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2010 DIGILAW 3716 (ALL)

Suresh Chand Sharma v. Nand Kumar Kamal

2010-12-14

SHASHI KANT GUPTA

body2010
JUDGMENT : Hon'ble Shashi Kant Gupta, J. - By means of the present writ petition, the petitioner is challenging the order dated 8.11.2010 passed by the District Judge, Muzaffar Nagar in SCC Revision arising out of the order dated 5.10.2010 passed by the Civil Judge (S.D.)/JSCC in SCC Suit No. 11 of 2000 whereby the application No. 33C of the petitioner to decide the issues No. 6, 7 as 8 as preliminary issues, has been rejected. 2. The respondent-plaintiff filed SCC Suit against the petitioner for eviction and the recovery of alleged arrears of rent, house tax, water tax etc. on 29.5.2000. Despite the time granted to the petitioner to file written statement, it was not filed. However, an application raising the question regarding jurisdiction coupled with deficiency of court fees and under estimation of suit was filed, and it was prayed that the suit be dismissed for the reasons aforesaid. The trial court rejected the application of the petitioner and directed the case to be proceeded under Order 8 Rule 10 CPC on the ground that the petitioner has neither filed any written statement nor has filed any application to seek further time to file written statement. 3. The petitioner being aggrieved with the order dated 2.1.2002 preferred a SCC Revision before the District Judge, Muzaffar Nagar and at the stage of admission, the matter was disposed of finally by order dated 17.1.2002 on the basis of the consent of the parties whereby the petitioner was again given an opportunity to file his written statement upto 16.2.2002 or prior to that failing which the order dated 2.1.2002 would be deemed as effective and operating. 4. The petitioner was also given the liberty to take all the plea in his written statement which was sought to be raised by him through his application No. 33/C Viz. question regarding jurisdiction, deficiency of court fees and under estimation of the suit and it was also agreed by the parties before the revisional court that the aforementioned issues shall be decided by the trial court at the time of final hearing. 5. Several issues were framed on 5.9.6. Issues No. 6, 7 and 8 were framed regarding the jurisdiction, deficiency of court fees, and under valuation of the suit and rejection of the plaint under order 7 Rule 11 CPC. 5. Several issues were framed on 5.9.6. Issues No. 6, 7 and 8 were framed regarding the jurisdiction, deficiency of court fees, and under valuation of the suit and rejection of the plaint under order 7 Rule 11 CPC. The petitioner again filed an application on 5.10.10 requesting to decide the issues No. 6, 7 and 8 as preliminary issues. The said application was rejected by the trial court. The petitioner aggrieved with the said order dated 5.10.2010, preferred a SCC Revision before the District Judge, which too was dismissed by it by an order dated 8.11.2010. Hence, the present revision. 6. Learned counsel for the petitioner has submitted that the impugned orders are arbitrary, illegal and without jurisdiction. It was further submitted that the application No. 33/C and 222C were filed genuinely and cannot be termed as delaying tactics. The finding recorded by the court below are arbitrary, vague and obscure and is not based on record. It has further been submitted that the plea regarding jurisdiction, deficiency of court fees and valuation of suit is a bonafide and legal plea and ought to be decided first as has been propounded by this Court as well as by the Apex Court in a catena of decisions. 7. Per contra, learned counsel for the landlord has submitted that the suit was filed around 10 years back in the year 2000 and since then the petitioner is adopting dilatory tactics to delay the disposal of the suit. Learned counsel for the landlord has submitted that the application No. 222C was filed by the petitioner to protract the proceedings of the case which is contrary to the spirit of the order dated 17.1.2002 passed by the revisional court. Learned counsel for the landlord further submitted that the petitioner is avoiding to cross-examine the plaintiff and the matter is almost ripe for final hearing. 