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2010 DIGILAW 3418 (ALL)

Sandeep Kapoor v. Rajiv Kumar Sharma

2010-11-08

RAKESH TIWARI

body2010
JUDGMENT Hon. 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 on 2.9.2005 ordered the suit to proceed ex parte. 3. An application under Order 9 Rule7, C.P.C. was moved by tenant defendant- Subhash Kappor for recall of the order dated 2.9.2005 which was rejected by order dated 22.1.2008. Aggrieved by the order, tenant Subhash Kappor filed a revision which was also dismissed by the revisional 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 9 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 9 Rule 7 C.P.C. and later on under Order 9 Rule 13, C.P.C. were maintainable with full force and the court below erroneously rejected the application under Order 9 Rule 13, on the ground that earlier application under Order 9 Rule 7 was rejected. His last contention is that the procedure prescribed under Order 5 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 ordersheet 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. 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 ordersheet 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: ^^fnukad 18-9-2006 dks esjs iwoZ ihBklhu vf/kdkjh }kjk ;g vkns'k ikfjr fd;k x;k gS fd oknh dh vksj ls izkFkZuk i= 24x ij vkifRr nkf[ky fd;k x;k fd oknh dh vksj ls izkFkZuk i= 24x ij vkifRr nkf[ky dh tk pqdh gSA fdUrq izfroknx.k dh vksj ls cgl ugha dh tk jgh gS vr% U;k;fgr esa izfroknx.k dh vksj ls cgl ugha dh tk jgh gS vr% U;k;fgr esa izfroknh dks ,d volj iznku djrs gq, ;g vkns'k fd;k x;k gS fd ;fn fu;r frfFk dks mifLFkr gksdj izfroknh ds vf/koDrkx.k vius izkFkZuk i= ij cy ugha nsrs gSa rks mudh vuqifLFkfr ekurs gq, izkFkZuk i= fujLr dj fn;k tk;sxk] vkSj mijksDr i=koyh esa fnukad 28-10-2006 fu;r dj nh x;hA i=koyh ds voyksdu ls fofnr gS fd fnukad 28-10-2006 dks pquko vodk'k gks tkus ds dkj.k fnukad 09-11-2006 fu;r dj nh x;hA ijUrq fnukad 09-11-2006 dks izfroknh U;k;ky; mifLFkr ugha vk;s u gh mudh vksj ls dksbZ LFkxu izkFkZuk i= fn;k x;kA vkSjmlh fnukad dks izfroknh dh vuqifLFkfr gksus ds dkj.k izfroknh dk izkFkZuk i= 24x fujLr dj fn;k x;k vkSj i=koyh ,di{kh; lk{; esa 02-12-2006 ds fy, fu;r dj nh x;hA inqijkUr izfroknhx.k dh vksj ls izkFkZuk i= 38x e; 'kiFki= 39x izLrqr fd;k x;k vkSj vkns'k fnukad 09-11-2006 dks fjdky fd;s tkus dh izkFkZuk dh x;hA mijksDr izkFkZuk i= 'kkfey i=koyh fd;k x;k vkSj mlds mijkUr i=koyh flfoy tt ¼lh0Mh0½ dks vUrfjr dj nh x;hA fnukad 02-12-2006 dks i{kdkj U;k;ky; mifLFkr vk;s vkSj oknh dh vksj ls izkFkZuk 38x ds fo#) vkifRr nkf[ky dh x;hA vr% i=koyh esa fnukad 15-12-2006 okLrs lquokbZ 38x fu;r dj nh x;hA mDr fnukad dks izkFkZuk i= 42x fjTokb.Mj 'kiFk i= 43x nkf[ky djus gsrq is'k gqvk vkSj i=koyh lquokbZ fuLrkj.k izkFkZuk i= 38x o 42x gsrq fnukad 22-12-2006 fu;r dj nh x;hA fnukad 22-12-2006 o 25-01-2007 dks izkFkZuk i= dh lquokbZ ugha gks ldh vkSj fnukad 14-03-2007 dks mHk; i{k ds fo}ku vf/koDrk dks lqudj vkns'k gsrq fnukad 19-03-2007 fu;r dj nh x;hA ;g fd fnukad 19-03-2007 dks izkFkZuk i= 38x ij vkns'k ikfjr fd;k x;k vkSj izfroknh dk izkFkZuk i= 38x vadu 125@& :i;s ij Lohdkj fd;k x;k vkSj vkns'k fnukad 09-11-2006 fjdky fd;k x;k vkSj iqu% i=koyh izkFkZuk i= 24x dh lquokbZ fuLrkj.k gsrq fnukad 26-04-2007 fu;r dj nh x;hA ijUrq izfroknhx.k dh vksj ls mDr fnukad dks LFkxu izkFkZuk i= izfroknh vfUre volj ds :i esa Lohdkj fd;k x;k vkSj i=koyh fnukad 11-07-2007 ds fy, fu;r dj nh x;hA fnukad 25-9-2007 dks izfroknh dh vksj ls LFkxu