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2015 DIGILAW 3921 (ALL)

Ashwani Kumar v. Saroj Devi

2015-12-10

VIVEK KUMAR BIRLA

body2015
JUDGMENT Vivek Kumar Birla, J. – Heard learned counsel for the revisionist and Sri Arun Kumar Singh-I, learned counsel appearing for the opposite party. 2. The tenant-revisionist has come up challenging the order dated 1.9.2015 passed by the court below rejecting his application Paper No. 10-Ga filed for leading oral evidence in the execution case. 3. I do not find any legal infirmity in the order impugned herein. 4. Moreover, learned counsel for the opposite party has passed on a copy of the order dated 24.4.2014 passed in Civil Revision No. 312 of 2009 (Sawan Kumar and others v. Smt. Saroj Devi), which is quoted as under: - "With the consent of the parties, the civil revision is dismissed. No interference is called for. However, the revisionists are allowed one year time to vacate the premises. Learned counsel for the landlord has no objection. The revisionists shall file an undertaking before the Court below that the revisionists shall file undertaking that they will vacate the premises on or before 1st May, 2015 and shall hand over the vacated premises and peaceful possession to the landlord lady he will not create any third party possession in the premises in question. He shall also continue to deposit the rent at the rate of L 1600/- till the vacation of the premises, failing which, the landlord will be at liberty to take appropriate steps for his eviction." 5. Admittedly, the aforesaid order was passed with the consent of parties and revision was dismissed granting one year time to vacate the premises in dispute. Subsequently, Misc. Recall Application No. 183683 of 2015 was filed in the aforesaid revision for recalling the order dated 24.4.2014. The said recall application was also rejected vide order dated 14.9.2015 by a detailed order. The aforesaid order dated 14.9.2015 is quoted as under: - "Rejoinder affidavit filed today on behalf of the revisionists in the recall application is taken on record." 6. This Court on 24th April, 2014 has passed the following order: "With the consent of the parties, the civil revision is dismissed. No interference is called for. However, the revisionists are allowed one year time to vacate the premises. Learned counsel for the landlord has no objection. This Court on 24th April, 2014 has passed the following order: "With the consent of the parties, the civil revision is dismissed. No interference is called for. However, the revisionists are allowed one year time to vacate the premises. Learned counsel for the landlord has no objection. The revisionists shall file an undertaking before the Court below that the revisionists shall file undertaking that they will vacate the premises on or before 1st May, 2015 and shall hand over the vacated premises and peaceful possession to the landlord lady he will not create any third party possession in the premises in question. He shall also continue to deposit the rent at the rate of L 1600/- till the vacation of the premises, failing which, the landlord will be at liberty to take appropriate steps for his eviction." 7. After the said order, this recall application has been filed on behalf of the revisionists on the ground that learned counsel for the revisionists had not given his consent for dismissing the revision. 8. On the last occasion i.e. 28th August, 2015 this Court passed the following order: "Case is called out. No one is present to press this application. Sri Ramesh Kumar Shukla, learned Advocate, who was earlier appearing for the applicants, states that his instructions have been withdrawn by the client. Learned counsel for the respondent has filed a counter affidavit, which is taken on record. In the interest of justice, adverse order is deferred. The applicants are granted two weeks' time to file reply to the counter affidavit. List after two weeks." 9. Learned counsel for the respondent has filed a counter affidavit to the recall application and has denied the fact mentioned in the recall application of the revisionists. Paragraph-5 of the counter affidavit reads as under: "5. That the contents of paragraph No. 3 of the affidavit as they stand are denied and in reply it is submitted that after hearing the present revision, the Hon'ble Court expressed opinion that there is no merit in this revision and same is liable to be dismissed. At that moment learned counsel for the revisionist requested the Hon'ble Court to grant him time to vacate the premises. At that moment learned counsel for the revisionist requested the Hon'ble Court to grant him time to vacate the premises. Therefore, on the statement of counsel for revisionist, Hon'ble Court was pleased to dismiss the revision by order dated 24.04.2014 and granted one year time to vacate the premises subject to condition that revisionist will file undertaking before the court below to vacate the premises on or before 01.05.2015. Counsel of revisionist filed a correction application on 29.04.2014 requesting the Hon'ble Court that word 'dismissed' may be replaced by 'disposed of' on the ground that while dismissing the revision on 24.04.2014, this Hon'ble Court disposed of the same but word 'dismissed' was transcribed in place of 'disposed of'. At the time of hearing of the above correction application on 01.05.2014, the revisionist had withdrawn the same with liberty to file fresh application. After rejection of the correction application on 01.05.2014, revisionist instead of filing