, Small Causes Court, was not 15th February, 1979 by resorting to wrong and misconceived analogy as indicated above. 16. The impugned judgment and order dated 3rd February 1983 passed by XIII Additional District Judge, Kanpur cannot be sustained to the extent of its observations pertaining to the second and third place. The Learned Counsel for the petitioners has filed to show any illegality on merit in the order of the Judge. 16. The impugned judgment and order dated 3rd February 1983 passed by XIII Additional District Judge, Kanpur cannot be sustained to the extent of its observations pertaining to the second and third place. The Learned Counsel for the petitioners has filed to show any illegality on merit in the order of the Judge. Small Causes Court dated 3rd April 1981 con tained in Order Sheet (Annexure-1 to the petition ). The learned Counsel for the petitioners has not attempted to show any illegality or irregularity on merits as far as the judgment and order dated 25th February 1982 passed by the Judge, Small Causes Court, Kanpur (Annexure 2 to the petition) is concerned. 17. The learned Counsel for the petitioners has faintly suggested "during the course of his argument that the stand of the defendant was that there were no dues land hence there was no occasion of making deposit and sought to reply upon certain decisions of this Court. The learned Counsel for the petitioners failed to substantiate the said submission since it has never been the case of the defendant-respondent No. 2 before the Court below. This argument does not find mention in the objections (copy filed as Annexure CA-2) and the perusal of the judgment gassed by the Court below (Additional District Judge) shows that no such argu ment was raised before that court. In view of the above (. . . sic) with the circumstance that this writ petition has remained pend ing in this Court ever since 1983,1 find that no case for remanding the matter to the Additional District Judge has been made out. 18. Impugned judgment and order dated 3rd February, 1983 passed by XIII Additional District Judge, Kanpur (respondent No. 1) in S. C. C. Revision No. 730 of 1982 (Annexure-3 to the petition) is being set aside to the extent indicated above. The judgm4nt and order dated 25lh February 1982 parsed by learned Addi tional Judge, Small Causes Court, Kanpur in J. S. C. C. Suit No. 1426 of 1978, Yashoda Nandan v. Nand Ram (Annexure-2 to the petition) is hereby confirmed. 19. The writ petition stands allowed subject to the observations made above. There will be not order as to costs. Petition allowed. .