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2018 DIGILAW 2532 (ALL)

Rajendra Kuamr @ Rajan v. Deep Shikha

2018-12-13

SURYA PRAKASH KESARWANI

body2018
JUDGMENT : 1. Heard Sri A.K. Srivastava, learned counsel for the defendant-tenant/petitioner and Sri Rahul Sahai, learned counsel for the plaintiff-landlord/respondents. 2. Briefly stated facts of the present case are that the plaintiff-landlord/respondents filed Rent Control Case No.03 of 2016 (Smt. Deep Sikha Vs. Rajendra Kumar) on 11.04.2016. Perusal of the copy of order sheet of the court below filed as Annexure 6 to the petition shows that about 76 dates were fixed in the said case. It further shows that various applications were moved by the defendant-tenant/petitioner from time to time. On 31.08.2018 the court below rejected the Application 93-Ga of the defendant-tenant/petitioner for amendment, observing that the defendant-tenant wants to keep the case pending by adopting delaying tactices. On 29.09.2018, the defendant-tenant filed some evidences. He was granted time till 06.10.2018 to file complete evidences. On 06.10.2018 further time was granted to the defendant-tenant. On 11.10.2018 the defendant-tenant again moved an Adjournment Application which was allowed subject to payment of cost of Rs.500/- and the next date was fixed for 17.10.2018 on which date he again moved an Adjournment Application 101-Ga on the ground that he being busy in some essential work could not make preparation for evidence. He had also not deposited the cost of Rs.500/- subject to which his Adjournment Application was allowed on 11.10.2018. By the impugned order dated 17.10.2018, the court below has rejected the Adjournment Application 101-Ga on the ground that firstly the cost imposed on 11.10.2018 has not been deposited and secondly, the defendant wants to delay the disposal of the case. Thereafter, the defendant-tenant/petitioner filed a Recall Application for recall of the order dated 17.10.2018. In his Recall Application he took entirely a new ground for seeking adjournment on 17.10.2018. In paragraph 2 of his Recall Application he stated that on 17.10.2018 his counsel was ill and was busy in his personal work and therefore, evidence could not be prepared. The court below rejected this Application 102-Ga by the impugned order dated 27.11.2018 observing that the rejection of Adjournment Application was on merit and therefore, it cannot be recalled. Aggrieved with these two orders, namely, the order dated 17.10.2018 rejecting the Adjournment Application 101-Ga and the order dated 27.11.2018 rejecting the Recall Application (Paper No.102-Ga), the defendant-tenant/petitioner has filed the present petition under Article 227 of the Constitution of India. 3. Aggrieved with these two orders, namely, the order dated 17.10.2018 rejecting the Adjournment Application 101-Ga and the order dated 27.11.2018 rejecting the Recall Application (Paper No.102-Ga), the defendant-tenant/petitioner has filed the present petition under Article 227 of the Constitution of India. 3. Sri A.K. Srivastava, learned counsel for the defendant-tenant/petitioner submits as under: (i) Both the impugned orders are illegal, inasmuch as, the right to file evidence should not have been taken away, particularly in view of the law laid down by Hon’ble Supreme Court in Bashir Ahmed Vs. Mehmood Hussain Shah, AIR 1995 (SC) 1857 (para 8). (ii) The court below, who passed the order rejecting the Adjournment Application 101-Ga is competent to recall its own order. Therefore, the rejection of Recall Application on the ground that since the order dated 17.10.2018 was on merit and therefore, it cannot be recalled, is wholly arbitrary and illegal. (iii) Non payment of cost cannot be made a ground to reject the second Adjournment Application and such unpaid cost may be recovered only in execution proceedings. 4. Sri Rahul Sahai, learned counsel for the plaintiff-land/respondents submits as under:- (i) Section 35-B of the Civil Procedure Code is the complete reply to the arguments advanced by learned counsel for the petitioner. (ii) In view of the provisions 35-B of the Code, the order dated 17.10.2018 rejecting the Adjournment Application 101-Ga, does not suffer from any illegality. (iii) The grounds taken by the court below to reject the Adjournment Application by order dated 17.10.2018 has not been disputed by the defendant-tenant/petitioner. (iv) The Recall Application was supported by false affidavit, inasmuch as, the reason disclosed in para 2 of the affidavit was entirely different from the reasons mentioned in Adjournment Application 101-Ga (v) The Recall Application has been lawfully rejected. 5. I have carefully considered the submissions of learned counsel for the parties. With the consent of learned counsel for the parties, the following point is formulated for determination: “Whether under the facts and circumstances of the case, the court below has committed a manifest error of law to reject the adjournment Application 101-Ga by order dated 17.10.2018 and the Recall Application 102-Ga by order dated 27.11.2018?” 6. With the consent of learned counsel for the parties, the following point is formulated for determination: “Whether under the facts and circumstances of the case, the court below has committed a manifest error of law to reject the adjournment Application 101-Ga by order dated 17.10.2018 and the Recall Application 102-Ga by order dated 27.11.2018?” 