8. Heard the learned counsel for the petitioner and perused the record. 9. Learned counsel for the landlord further submitted that the petitioner is avoiding to cross-examine the plaintiff and the matter is almost ripe for final hearing. 8. Heard the learned counsel for the petitioner and perused the record. 9. The petitioner filed an application No. 33C in the year 2002 before the trial Court which was dismissed by it and directed the case to be proceeded under Order 8 Rule 10 CPC, against the said order, revision was filed by the petitioner and the revisional court, interalia, passed the following order : **fnukad 17&01&2002 vkt ;g ,l0 lh0 lh0 vkj0 izLrqr gq;hA fjiksZV eqUlfje dk voyksdu fd;k x;kA is'k gksdj vkns'k gqvk fd&&& ;g y?kqokn iqujh{k.k flfoy tt lhuh;j fMfotu dSjkuk }kjk y?kqokn la[;k& 11@2000 uUn dqekj cuke lqjs'k pUn 'kekZ esa ikfjr vkns'k fnukad 02&01&2002 ftlds }kjk y?kqokn U;k;k/kh'k us izfroknh fjfotudrkZ dk izkFkZuki= 33@x vUrZxr vkns'k 7 fu;e 11 nh0 i0 la0 [kf.Mr djrs gq, okn dks vkns'k 8 fu;e 10 nh0iz0la0 ds vUrZxr vxzlkfjr djus dk vkns'k ikfjr dj fn;k A lquk x;kA ,Mfe'ku Jo.k ds nkSjku fjfotudrkZ ds ;ksX; vf/koDrk ckcw Jhiky tSu ,MoksdsV o jsLiksUMsUV ds ;ksX; vf/koDrk Jh vo/k fcgkjh yky xqIrk ,MoksdsV nksuksa gh bl ckr ij lger gS fd vkyksP; vkns'k fnukad 02&01&2002 bl vk/kkj ij [kf.Mr dj fn;k tk, fd fjohtudrkZ dks vkt ls ,d ekg dh vof/k esa izfrokni= izLrqr djus dk vf/kdkj gksxk vkSj tks rF; izkFkZuki= 33@x esa mBk;sa x;sa gS mu rF;ksa dks fjfotudrkZ izfrokni= esa mBkus dks Lora= gksxk ftudk fuLrkj.k vfUre fu.kZ; ds le; fd;k tk,xkA rnuqlkj ;g iqujh{k.k vfUre :i ls fu.khZr djrs gq;s iz'uxr vkns'k fnukad 02&01&2002 rnuqlkj [kf.Mr fd;k tkrk gS vkSj fjohtudrkZ dks funsZ'k fn;k tkrk gS fd og 16 Qjojh 2002 rd ;k mlls iwoZ viuk izfrokni= vkns'k 7 fu;e 11 lh0 ih0 lh0 ds rdksZ lfgr ;fn ok pkgs rks izLrqr djsA ;fn 16&02&2002 rd fjfotudrkZ izfroknh viuk izfrokn izLrqr djus esa vlQy jgk rks vkyksP; vkns'k fnukad 02&01&2002 Lor% izHkkoh le>k tk,xkA rnuqlkj fjohtu nkf[kyk Lrj ij gh fu.khZr fd;k tkrk gSA okn dh ifjfLFkfr;ksa esa i{kdkj okn O;; Lo;a ogu djsaxsA** The above order clearly goes to show that the petitioner was a consenting party to the order dated 17.1.2002 wherein he had agreed to take the plea with regard to the question of jurisdiction, insufficiency of court fees and under valuation of the suit, rejection of the plaint under Order 7 Rule 11 CPC in the written statement and it was agreed upon by the parties that the aforementioned issues raised by the petitioner would be decided by the trial court at the final hearing. Thus the petitioner being a consenting party to the said order dated 17. 1. 2002, cannot be permitted to raise the same plea again after a lapse of eight years. 10. Suffice it to note that the suit for arrears of rent and ejectment was filed in the year 2000 and the case is lingering on since so many years and has not yet been decided. It appears that the petitioner at every stage is trying to delay the matter, when the written statement was not filed within the time permitted by the court, the court below proceeded under Order 8 Rule 10 of the CPC. The revisional Court took a lenient view of the matter and permitted the petitioner to file his written statement within a month and the petitioner also agreed and gave his consent to the court that he will raise the pleas as stated in his application No. 33C in his written statement and the same would be decided at the final hearing. Even though the issues were framed in the year 2006 and the landlord has adduced his evidence but till date the petitioner has not cross-examined the plaintiff. The petitioner has not been able to show as to how he will be prejudiced if the issues as raised by him are not decided as preliminary issues particularly when the case is on the verge of conclusion. 11. In view of the above circumstances, I do not see any illegality or infirmity in the order passed by the Court below. 12. In the result, this petition is dismissed. However, the trial court is directed to decide the matter as expeditiously as possible without granting any unnecessary adjournment to either of the parties.