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2011 DIGILAW 2537 (ALL)

Mohammad Gufran v. Rukaiya Bano

2011-11-08

SHASHI KANT GUPTA

body2011
Shashi Kant Gupta, J.;- This writ petition is directed against the order dated 2.7.2009 passed by Civil Judge, (Senior Division), Court No.13, Allahabad in M.P.A. Case No.19 of 2006 and the order dated 7.3.2003 passed by the Prescribed Authority in P.A. Case no.2 of 1997, whereby the application of the respondent-landlady filed under Section 21 (1)(a) of the Act was allowed ex-parte against the petitioner and thereafter the petitioner's application filed under Order 9, Rule 13 Readwtih 151 CPC accompanied by an application for condonation of delay was dismissed. 2. Brief facts of the case are as follows:- 3. The petitioner was the tenant of the disputed premises. An application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 (in short the "Act") was filed by the respondent-landlady for release of the disputed premises in the year 1997. The petitioner appeared in the matter on 2.7.1997 but later on neither appeared before the court nor filed any written statement as a consequence thereof, the prescribed authority by order dated 17.5.1999 directed the release application to proceed ex-parte. The petitioner-tenant filed an application for recall of the said order dated 17.5.1999. The court below by order dated 7.2.2000 allowed the said application with cost of Rs.50/-. Even thereafter the petitioner did not file written statement and absented himself as such on 11.7.2000, the court below again directed the release application to proceed ex-parte against the petitioner. The petitioner again filed an application for recall of the order dated 11.7.2000. However, the said application was dismissed for want of prosecution by the court below on 1.8.2001. Thereafter the matter was transferred to Additional Chief Judicial Magistrate, Allahabad, Court No.8 on 16.8.2002 and again it was transferred on 11.12.2002 to Additional Civil Judge (Sr. Division), Allahabad, Court No.13. Ultimately the release application was allowed ex-parte on 7.3.2003. The petitioner did not file any appeal under Section 22 of the Act before the Appellate Authority against the said ex-parte order dated 7.3.2003 but filed an application after more than 3 years under Order 9 Rule 13 CPC readwith Section 151 C.P.C. accompanied by an application for condonation of delay for recall of the ex-parte order dated 7.3.2003. The said application for recall of the order dated 7.3.2003 was dismissed by the Prescribed Authority by an impugned order dated 2.7.2009. Hence the present writ petition. 4. The said application for recall of the order dated 7.3.2003 was dismissed by the Prescribed Authority by an impugned order dated 2.7.2009. Hence the present writ petition. 4. It is submitted by the learned counsel for the petitioner that since the matter was transferred on 16.8.2002 to the Additional Chief Judicial Magistrate, Allahabad, Court No.8 and again on 11.12.2002 to the Additional Civil Judge (Sr. Division), Court No.13 without intimation to the petitioner as required under Rule 89-A of General Rules (Civil), the ex-parte order dated 7.3.2003 allowing the release application under Section 21 of the Act was illegal and was liable to be set-aside. 5. Per contra, learned counsel for the respondent has submitted that Rule 89-A of General Rules (Civil) is not at all applicable in the matter and the court below was not under any obligation to intimate the petitioner, since the release application filed under Section 21 of the Act was being heard ex-parte prior to the transfer of the case to the Additional Chief Judicial Magistrate, Allahabad, Court no.8 for non-appearance of the petitioner and his counsel in the pending proceeding. Besides this, the recall application for recall of the order dated 11.7.2000 was also earlier dismissed in default on 1.8.2001. Therefore, the court below has not erred in passing the impugned orders. 6. Heard learned counsel for the parties and perused the record of the case. 7. From the perusal of the material available on record, it is evident that the petitioner was not at all serious and interested in pursuing the matter. He put in appearance in the release application through his counsel in 1997 but omitted to file his written statement. On 17.5.1999, when the petitioner did not appear, the court below proceeded ex-parte, however the court below recalled the said order on the recall application on 7.2.2000. The petitioner even thereafter did not bother to file written statement and again did not appear before the court, as a result the court had no other option but to pass an order to proceed ex-parte. The petitioner again filed an application for recalling the order but the said application was dismissed in default on 1.8.2001 and the petitioner did not choose to file any further application for recalling the said order dated 1.8.2001. Ultimately the release application filed u/s 21 of the Act was allowed ex-parte by order dated 7.3.2003. The petitioner again filed an application for recalling the order but the said application was dismissed in default on 1.8.2001 and the petitioner did not choose to file any further application for recalling the said order dated 1.8.2001. Ultimately the release application filed u/s 21 of the Act was allowed ex-parte by order dated 7.3.2003. The record of the case further reveals that the petitioner filed an application in the year 2006 after about three and half years of the passing of the ex-parte decree dated 7.3.2003. 8. The contention of the learned counsel for the petitioner that provisions of Rule 89-A of General Rules (Civil) was not complied with has no substance and is untenable. In the present matter, admittedly on 11.7.2000, the court below had directed the release application to proceed ex-parte against the petitioner and thereafter the application of the petitioner for recall of the said order dated 11.7.2000 too was dismissed in default 1.8.2001. The petitioner thereafter did not pursue the matter as a result, ex-parte judgment dated 7.3.2003 was passed by the court below. Therefore under these circumstances, court was not under any obligation under Rule 89-A of General Rules (Civil) to send any information to the petitioner or his counsel with regard to the transfer of the matter and as such Rule 89-A of the General Rules (Civil) was not all applicable. 9. Bare perusal of the record further reveals that the petitioner was never interested in pursuing the matter although several opportunities were granted to him by the court below. It is also notable that the petitioner had not even bothered to file his written statement in the matter despite having been given ample opportunities. The court while dismissing the recall application has assigned cogent, convincing and satisfactory reasons. No fault can be found with the approach adopted by the court below. 10. Thus in view of the above discussions, I do not find any illegality in the impugned order passed by the court below. In the result, the writ petition is dismissed.