6. Facts of the case as briefly noted above and not disputed before me, leaves no manner of doubt that earlier on 11.10.2018 the defendant-tenant/petitioner moved an adjournment Application seeking further time for filing complete evidence, which was allowed subject to payment of cost of Rs.500/- which has not been deposited by the defendant-tenant. Again on 17.10.2018 he moved an Adjournment Application 101-Ga which was rejected on the grounds, namely, that the cost of Rs.500/- has not been deposited, P.A. Case are required to be decided by the court within 60 days while P.A. Case was filed by the plaintiff in the year 2016 and more than two years have passed and that the defendant-tenant wants to keep the P.A. Case pending. There is no provision under the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ‘the Act 13 of 1972’) which specifically deals with the effect of non deposit of cost. However, Section 34 (1) (b) of the Act 13 of 1972 provides that the prescribed authority or any appellate or revising authority, shall for the purpose of holding any enquiry or hearing any appeal or revision under this Act shall have the same powers as are vested in the civil court under the Code of Civil Procedure, 1908 when trying a suit, in respect of : (a) ....................... . (b) Receiving evidence on affidavits; (c) ......................; (d) ...................... . (e) ...................... . (f) ...................... . (g) ..................... . 7. At this juncture, this Court requested the learned counsel for the petitioner to point out that under which provision the Adjournment Application 101-Ga and the Recall Application 102-Ga were filed by the defendant-tenant before the court below. Learned counsel for the defendant-tenant/petitioner stated that the applications were moved under the provisions of Code of Civil Procedure. 8. Section 35-B of the Code of Civil Procedure deals with cost for causing delay. It also deals with the effect of non deposit of cost. Learned counsel for the defendant-tenant/petitioner stated that the applications were moved under the provisions of Code of Civil Procedure. 8. Section 35-B of the Code of Civil Procedure deals with cost for causing delay. It also deals with the effect of non deposit of cost. The provisions of Section 35-B of Civil Procedure Code reads as under:- “35-B. Costs for causing delay - (1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit - (a) fails to take the step which he was required by or under this Code to take on that date, or (b) obtains an adjournment for taking such step or for producing evidence or on any other ground, the Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of - (a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs, (b) the defence by the defendant, where the defendant was ordered to pay such costs. Explanation - Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the Court to pay such costs. (2) The costs, ordered to be paid under sub-section (1), shall not, if paid, be included in the costs awarded in the decree passed in the suit; but, if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons.” 9. The principle as emerges from the aforequoted provisions of Section 35-B of the Code of Civil Procedure clearly indicates that it aims to achieve the object of expeditious disposal of cases and to discourage the litigant who want to delay the disposal. The principle as emerges from the aforequoted provisions of Section 35-B of the Code of Civil Procedure clearly indicates that it aims to achieve the object of expeditious disposal of cases and to discourage the litigant who want to delay the disposal. There cannot be any quarrel that cases should be decided expeditiously and every effort to delay the conclusion of case should be discouraged by courts of law. The legislative intention of expeditious disposal of rent cases is reflected from the statutory mandate contained in Rule 15 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 which provides that every application for release under Section 21(1) shall, as far as possible, be decided within two months from the date of its presentation. The observation made in the impugned order dated 17.10.2018 reflects that the application filed by the plaintiff-landlord/respondent is pending from more than two years and efforts are being made by the defendant-tenant/petitioner to delay the conclusion of the case. The litigant whose Adjournment Application for taking steps or to produce any evidence or for any other reason, is allowed subject to payment of cost as would be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the court on that day. Payment of such cost on the date next following the date of such order, shall be necessary to prosecute the case further. In the event, cost is not deposited then such a litigant may suffer consequences. As per provisions of Section 35-B deposit of cost shall be a condition precedent for further prosecution of (a) the suit by the plaintiff, where the plaintiff was ordered to pay such cost, and (b) the defence by the defendant, where the defendant was ordered to pay cost. In my view, the principle as enshrined in Section 35-B of the Code of Civil Procedure may be followed by prescribed authority in appropriate cases. 