undertaking before the court below as directed by this Hon'ble Court by order dated 24.04.2014, filed the present recall application just to cause delay in execution proceeding against them for vacating the premises in question. Revisionist in the garb of pendency of present recall application kept on taking adjournment in execution proceeding before the court below. Copy of correction application dated 29.04.2014 filed by revisionist is being annexed herewith and is being marked as Annexure No. CA-1 to this counter affidavit." A rejoinder affidavit to the aforesaid counter affidavit has been filed on behalf of the revisionists wherein the said fact has been denied and it is stated that the revisionists had earlier engaged Sri A.K. Gupta, Advocate, and thereafter they have also engaged Sri R.K. Shukla, Advocate, as their counsel to file Vakalatnama on their behalf. It is also stated that the revisionists have not given any instruction to their counsel for seeking time to vacate the premises in dispute by getting their revision dismissed. It has further been stated that the counsel for the revisionists has also not given any information regarding the judgment and order dated 24th April, 2014 passed by this Court and they came to know about the same when the execution proceedings started against them in the Court below. 10. I have heard learned counsel for the parties. 11. The order dated 24th April, 2014 was passed after hearing learned counsel for the parties. 10. I have heard learned counsel for the parties. 11. The order dated 24th April, 2014 was passed after hearing learned counsel for the parties. The respondent has correctly narrated the facts in paragraph-5 of the counter affidavit that when after the Court expressed its opinion that there was no merit in the revision then the learned counsel for the revisionists had sought one year time to vacate the premises. Normally, this Court grants only three months' time to vacate the premises but it was on the request of learned counsel for the revisionists that in the peculiar facts of the case, one year time was granted. The revisionists thereafter filed a correction application on 29th April, 2014 itself to delete the word "dismissed" mentioned in the order dated 24th April, 2014. The said application was moved by the same counsel, who had argued the case. At that point of time, no objection was raised by the learned counsel for the revisionists that his consent has wrongly been recorded in the order. The correction application was dismissed as withdrawn on 1st May, 2014. Thereafter, the present recall application has been filed, which was directed to be listed with previous papers on 22nd May, 2014 and since then it is pending. No step has been taken by the revisionists to get the case listed and they remained in possession of the house in question even after lapse of one year i.e. the period which has been granted by this Court to the revisionists to vacate the premises. The statement made in the recall application that learned counsel for the revisionists has not given his consent, is an afterthought and incorrect. 12. Sri V.M. Zaidi, learned Senior Advocate, appearing for the revisionists submits that the earlier counsel has given his consent by mistake. The earlier counsel Sri Ramesh Kumar Shukla is not present in the Court. His no objection has also not been filed, though recall application is filed by him. 13. It is difficult to accept the said submission. After hearing learned counsel for the parties, when the Court was going to dismiss the revision, learned counsel for the revisionists had sought time to vacate the premises in one year, therefore, on his consent the said order was passed. Therefore, I do not find any substance in the submission of Sri Zaidi. After hearing learned counsel for the parties, when the Court was going to dismiss the revision, learned counsel for the revisionists had sought time to vacate the premises in one year, therefore, on his consent the said order was passed. Therefore, I do not find any substance in the submission of Sri Zaidi. Moreover, the Supreme Court in the case of Tamil Nadu Electricity Board and another v. N. Raju Reddiar and another, (1997) 9 SCC 736 , has held that no subsequent counsel should argue the review petition or application for clarification. The Supreme Court held as under: "This is not conducive to healthy practise of the Bar which has the responsibility to maintain the salutary practise of profession. In Review Petition No. 2670 of 1996 in CA No. 1867 of 1992, a Bench of three Judges to which one of us, K. Ramaswamy, J., was a member, had held as under: "The record of the appeal indicates that Shri Sudarsh Menon was the Advocate-on-Record when the appeal was heard and decided on merits. The review petition has been filed by Shri Prabir Chowdhury who was neither an arguing counsel when the appeal was heard nor was he present at the time of arguments. It is unknown on what basis he has written the grounds in the review petition as if it is a rehearing of an appeal against our order. He did not confine to the scope of review. It would not be in the interest of the profession to permit such practise..." 14. In view of the above, the recall application is rejected. 15. No order as to costs." 16. Admittedly, the order dated 14.9.2015 has become final. As such, the filing of aforesaid application Paper No. 10-Ga was absolutely mala fide on the part of the tenant-revisionist. 17. The present revision is devoid of merits and is accordingly dismissed. Revision dismissed.