izkFkZuk i= 46?k fn;k x;k tks vfUre volj ds :i esa 100@& gtsZ ij Lohdkj fd;k x;k vkSj i=koyh esa fnukad 26-10-2007 fu;r dj nh x;hA ijUrq mDr fnukad dks izfroknh dh vksj ls 48?k LFkxu fn;k x;k ftl ij oknh ds vf/koDrk }kjk fojks/k fd;k x;k vkSj fnukad 26-10-2007 dks LFkxu izkFkZuk i= 80@& :i;s ij vfUre volj ds :i esa Lohdkj fd;k x;k vkSj i=koyh fd;k x;k vkSj i=koyh esa fnukad 11-01-2008 fu;r dj nh x;h ijUrq mDr fnukad dks Hkh izfroknhx.k dh vksj ls 51?k LFkxu fn;k x;k tks fo'ks"k volj ds :i esa Lohdkj fd;k x;kA** 7. Contention of the counsel for petitioner that in the aforesaid circumstances, the application under Order 9 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. 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. 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: ^^03-04-2008 i=koyh fu.kZ; gsrq is'k gqbZA iqdkjk x;kA oknh mifLFkr gSA ,d i{kh; fu.kZ; esjs }kjk gLrk{kfjr ,oa fnukafdr gksdj [kqys U;k;ky; esa i<+dj lquk;k x;kA fu.kZ; vuqlkj vkns'k gqvk fd nkok oknh fMdzh fd;k tkrk gSA izfroknhx.k dks vkns'k fn;k tkrk gS fd ,d ekg ds vUnj fookfnr r; dCtk oknh dks ns ns rFkk cdk;k fdjk;k Lohd`fr ds vuqlkj 10 o"kZ 2 ekg dk rFkk Hkqxrku ds fnukad rd 9 izfr'kr e; okf"kZd C;kt vnk djsa rFkk gtkZ bLrsekyh fdjk;snkjh lekfIr rd ds i'pkr izfrekg 35@& :i;k dh nj ls Hkqxrku 9 izfr'kr C;kt ls vnk djsaA okn O;; i{kdkj Lo;a ogu djsxsaA fu.kZ;kuqlkj vkifRr nhxj dh tkos rFkk i=koyh nkf[ky vfHkys[kkxkj dh tkosA g0 v0] flfoy tt ¼tw0fM0½ cnk;wWaA** 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. 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 9 Rule 13, are thus : ^^bl izdkj mijksDr rF;ksa ls ;g Li"V gS fd vkosnd @ izfroknh us ftl izdkj ls bl eqdnesa es [ksyuk 'kq: fd;k] og Lo;a U;k; ikus ds fy, ugha cfYd nwljs i{k dks U;k; u nsus ds fy, FkkA bl izdkj vkosnd @ izfroknh ewy i=koyh esa Hkh U;k;ky; ds le{k vkus ls vkuk dkuh djrk jgk gSA vkosnd @ izfroknh us fnukad 9 fu;e 13 lh0ih0lh0 esa Hkh lgh rF; izLrqr ugha fd;s gS mldk ;g dFku gS fd 'kiFkdrkZ ds vf/koDrk }kjk i=koyh dk voyksdu djus ij fnukad 12-01-2006 dks mldks bl eqdnesa dh tkudkjh gqbZ ysfdu mlus bl rF; dks fNik;k gS fd fjohtu U;k;ky; us izkFkZuk i= D;ksa fujLr fd;kA tgka rd bdkjh lEeu dk iz'u gS mlds oS/kkfudrk ij fopkj djus dk iz'u ugha gSA ;fn vkosnd @ izfroknh ewy i=koyh esa mifLFkr vk x;k Fkk vkSj mlus ,d i{kh; vkns'k dks vikLr djus dk izkFkZuk i= Hkh ns fn;k FkkA ;fn og U;k;ky; mifLFkr vkrk jgrk rks mldk izkFkZuk i= fujLr ugha fd;k tkrkA lEeu xyr gS ;k lgh ;g iz'u U;k;ky; ds le{k ugha gSA 7- ewy i=koyh ds voyksdj ls Li"V gS fd ftl izdkj dk vkpj.k vkosnd @ izfroknh us U;k;ky; ds le{k izLrqr fd;k gS mlds vk/kkj ij vkns'k 9 fu;e 13 lh0ih0lh0 ds izkFkZuk i= dks Lohdkj fd;s tkus dk dksbZ vkSfpR; ugha gSA U;k;ky; dk ;g Li"V er gS fd vkosnd @ izfroknh us foyEc dk dksbZ larks"ktud mRrj ugha fn;k gSA vr% vkosnd @ izfroknh }kjk izLrqr izkFkZuk i= 5x fujLr fd;s tkus ;ksX; gSA vkns'k vkosnd @ izfroknh }kjk izLrqr izkFkZuk i= 5x fujLr fd;k tkrk gSA i=koyh nkf[ky nQ~rj gksosA fnukad 10-05-2010 g0v0] 10-5-2010 ¼fetkZ thur½ vij flfoy tt ¼tw0fM0½ 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 part 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 part 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 9 Rule 7 had been rejected, the application under Order 9 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 9 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 5, 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 blow 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.