10. The provisions of Section 35-B and Rule 1 of Order XVII of the Code of Civil Procedure were considered by Hon’ble Supreme Court in Manohar Singh Vs. D.S. Sharma and others, 2010 (1) AWC 1047 (SC) (paras 5, 7, 8, 9 and 10) in which it was held, as under:- “5. Section 35B of C.P.C. deals with costs for causing delay. Relevant portion of the said section extracted below: “35B. D.S. Sharma and others, 2010 (1) AWC 1047 (SC) (paras 5, 7, 8, 9 and 10) in which it was held, as under:- “5. Section 35B of C.P.C. deals with costs for causing delay. Relevant portion of the said section extracted below: “35B. Costs for causing delay - (1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit - (a) fails to take the step which he was required by or under this Code to take on that date. or (b) obtains an adjournment for taking such step or for producing evidence or on any other ground. The Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of - (a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs, (b) the defence by the defendant, where the defendant was ordered to pay such costs. Section 35B provides that if costs are levied on the plaintiff for causing delay, payment of such costs on the next hearing date, shall be a condition precedent to the further prosecution of the suit by the plaintiff. Similarly, if costs are levied on the defendant for causing delay, payment of such costs on the next date of hearing, shall be a condition precedent to the further prosecution of the defence of the suit by the defendant. This takes us to the meaning of the words “further prosecution of the suit” and “further prosecution of the defence”. If the Legislature intended that the suit should be dismissed in the event of non-payment of costs by plaintiff, or that the defence should be struck off and suit should be decreed in the event of non-payment of costs by the defendant, the Legislature would have said so. If the Legislature intended that the suit should be dismissed in the event of non-payment of costs by plaintiff, or that the defence should be struck off and suit should be decreed in the event of non-payment of costs by the defendant, the Legislature would have said so. On the other hand, Legislature stated in the rule that payment of costs on the next date shall be a condition precedent to the further prosecution of the suit by plaintiff (where the plaintiff was ordered to pay such costs), and a condition precedent to the further prosecution of the defence by the defendant (where the defendant was ordered to pay such costs). This would mean that if the costs levied were not paid by the party on whom it is levied, such defaulting party is prohibited from any further participation in the suit. In other words, he ceases to have any further right to participate in the suit and he will not be permitted to let in any further evidence or address arguments. The other party will of course be permitted to place his evidence and address arguments, and the Court will then decide the matter in accordance with law. We, therefore, reject the contention of the respondents that Section 35B contemplates or requires dismissal of the suit as an automatic consequence of non-payment of costs by plaintiff. 7. We may also refer to the provisions of Rule 1 of Order XVII of C.P.C. which deals with grant of time and adjournments. The said provision is extracted below: “1. Court may grant time and adjourn hearing-(1) The Court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the suits. (2) Costs of adjournment - In every such case the Court shall fix a day for the further hearing og the suit, and shall make such orders as to costs occasioned by the adjournment of such higher costs as the Court deems fit: Provided that - (a) when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary, (b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party, (c) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment, (d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time. (e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid (Emphasis supplied) It is evident from Rule 1(2) proviso (e) of Order 17 that where a witness is present in court but the other side is not ready to cross-examine the witness, the court can dispense with his cross-examination. But where a genuine and bona fide request is made for adjournment, instead of resorting to forfeiture of the right to cross-examine, the court may grant time by levying costs. 8. A conspectus of the above provisions clearly demonstrates that under the scheme of C.P.C., a suit cannot be dismissed for non-payment of costs. Non-payment of costs results in forfeiture of the right to further prosecute the suit or defence as the case may be. 8. A conspectus of the above provisions clearly demonstrates that under the scheme of C.P.C., a suit cannot be dismissed for non-payment of costs. Non-payment of costs results in forfeiture of the right to further prosecute the suit or defence as the case may be. Award of costs, is an alternative available to the court, instead of dispensing with the cross- examination and closing the evidence of the witness. If the costs levied for seeking an adjournment to cross-examine a witness are not paid, the appropriate course is to close the cross-examination of the witness and prohibit the further prosecution of the suit or the defence, as the case may be by the defaulting party. 