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Allahabad High Court · body

2010 DIGILAW 2385 (ALL)

Sandeep Kapoor v. Rajiv Kumar Sharma and others

2010-08-08

RAKESH TIWARI

body2010
Rakesh Tiwari, J.- Heard Counsel for the parties and perused the record. 2. Landlord respondent filed SCC suit No. 2 of 2005 against the petitioner and other tenants for their eviction from the shop in dispute and arrears of rent. The Judge Small Causes Court, Budaun oh 2.9.2005 ordered the suit to proceed ex parte. 3. An application under Order IX, Rule 7, C.P.C. was moved by tenant defen­dant- Subhash Kapoor for recall of the or­der dated 2.9.2005 which was rejected by order dated 22.1.2008. Aggrieved by the order, tenant Subhash Kapoor filed a revi­sion which was also dismissed by the Revi-sional Court vide order dated 19.3.2008. 4. The Judge Small Causes Court, Budaun decided SCC suit No. 2 of 2005 ex parte by order dated 3.4.2008. The peti­tioner and Subhash Kapoor filed an appli­cation under Order IX, Rule 13, C.P.C. for recalling aforesaid orders dated 3.4.2008 and 2.9.2005 which was rejected by the im­pugned order dated 10.5.2010. Revision filed by the petitioner against the order dated 10.5.2010, has also been dismissed by Additional District Judge, Budaun vide im­pugned order dated 21.10.2010. 5. Contention of the Counsel for peti­tioner in assailing the orders impugned., is that main question as to whether the tenant defendants were served or not, was not considered by the Trial Court as well as the Revisional Court. He further submits that earlier applications of the petitioner under Order IX, Rule 7, C.P.C. and later on under Order IX, Rule 13, C.P.C. were maintain­able with full force and the Court below erroneously rejected the application under Order IX, Rule 13, on the ground that ear­lier application under Order IX, Rule 7 was rejected. His last contention is that the pro­cedure prescribed under Order V, Rules 17, 18 and 19, C.P.C. was never followed and no service was ever effected upon the de­fendants, as such the Court below has erred in not deciding the applications on merits and erroneously held that they were not maintainable. Thus, according to learned counsel for the petitioner, an ille­gality has been committed by the Courts below on relying upon earlier defaults of the petitioner. 6. From perusal of order dated 22.1.2008, it appears that case was listed for orders on application paper No. 24-G and its objection paper No. 29-G. The applica­tion paper No. 24-G was moved for recall of the order dated 2.9.2005. 6. From perusal of order dated 22.1.2008, it appears that case was listed for orders on application paper No. 24-G and its objection paper No. 29-G. The applica­tion paper No. 24-G was moved for recall of the order dated 2.9.2005. The Court be­low in the order held that case was insti­tuted on 29.3.2005 and defendant opposite parties had been sent summons by regis­tered post for their appearance; that by or­der dated 2.9.2005, the Court found service upon the defendants to be sufficient on ground of refusal and ordered the case to proceed exparte; that after hearing argu­ments on 26.11.2005, the case was fixed for 3.12.2005 for ex parte order. However, on 3.12.2005 the petitioner moved an applica­tion for correction in the name as Rajeev Kumar Sharma which had been wrongly mentioned as Rajeev Kumar Sharmi, which was allowed. Thereafter, the case was again fixed for decision on 16.1.2006. The petitioner defendant moved an application dated 13.1.2006 paper No. 21-G as well as application dated 16.1.2006 before the Court below for permitting them to deposit rent on behalf of defendant No. 2 and 3, to which objections were filed by the plaintiff on 15.2.2006. But the defendants neither participated in the proceedings nor argued the matter, rather they continued to seek adjournments. This fact has also been noted on the order sheet and also appears from the perusal of order dated 22.1.2008 that the petitioner defendants were not arguing the matter though adjournments were taken. In these circumstances, the Court below passed the following order: @ Hindi @ 7. Contention of the Counsel for peti­tioner that in the aforesaid circumstances, the application under Order IX, Rule 13, C.P.C. for recall of the order has wrongly been rejected as the applicant (defendant petitioner) was under training at Lucknow when the Court by order dated 2.9.2005 had found the service to be sufficient. 