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2011 DIGILAW 1149 (ALL)

Ram Kishore Kushwaha v. Addl. District Magistrate

2011-05-03

RAKESH TIWARI

body2011
JUDGMENT Hon'ble Rakesh Tiwari, J. Heard learned counsel for the parties and perused the record. 2. Brief facts of the case are that the petitioners are tenants in house no. 996/13 Baldeo Dharmshala Building station road, Civil Lines, Jhansi on monthly rent of Rs.25/-. The respondents are the landlords of the accommodation in dispute. 3. It is stated that respondent no.4, landlord filed SCC Suit No. 61 of 2001, Anand Kumar versus Ram Kishore and another in the Court of Judge Small Causes Court,Jhansi for arrears of rent, delivery of possession, damages and ejectment from the accommodation in dispute under the tenancy of the petitioners. 4. The petitioners tenant filed objection denying the averments made in the suit. 5. After hearing both the parties and on perusal of the record the Judge Small Causes Court, Jhansi vide judgment and order dated 30.4.2005 dismissed the suit of the landlords recording the findings in favour of the tenants-petitioners. Aggrieved by this order, the landlord filed SCC Revision No. 99 of 2005, Anand Kumar Sahu versus Ram Kishore Kushwaha and another, which was allowed by the Additional District Judge/ Special Judge (E.C.) Act, Jhansi directing the tenants to vacate and handover peaceful possession of the accommodation in dispute to the landlord within a period of one month from the date of the order. The Court further provided that in case of failure to comply with the aforesaid order, the landlord will be at liberty to take possession of the accommodation in dispute from the tenants through the Court. The Revisional Court while decreeing the suit for arrears of rent amounting to Rs.975/- directed that the landlord is entitled to get damages @ Rs.150/- per month from the date of termination of tenancy till the date of handing over possession of the accommodation in dispute,hence the instant writ petition has been filed by the petitioners challenging the validity and correctness of the judgment and order dated 29.1.2008 passed by the Revisional Court. 6. This Court on 2.7.2008 passed the following interim order. " Until further order petitioners shall not be evicted in pursuance of impugned judgment and order dated 29.1.2008 passed by the Additional District Judge/Special Judge ( SC/ST Act, Jhansi) in SCC Revision No. 99 of 2005 provided that entire decretal amount due till June, 2008 is deposited before the JSCC within two months from today for immediate payment to the landlord-respondent. It is further directed that with effect from July, 2008 onwards petitioners shall deposit rent/damages for use and occupation before the JSCC for immediate payment to the landlord-respondent by the 7th of each succeeding month at the rate of Rs.400/- per month. In case of default stay order shall stand automatically vacated. Non-payment of this amount may also be a ground for dismissal of this writ petition. This direction is being issued in view of Supreme Court authority of Atma Ram Properties Vs. Federal Motors, 2005 (1) SCC-705." 7. From the order-sheet it appears that on 7.1.2010, learned counsel for the petitioners was granted one week's time for filing compliance report with regard to aforesaid interim order and the case was directed to be listed in the next cause list. When the matter was again taken up on 5.2.2010 the case was passed over on the request of learned counsel for the petitioners directing the office to list the case in the next cause list. On 5.4.2010 when the writ petition was taken up, none appeared on behalf of the petitioners to press the writ petition. It was dismissed in default. On 12.5.2010 a recall application was filed for recall of the order dated 5.4.2010 by which the writ petition was dismissed in default. Thereafter, the petition was restored vide order dated 13.5.2010 subject to payment of Rs.1000/- cost to the respondent landlord by the petitioner by the next date of listing. 8. It appears from the record that on 15.9.2010 learned counsel for the petitioners has submitted that the petitioners has paid Rs.1000/- cost to the respondent-landlord in compliance of the order dated 13.5.2010. He has again submitted that the order dated 2.7.2008,which was a conditional order, has not been complied with in letter and spirit by the petitioners. In response, learned counsel for the petitioners submitted that he has complied with the order dated 2.7.2008 and that due to paucity of time. The case could not be heard finally and the matter was directed to be put up on the next day. When the case was taken up on 16.9.2010 a counter affidavit has been filed by Sri K.K. Dubey, Advocate in which it has been stated that the petitioners have deposited less amount upon the first date of hearing than the amount due. When the case