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2010 DIGILAW 2688 (ALL)

Kalyan Singh v. Special Judge, Mathura and others

2010-09-01

RAKESH TIWARI

body2010
Rajesh Tiwari, J. - Heard Sri K.M. Tripathi holding the brief of learned Counsel for the petitioner as well as Sri Ashish Kumar Srivastava for the caveator-respondents. 2. Release application under section 21 (1) (a) was filed by Ashok Kumar son of Dayal Das under the U.P. Act No. 13 of 1972 which was registered as P.A. Case No. 20 of 2002 "Ashok Kumar v. Laxman Singh and others". Dayal Das claimed himself to be the owner and landlord on the basis of the decree dated 31.5.2001 passed in Civil Suit No. 777 of 2000 as well as the order passed in Misc. Case No. 36 of 2001. Laxman Singh died during the pendency of the aforesaid P.A. Case No. 22 of 2000, therefore, the respondent Nos. 3 and 4 who were legal heirs and representatives were substituted. 3. The contention of learned Counsel for the petitioner is that no summons or notices were ever served upon the petitioner Kalyan Singh son of Laxman Singh after having been substituted in the aforesaid P.A. case and as such he could not participate in the proceedings and that ultimately release applica­tion was allowed by the Prescribed Authority vide judgment and order dated 8.2.2005. 4. The order dated 8.2.2008 aforesaid was challenged in Appeal No. 6 of 2008 Kedar Singh v. Ashok Kumar and others'before the District Judge, Mathura. Later on transferred to the Court of Special Judge, Mathura and is still pending before him. 5. The petitioner had filed a Civil Suit No. 677 of 2009 Kalyan Singh v. Dayal Das and others' in the Court of Civil Judge (Senior Division), Mathura for relief of declaration to the effect that the whole proceedings in Civil Suit No. 777 of 2000 and Misc. Case No. 368 of 2001 is collusive, concocted, mala fide and fraudulent. The suit was finally decided vide order dated 31.5.2001 and final decree was prepared in the Misc. Case No. 36 of 2001. 6. The petitioner appears to have moved an application dated 3.8.2010 in the Appellate Court in P.A. Appeal No. 6 of 2008, arising out of order and judgment in P.A. Case No. 30 of 2002. Inter-alia that proceedings before the Appellate Court may be stayed till the disposal of the Original Suit No. 677 of 2009 Kalyan Singh v. Dayal Das and others' pending before the Civil Judge (Senior Division), Mathura. Inter-alia that proceedings before the Appellate Court may be stayed till the disposal of the Original Suit No. 677 of 2009 Kalyan Singh v. Dayal Das and others' pending before the Civil Judge (Senior Division), Mathura. The application was objected by the landlord-re­spondent No. 2 in the writ petition. 7. Upon hearing the parties, the Appellate Court vide its judgment and order dated 19.8.2010 rejected the application dated 3.8.2010 Paper No. 246 (Ga) filed by the petitioner as aforesaid. The petitioner has, therefore, prayed for quashing of the impugned order dated 19.8.2010 passed by the Special Judge, Mathura in P.A. Case No. 6 of 2008 Kedar Singh v. Ashok Kumar and others' and has also prayed for a mandamus staying the proceedings of P.A. Appeal No. 6 of 2008 aforesaid till the disposal of Original Suit No. 677 of 2008 Kalyan Singh v. Dayal Das and others' pending in the Court of Civil Judge (Senior Division), Mathura on the ground that the Appellate Court has com­mitted manifest error of law in passing the impugned judgment inasmuch as it has neither considered nor recorded any specific findings to the effect that the Appellate Court can look into the fact that need of the landlord was bona fide or not and also as to whether the said partition in Suit No. 677 of 2009 was merely to overcome the rigours of Rent Control Act. According to learned Counsel for the petitioner as respondent No. 2 has admitted the legal position to the effect that the Appellate Court can look into the validity of the judg­ment and decree and the execution proceedings in Original Suit No. 777 of 2000. The admission should have considered by the Court below. 8. Per contra Counsel for the respondents submitted that the petitioner is a chronic litigant, he has moved about 300 applications in the suit in the Courts below on one or other frivolous grounds repeatedly even after the earlier appli­cations filed by him on similar grounds have been rejected and that he is not al­lowing the case to proceed. 