8. The case was then listed on 9.11.2006, on which date, the petitioner nei­ther appeared nor moved any application for adjournment, as such application paper no 24-G was rejected and 2.12. 2006 was fixed for ex-parte evidence. 8. The case was then listed on 9.11.2006, on which date, the petitioner nei­ther appeared nor moved any application for adjournment, as such application paper no 24-G was rejected and 2.12. 2006 was fixed for ex-parte evidence. Thereafter, it appears that petitioner defendant moved an application paper No. 38-G alongwith affidavit for recall of the order dated 9.11.2006 to which objection was filed by the plaintiff respondent and the Court fixed 22.12.2006 for hearing/disposal of application paper No. 38-G. After hearing the parties on 14.3.2007, the case was fixed for orders on 19.3.2007, when the application paper No. 38-G of the defendant peti­tioner was accepted upon cost of Rs. 125/-and order dated 9.11.2006 was recalled. The case was again listed on 26.4.2007 and 25.9.2007, when the Court granted ad­journment to the petitioner defendant upon cost of Rs. 100/- as a last opportunity. 9. In the aforesaid backdrop, the Court below has found that from perusal of the record, it is evident that application paper No. 24-G has been filed more than two years back by the defendant but he is only seeking adjournments after adjourn­ments and not arguing it but is delaying the matter, as such the application was re­jected vide order dated 22,1.2008. 10. By order dated 19.3. 2008, the revi­sion filed in the aforesaid SCC case was also dismissed as the Revisional Court found that there is no illegality or infirmity.in the order dated 22.1.2008 passed by the Court below on the ground of maintain­ability. 11. Pursuant to the order dated 3.4.2008, the suit was decreed in following terms: @ Hindi @ 12. It has also come on record that pe­titioner has not come with clean hands as he had concealed the fact that he had knowledge that the case was fixed on 12.1.2006. Relevant findings of the Court in this regard on the application under Order IX, Rule 13, are thus: @ Hindi @ 13. It appears from the record that pe­titioner had refused the summons and on the date when order was passed he was in Lucknow, that will not invalidate the order as the Court has given categorical finding that petitioner has not come to know about the case for the first time after passing of the ex-parte order. It appears from the record that pe­titioner had refused the summons and on the date when order was passed he was in Lucknow, that will not invalidate the order as the Court has given categorical finding that petitioner has not come to know about the case for the first time after passing of the ex-parte order. The Court below has also found that petitioner has not only in­spected the files prior to passing of the ex-parte order but has also participated in the proceedings after 2.7.2005 when he had moved application for recall of the order. Yet inspite of taking adjournments for al­most two years, he did not argue the mat­ter. 14. Since, application of the petitioner under Order IX, Rule 7 had been rejected, the application under Order IX, Rule 13 was not maintainable. Application of the petitioner paper No. 24-G was also rejected as none had appeared on his behalf on the last opportunity given by fixing date of 22.1.2008 by the Court. The Court has re­corded a categorical finding of fact that in fact it appears from the record that appli­cant defendant was impeding progress of the case to ensure that other party would not get justice and that he had not stated correct facts under Order IX, Rule 13 C.P.C. 15. In the facts and circumstances of the case and in the backdrop of findings of fact recorded by the Courts below, the pro­visions of Order V, Rules 17, 18 and 19, C.P.C. do not apply as the petitioner had appeared and inspected the files prior to passing of the ex-parte order. 16. Both the Courts below have re­corded concurrent findings of fact against the petitioner. It is apparent that he has not come with clean hands. In fact he was tak­ing undue advantage of the leniency of the Court and not allowing the plaintiff to get justice. 17. For all the reasons stated above, this Court is not inclined to interfere with the orders impugned. The petition is ac­cordingly dismissed. No order as to costs. Petition Dismissed.