was taken up on 16.9.2010 a counter affidavit has been filed by Sri K.K. Dubey, Advocate in which it has been stated that the petitioners have deposited less amount upon the first date of hearing than the amount due. On prayer of learned counsel for the petitioners 3 weeks' time was granted for filing rejoinder affidavit and the matter was directed to be listed thereafter. When the case was taken up on 21.10.2010, Sri K.K. Dubey, learned counsel for the respondents had sent illness slip and the case was passed over directing the case to be listed after two weeks. The office vide its reports dated 8.11.2010 and dated 13.1.2011 has reported that supplementary affidavit has been filed and affidavit of compliance no. 163030-2010 dated 27.5.2010 has also been filed which are on the record. On 9.2.2011 the case was directed to be listed peremptorily in the next cause list. 9. On 17.2.2011 following order was passed by the Court. "Learned counsel for the petitioners states that he has wrongly given heading of "Supplementary affidavit" in stead of "Rejoinder affidavit in compliance of affidavit" and he may be permitted to make correction as such. In the circumstances, he is permitted to make such corrections. The contention of learned counsel for the respondent is that in paragraphs 4, 5 and 6 of the affidavit he has given details of amount deposited by the petitioners which shows that whole of the amount has not been deposited or paid.? Hence he has not complied with the order dated 2.7.2008. In rebuttal, learned counsel for the petitioners has submitted that he has appended all the rent receipts with his rejoinder affidavit, but he needs some time as to whether calculations made by the respondent in paragraphs 4, 5 and 6 is correct or not. As prayed, list in the next cause list." 10. When the case was again taken up on 24.2.2011 the following order was passed. "On the request of learned counsel for the petitioner the case is passed over for the day to enable him to verify the amount which has been deposited, as well as amount which has not been deposited. List immediately after ten days.? No further time shall be granted for this purpose." 11. Thereafter on 10.3.2011 following order was passed. "On the request of learned counsel for the petitioner the case is passed over for the day to enable him to verify the amount which has been deposited, as well as amount which has not been deposited. List immediately after ten days.? No further time shall be granted for this purpose." 11. Thereafter on 10.3.2011 following order was passed. "It appears from the order dated 17.02.2011 that the petitioner has not deposited the whole of the amount. The petitioner has produced two photocopy of receipts/chalan showing deposit of Rs. 1200/- for the period from 01.10.2010 to 31.12.2010 @ 400/- per month and w.e.f. 01.01.2011 to 31.03.2011. He has also produced the original challan for being deposited Rs. 1266/- for the earlier period by the petitioner. List this case for admission after two weeks. It is made clear that matter will be heard finally on that date. The receipts placed by counsel for the petitioner may also be filed along with affidavit." 12. From perusal of the interim order dated 2.7.2008 it appears that the impugned judgment and order dated 29.1.2008 of the Revisional Court was stayed by the High Court subject to deposit of the entire decretal amount due till June, 2008 before the court below within two months from the date of the order for immediate payment to the landlord and it was further directed that with effect from July, 2008 onwards the petitioners tenants were directed to deposit rent/damages for use and occupation before the court below for immediate payment to the landlord by 7th of each succeeding month at the rate of Rs.400/- per month. In case of default stay order shall stand automatically vacated and non-payment of this amount may also be a ground for dismissal of the writ petition in view of the decision rendered in Atma Ram Properties (supra). . 13. It appears from the record that the petitioners have not complied with the interim order dated 2.7.2008 passed by the High Court by which they were directed to deposit the arrears of rent and current rent by 7th of each succeeding month. It was also observed in the order that non-compliance of the interim order aforesaid will also be a ground for dismissal of the writ petition. It was also observed in the order that non-compliance of the interim order aforesaid will also be a ground for dismissal of the writ petition. The amount having not been deposited by the petitioners in compliance of order in letter and spirit, rather time was sought under various pretext as appears from the order sheet the conditional interim order cannot be sustained in favour of the petitioners. 14. For all the reasons stated above , the writ petition is dismissed. No order as to costs.