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Uttarakhand High Court · body

2016 DIGILAW 318 (UTT)

Shashank Malik v. MDDA Ramky ISBT Ltd.

2016-07-07

U.C.DHYANI

body2016
JUDGMENT : 1. By means of present writ petition, the petitioners seek following relief, among other: “Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 08.08.2015 passed by learned Arbitral Tribunal, Dehradun consisting of Shri S. K. Raturi (retired District Judge), Shri L. M. Sinha and Shri Gaurav Sharma, Advocates, whereby application dated 04.04.2015 has rejected by the learned Arbitral Tribunal, Dehradun and further to allow the application dated 04.04.2015 filed by the petitioners.” 2. Respondent herein submitted his claim before the learned Arbitral Tribunal, Dehradun, which was constituted by consent comprising of one retired District Jduge and two Advocates stating therein that an agreement dated 28.06.2012 was entered into between the claimants and respondent, whereby the property in question was given to the petitioners. The said agreement was attributed as business licence agreement. It was further averred that the petitioners are in default of licence fee to the tune of Rs.4970317 amongst other claims including electricity bill common area maintenance charges etc. the petitioners filed their objections alongwith counter claim. It was asserted in the objections as well as the counter claim that the agreement dated 28.06.2012 is a lease agreement and not a licence agreement, therefore, the dispute cannot be referred to the Arbitral Tribunal, Dehradun. The petitioners also filed a counter claim seeking a relief declaration that the petitioners are leasees tenant of the respondent and further claim re-delivery of the possession of the property. The petitioners insisted upon certificate of terms of agreement dated …….to prove the fact that the said agreement is a lease deed and hence cannot be referred to the Arbitral Tribunal, Dehradun. Before the parties entering into the agreement dated 28.06.2012, the letter of intent was executed between the parties wherein the petitioner no.1 was termed as leasee and the agreement was termed as lease agreement. The term of agreement was 9 years and thereafter the possession was delivered to the petitioners in pursuance to the said letter of intend/t. 3. Learned Arbitral Tribunal did not decide the said question. Thereafter, an application dated 04.04.2015 was moved by the petitioners praying that the Tribunal should hold the composition of the Arbitral Tribunal as illegal and further to hold that the dispute is referable to the arbitration. Learned Arbitral Tribunal did not decide the said question. Thereafter, an application dated 04.04.2015 was moved by the petitioners praying that the Tribunal should hold the composition of the Arbitral Tribunal as illegal and further to hold that the dispute is referable to the arbitration. The petitioners also informed the Arbitral Tribunal by sending various letters, that the Tribunal does not have jurisdiction to hear the dispute in question. Learned Arbitral Tribunal by majority view rejected the application dated 04.04.2015 holding that the said application is a licence deed. 4. A bare perusal of the agreement proved that the petitioners have exclusive possession over the property the term of agreement is 9 years with the locking period of 3 years there is a penalty clause and most importantly the said agreement is a lease deed and not licence agreement. Section 16 of the Arbitration Act empowers the Tribunal to rule on his own jurisdiction i.e. to decide the question whether the Tribunal has the jurisdiction or not. 5. The ground taken in the writ petition by passing the order impugned, the learned Tribunal has overlooked the counter claim filed by the petitioners, but has not dismissed the same. 6. Learned Tribunal, after hearing learned counsel for the parties held that the relations between the claimant and the opposite party is not a landlord lesser and tenant leasee and therefore Bees Alian case would not apply to the facts of present case. The inclusive conclusion according to learned Tribunal would therefore be that the present dispute is arbitral and this arbitral Tribunal has the jurisdiction to enter into this arbitration and settle the dispute. 7. Learned counsel for the respondent relied upon a decision of Hon’ble Supreme Court in ………………………. 8. This Court is in complete agreement with the arguments of learned counsel for the respondents that in view of the aforesaid decision, the order impugned is not interferable. 7. Learned counsel for the respondent relied upon a decision of Hon’ble Supreme Court in ………………………. 