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2010 DIGILAW 3752 (ALL)

Ajay Kumar Garg v. Ashok Kumar Pachauri

2010-12-16

SHASHI KANT GUPTA

body2010
JUDGMENT : Shashi Kant Gupta, J. – The present writ petition has been filed against the judgement and order dated 19.11.2010 passed by the District Judge, Aligarh in SCC Revision No. Nil of 2010, Ajay Kumar vs. Ashok Kumar (Annexure-7) upholding the order of the trial court dated 22.10.2010(Annexure -6) whereby the application of the petitioner raising a preliminary issue that the Judge Small Causes Court has no jurisdiction to entertain the said suit was rejected by the said Court. 2. The brief facts of the case are as follows: The petitioner is a tenant of the premises in dispute . A suit, being SCC suit no. 99 of 1998 for arrears of rent and ejectment was filed by the respondent landlord. After the issues were framed and affidavits were exchanged between the parties, an application was filed by the tenant petitioner raising a preliminary issue that the Court of Judge Small Causes had no jurisdiction to entertain the said suit. It was further alleged in the said application that no notice terminating the tenancy was served upon the petitioner and as such the suit is not maintainable. By order dated 13.8.2010 the court below had dismissed the said application of the petitioner stating that the said issue will be decided at the time of disposal of the suit itself. The petitioner did not challenge the said order. Thereafter, the petitioner again filed a fresh application for the same relief which was rejected by the trial court on 22.10.2010. 3. Being aggrieved and dissatisfied with the said order, a revision was filed by the petitioner before the District Judge, Aligarh, which too was rejected by order dated 19.11.2010. Learned counsel for the petitioner submitted that the impugned orders suffer from a manifest error apparent on the face of record and the same are liable to be set aside by this court. He further submits that no notice terminating the tenancy of the petitioner was ever served upon him and as such the trial court has no jurisdiction to entertain the suit without deciding the preliminary issue regarding maintainability of the suit itself . 4. Heard learned counsel for the parties and perusal the record. 5. He further submits that no notice terminating the tenancy of the petitioner was ever served upon him and as such the trial court has no jurisdiction to entertain the suit without deciding the preliminary issue regarding maintainability of the suit itself . 4. Heard learned counsel for the parties and perusal the record. 5. A bare perusal of the record goes to show that a suit for arrears of rent and ejectment was filed by the respondent landlord in the year 1998 and after the issues were framed and affidavits were exchanged between the parties, at the fag end of the suit proceedings, an application was filed by the tenant petitioner raising a preliminary issue that the Court of Judge Small Causes had no jurisdiction to entertain the said suit. The petitioner did not file any application for deciding the question regarding jurisdiction as a preliminary issue at the very inception of the suit and waited for ten years to file an application for deciding the said question as a preliminary issue and that too on the ground that since no notice terminating his tenancy was served upon him, the court below has no jurisdiction to proceed with the matter. The said application was rejected by the trial court on 13.8.2010 stating that the said question shall be decided at the time of final hearing of the suit. Since the said order was no where challenged, the same reached its finality. However, later on, the petitioner again filed a fresh application in respect of the same grievance which was again dismissed by the trial court and stood confirmed by the revisional court. Since more than two years have elapsed after closing of the evidence and the matter is ripe for final hearing , filing of the application after application in respect of the same relief, is nothing but an abuse of the process of law and, under these circumstances, it would not be appropriate to interfere with the impugned orders rejecting the said applications at this stage. So far as maintainability of the suit is concerned, the said issue ought to be be decided by the court below on the facts and circumstances of the case while deciding the suit itself. 6. So far as maintainability of the suit is concerned, the said issue ought to be be decided by the court below on the facts and circumstances of the case while deciding the suit itself. 6. In view of what has been discussed, herein above, I do not find any illegality, infirmity or perversity in the impugned orders which may warrant any interference by this Court. 7. In the result, the writ petition fails and is dismissed. Petition Dismissed.