9. In this case, the plaintiff has harassed the defendants and its witness by seeking repeated adjournments. In view of it, plaintiff’s right to cross-examine DW2 stands forfeited. However, as costs were levied, but were not paid, the court should have closed the evidence of DW2, permitted the defendants to produce any further evidence (without any right to plaintiff to cross-examine such witnesses) and then ought to have proceeded to dispose of the suit on merits by considering the material available and hearing the arguments of defendant. The court could not have dismissed the suit. 10. In view of the above, we allow these appeals, set aside the judgments of the High Court and the trial court, restore the suit to its file, subject to the following : (i) The right of the plaintiff to cross-examine DW2 stands forfeited and he is barred from prosecuting the suit further. (ii) The trial court shall however permit the defendants to let in any further evidence, hear arguments and then dispose of the suit. (iii) However, if plaintiff-appellant tenders the costs with an appropriate application under section 148 C.P.C., the trial court may consider his request in accordance with law. Even if the court extends the time for deposit, permits the plaintiff to pay the costs and prosecute the suit further, that will not entitle the plaintiff to cross-examine DW2. 11. (iii) However, if plaintiff-appellant tenders the costs with an appropriate application under section 148 C.P.C., the trial court may consider his request in accordance with law. Even if the court extends the time for deposit, permits the plaintiff to pay the costs and prosecute the suit further, that will not entitle the plaintiff to cross-examine DW2. 11. The judgment of Hon’ble Supreme Court in Bashir Ahmed (supra) relied by learned counsel for the defendant-tenant/petitioner was in the matter of suit for ejectment in which the date for cross examination was fixed for 08.08.1994 and the plaintiff was present but the Advocates were on strike and the case was adjourned to 09.08.1994 on which date his counsel was unwell and therefore, the plaintiff sought short adjournment and agreed to pay costs but the Court directed the plaintiff to engage another lawyer for cross examination. Without granting any time to engage another lawyer, the Court ordered for forfeiture of cross examination and proceeded with the matter. On these facts the Hon’ble Supreme Court held in para 8 of the judgment that unless there is time for a new counsel to be engaged and for application of his mind to the pleadings and issues framed the evidences already on record, it would be difficult to proceed with the cross examination on the spur of the moment. Hon’ble Supreme Court referred to the Rule 1 of Order XVII and held that the court committed grave error of law by its order to forfeit the right of the appellant to cross examine the respondent. Thus, the judgment relied by learned counsel for the defendant-tenant/petitioner is wholly distinguishable and has no application of facts of the present case. 12. For all the reasons aforestated, I do not find any manifest error of law in the impugned order dated 17.10.2018 whereby the Adjournment Application of the defendant-tenant/petitioner was rejected and his right of evidence was forfeited for the reasons recorded in the order and briefly noted above. 13. So far as the order dated 27.11.2018 is concerned, I find that the court below rejected the Application 102-Ga on the ground that Adjournment Application 101-Ga was decided on merit and therefore, the order cannot be recalled. 13. So far as the order dated 27.11.2018 is concerned, I find that the court below rejected the Application 102-Ga on the ground that Adjournment Application 101-Ga was decided on merit and therefore, the order cannot be recalled. I also find that in the Recall Application the defendant-tenant took entirely a different stand as evident from paragraph 2 of the affidavit accompanying the Recall Application, which is reproduced below:- ^^2- ;g dh mijksDr okn esa fnukad 17-10-2018 dh frfFk fu;r Fkh mDr frfFk ij eq>s viuk o vius xokgku dk lk{; 'kiFki= nkf[ky djuk Fkk fdUrq mDr frfFk ij esjs vf/koDrk egksn; vLoLFk gksus ,oa vius futh dk;Z esa O;Lr jgus ds dkj.k lk{; rS;kj ugha dj lds Fks ftl gsrq esjs vf/koDrk egksn; }kjk U;k;ky; esa LFkxu ÁkFkZuk i= ÁLrqr fd;k x;kA** 14. The stand taken by the defendant-tenant/petitioner as aforenoted in the Recall Application for recall of the order dated 17.10.2018 itself indicates a misleading approach adopted by the defendant-tenant, inasmuch as, on 17.10.2018, the defendant-tenant moved the Adjournment Application on the ground that he being busy in his personal work, could not prepare for evidence. 15. That apart, since, this Court has upheld the order dated 17.10.2018 as aforesaid, therefore, there is no reason to interfere with the other impugned order dated 27.11.2018. 16. It is also relevant to mention that the scope of Article 227 of the Constitution of India is very limited as held by Hon’ble Supreme Court in the case of Radhey Shyam and another Vs. Chhabi Nath and others, (2015) 5 SCC 423 . 17. For the reasons aforestated, I do not find any merit in this petition. Consequently, the petition is dismissed.