8. This Court is in complete agreement with the arguments of learned counsel for the respondents that in view of the aforesaid decision, the order impugned is not interferable. At this stage of diction, learned counsel for the petitioners submitted that since the learned Arbitral Tribunal has held that the agreement between the petitioners and the respondent is not a lease agreement, but is only a licence agreement, therefore, the counter claim filed by the petitioners would redundant express/infructuous without adjudication and therefore it be directed that the learned Tribunal shall proceed with the case without being influence of such observations the agreement between the petitioners and the respondent was not a lease agreement but was a licence agreement. The writ petition is dismissed. It is therefore provided that while adjudicating the counter claim of the petitioners, learned Arbitral Tribunal shall be not influenced by its observations that the agreement between the petitioners and the respondent is not a lease agreement, but is a licence agreement. 9. 10. Plaintiff-Ratni Devi filed a civil suit against Smt. Aruna Modi and petitioners in the Court of Civil Judge (J.D.), Haridwar for permanent prohibitory injunction. Copy of the ordersheet of the Court of Addl. Civil Judge (J.D.) 1st, Haridwar has been enclosed by the petitioners as Annexure-3 to the writ petition. It starts with the date 15.04.2009, on which the presiding officer was on leave. 08.05.2009 was fixed by the link officer. On 08.05.2009, learned counsel for the plaintiff appeared, but the defendant did not. 22.05.2009 was fixed. On 22.05.2009, learned counsel for the plaintiff appeared, but none appeared for the defendant. It was, therefore, directed that the suit shall proceed ex-parte against the defendants no.2, 3 & 4. 17.07.2009 was fixed for plaintiff’s ex-parte evidence. On 17.07.2009, the plaintiff did not appear and, therefore, the hearing of the suit was adjourned to 17.08.2009 for plaintiff’s ex-parte evidence. On 17.08.2009, nobody turned up for the plaintiff and, therefore, the hearing of the suit was adjourned to 18.09.2009 (for ex-parte evidence). Vide order dated 03.09.2009, the suit was transferred to the court of 4th Additional Civil Judge (J.D.) for disposal according to law. On the selfsame day, the file was received by the transferee court. On 17.08.2009, nobody turned up for the plaintiff and, therefore, the hearing of the suit was adjourned to 18.09.2009 (for ex-parte evidence). Vide order dated 03.09.2009, the suit was transferred to the court of 4th Additional Civil Judge (J.D.) for disposal according to law. On the selfsame day, the file was received by the transferee court. On 18.09.2009, learned counsel for the plaintiff appeared and he made an endorsement on the margin of the ordersheet to this effect ‘none appeared for the defendants.” 11. On the next date, i.e., 05.10.2009 the plaintiff again moved an application for adjournment, which was allowed. On 05.11.2009, the evidence of the plaintiff was recorded (in the absence of defendant). On 12.11.2009, the lawyers abstained from court work. The ordersheet of 17.11.2009 indicates that the plaintiff’s evidence could not be recorded, as no time was left. On 24.11.2009, the plaintiff made a statement that he has not to adduce any other evidence. Consequently, 14.12.2009 was fixed for arguments. On 14.12.2009, the hearing of the case was adjourned on the request of the plaintiff. On 23.12.2009, the arguments could not take place, as no time was left with the Court. On 06.01.2010, the trial court heard the arguments of the plaintiff and, on 11.01.2010, an ex-parte decree was passed. 12. Aggrieved against the same, the defendants (petitioners herein) moved an application under Order 9 Rule 13 C.P.C. read with Section 151 C.P.C. for setting aside the ex-parte judgment and decree dated 11.01.2010 primarily on the ground that when the file of original suit no.18/2003 was transferred from the court of 1st Addl. Civil Judge (J.D.), Haridwar to the court of 4th Addl. Civil Judge (J.D.), Haridwar, no intimation was given to the defendants. The Addl. Civil Judge (J.D.), Haridwar dismissed the application under Section 5 of the Limitation Act (and as a consequence thereof, application under Order 9 Rule 13 C.P.C. was also dismissed). 13. The order of the trial court was assailed before the District Judge, who, in turn, transferred the case to the 1st Addl. District Judge, Haridwar. The lower appellate court dismissed the appeal. 14. Aggrieved against the same, present writ petition has been filed by the petitioners. 15. Learned trial court in its judgment dated 28.05.2012 admitted that the file of the aforesaid original suit was continued to be transferred from one court to another. District Judge, Haridwar. The lower appellate court dismissed the appeal. 14. Aggrieved against the same, present writ petition has been filed by the petitioners. 