9. According to learned Counsel for the respondents the petitioner in fact is impeding the course of justice by raising frivolous hurdles. 9. According to learned Counsel for the respondents the petitioner in fact is impeding the course of justice by raising frivolous hurdles. It is stated that the Appellate Court has emphasized in the judgment and order dated 5.2.2009 passed in Writ Petition No. 219 of 2009 "Ashok Kumar v. Kalyan Singh" di­recting the Appellate Court for deciding the appeal expeditiously. 10. Learned Counsel for the respondents has contended that the rent of the building of the accommodation in dispute is only Rs. 18.75 and for this reason the petitioner are not allowing the law to take its own course of means of filing frivolous applications as stated above, so much so that the petitioner filed writ petition challenging imposition of cost to Rs. 250/- by the Appellate Court while rejecting the application filed by the petitioner. The High Court upheld the order of payment of cost of Rs. 200/- in that petition. As regards service of summon is concerned, it is an admitted fact that the petitioner was arrayed as a respondent in that said appeal and was transposed as appellant being real brother of tenant and mother who were the appellants in the appeal. He has thereafter moved several applications and therefore, had full knowledge of the case. It is lastly submitted that the application filed by the petitioner were moved only with an intention to delay the proceedings and hearing of the petition. 11. After hearing the arguments of the Counsel for the parties and from pe­rusal of the record, it appears that the petitioner has moved applications which had no relation with the real controversy in the case and were not neces­sary for the purpose of determining the real question in controversy between the parties. Admittedly Suit No. 777 of 2000 for partition was decided between the heirs of the landlord. The petitioner a tenant by no-stretch of imagination to challenge the partition of the property as he was neither a party to the suit nor to the compromise arrived in that suit being a tenant. The answer to the question raised by the learned Counsel for the petitioner would not affect the decision of the aforesaid suit as to whom he should recognized as landlord, is very simple. The landlord in whose share the property case on the basis of the judgment dated 31.5.2001 in the partition suit and the final decree in Misc. The answer to the question raised by the learned Counsel for the petitioner would not affect the decision of the aforesaid suit as to whom he should recognized as landlord, is very simple. The landlord in whose share the property case on the basis of the judgment dated 31.5.2001 in the partition suit and the final decree in Misc. Case No. 36 of 2001 pursuant to thereof is to be recognized as the landlord. It is the landlord Ashok Kumar in whose share the shop under the tenancy has come in Suit No. 677 of 2009 Kalyan Singh v. Dayal Das and others" filed by the peti­tioner-tenant in the Court of Civil Judge (Senior Division), Mathura seeking re­lief for restraining the Court from proceedings with Case No. 777 of 2000 and Misc. Case No. 36 of 2001 was not maintainable as the petitioner had no locus standi to file the suit for he neither had any share in the partitioned property nor could claim any benefit in the property except of payment of rent to Ashok Kumar the landlord in whose share the shop of the tenant came. Since he has challenged the title of the landlord and has filed the frivolous suit in which he had no right, authority or locus standi only with the purpose to delay the proceedings in Appeal No. 6 of 2008 noting the fact that this Court in Writ Petition No. 219 of 2009 had directed the Appellate Court to decide the appeal within a period of three months. The petitioner has been taking undue benefit in the case by impeding the judicial process. The action of the petitioner cannot be taken lightly and deterrent cost is to be imposed upon him for such a litigant. 12. For all reasons stated above, the petition is dismissed with cost of Rs. 50,000/- upon the petitioner to be recovered as arrears of land revenue within a period of one month from today and paid to the respondent No. 4 forthwith thereafter. Petition Dismissed.