15. Learned trial court in its judgment dated 28.05.2012 admitted that the file of the aforesaid original suit was continued to be transferred from one court to another. Learned trial court observed that the counsel for the defendants appeared in different courts and they have made an endorsement to this effect in the ordersheet, which observation is contrary to the facts brought on record. Certified copy of the ordersheet would clearly indicate that none appeared for the petitioners after the transfer of file. Learned trial court was also wrong in its approach to say that it is the duty of the litigant to keep himself abreast with the dates of the case. 16. The observation of the trial court is contrary to Rule 89-A of the General Rules (Civil), 1957, which is reproduced hereinunder for convenience: “89-A. Procedure to be followed on transfer or withdrawal of cases. (1) When a case, i.e. a suit, appeal or other proceedings in which a date for attendance of a party or the parties in a particular court has been fixed, is transferred from one court to another, the former court shall record the order of transfer in the ordersheet and get it signed by counsel of the party or parties, if any party is unrepresented information shall be sent to his registered address. The case shall be called out by the other court on the date already fixed by the transferring court and the presence of the parties noted. (2) A note to the effect that a party or the parties have been informed in accordance with sub-rule (1) shall be made on the record by the transferring court. (3) Where cases are transferred in a large number the court from which they are transferred shall besides following the procedure laid down in sub-rule (1), draw up a list mentioning in it the numbers and years of the cases and the names of the parties and their counsel, and shall cause one copy of it to be posted on the notice-board of the local bar association for information of the members of the bar and another copy to be posted on the notice-board of the court for information of the general public. It shall also send to the other court along with the records of the transferred cases, a copy of the list (or relevant extract of it); the other court shall post it on its own notice board. If the other court is situated in a different place in which there is another bar association, an extra copy of the list shall be sent to it for being posted on the notice-board of the bar association. (4) The court to which cases are transferred shall not proceed without satisfying itself that the parties or their counsel, as the case may be, have been informed of the transfer. (5) In sub-rules (1) to (4) ‘transfer’ includes withdrawal of a case.” [Emphasis supplied] 17. In the instant case, there is no evidence on record to show that the procedure provided under Rule 89-A of the General Rules (Civil), 1957 has been followed. 18. Learned counsel for the respondents submitted that the petitioners continued to remain absent even before the case was transferred from the transferring court to the transferee court. Here this Court is not dealing with the application under Order 9 Rule 7 CPC, but, is dealing with the setting aside of decree, under Order 9 Rule 13 CPC. Once the file of a court is transferred to another court, it is incumbent upon the court below to have followed the procedure as prescribed under Rule 89-A of the General Rules (Civil), 1957. 19. Learned counsel for the respondents also submitted that the petitioners have not said anywhere as to what prevented them from appearing in the court below when the suit was called for hearing. According to learned counsel for the respondents, second part of the Order 9 Rule 13 CPC has neither been pleaded by the petitioners nor any sufficient cause shown. In the opinion of this Court, the sentence ‘or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing’ as provided under Order 9 Rule 13 CPC, does not apply to the petitioners. 20. Otherwise also, it is settled principle of law that, as far as possible, an opportunity of hearing should be granted to every party and any lis pending before any court should not be decided on mere technicalities. 21. 20. Otherwise also, it is settled principle of law that, as far as possible, an opportunity of hearing should be granted to every party and any lis pending before any court should not be decided on mere technicalities. 21. This Court has already adverted to, in the foregoing paras of this judgment, that the trial court has passed the order on wrong premise and so was done by the lower appellate court. Therefore, the impugned judgment and order passed by the lower appellate court is also liable to be set aside. Probably, this situation would not have arisen, had the petitioners continued to appear through their counsel before the transferor court, therefore, a cost of Rs.5000/- should be imposed on the petitioners. 22. In view of above, orders passed by the court below are not sustainable in the eye of law. The same are accordingly set aside on payment of cost of Rs.5000/-, which shall be paid by the petitioners to the respondents within four weeks from today. Writ petition is, accordingly, allowed. 23. The trial court shall proceed further from the stage where the defendants did not appear and participate in the proceedings. 24. Since the original suit in question is pending since 2003, hence, it is directed that the trial court shall make an endeavour to decide the said suit at an earliest possible.