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2024 DIGILAW 766 (ALL)

Piyush Shukla v. Ram Kumar Gupta

2024-03-12

ASHUTOSH SRIVASTAVA

body2024
JUDGMENT : 1. Heard Shri Prakhar Tandon, learned counsel for the petitioner and Shri Shivakant Singh, learned counsel for the respondent. 2. This petition under Article 227 of the Constitution of India has been filed for setting aside the order dated 19.12.2023 passed by the learned Addl. District Judge, Court No. 1, Kanpur Nagar in SCC Revision No. 240 of 2022 (Ram Kumar Gupta versus Piyush Shukla) whereby and whereunder, the revision has been allowed and the order dated 17.8.2022 passed by the learned Judge, Small Causes Court whereby deferring the consideration of the application under Order 15 Rule 5 CPC moved by the landlord/respondent after receipt of evidence at the time of final judgment has been set aside and direction has been issued to proceed with the suit only after deciding the application under Order 15 Rule 5 CPC. 3. The facts giving rise to the controversy involved between the parties lie in a narrow compass. The plaintiff/respondent has instituted a SCC Suit No. 280 of 2017 for ejectment of the tenant/petitioner and for recovery of arrears of rent and damages for use and occupation. The rate of rent alleged by the landlord/respondent in the plaint is Rs.1500/- per month. The tenant/petitioner has appeared in the suit proceedings and has filed his written statement on 27.10.2018. The landlord/respondent filed an application under Order 15 Rule 5 CPC alleging that the tenant/petitioner has committed default in the payment of extra rent and prayed for striking off the defence of the tenant/petitioner. The said application under Order 15 Rule 5 CPC was objected to by the tenant/petitioner by filing objections. In the objections, it was clearly stated that the suit was instituted on 9.11.2017. When the tenant/petitioner appeared in the proceedings, the suit was proceeding exparte against him. After recall of the order to proceed exparte, the tenant/petitioner on 31.8.2018 submitted the tender of Rs.57,250/- to be passed. The tender was passed on 27.9.2018 and the amount was deposited by the tenant/petitioner on 1.10.2018. It was also stated that the landlord/respondent had demanded rent from 1.2.2016 to 31.12.2018 i.e. 35 months. The rent works out to Rs.52,500/-. Interest @ 9% per annum works out to Rs.4,725/- total works out to Rs.57,225/- and a sum of Rs.57,250/- was got deposited. The plaintiff/respondent calculated the amount of interest on Rs.52,500/- incorrectly. The tenant/petitioner is also regularly depositing the monthly rent of Rs.1500/-. 4. The rent works out to Rs.52,500/-. Interest @ 9% per annum works out to Rs.4,725/- total works out to Rs.57,225/- and a sum of Rs.57,250/- was got deposited. The plaintiff/respondent calculated the amount of interest on Rs.52,500/- incorrectly. The tenant/petitioner is also regularly depositing the monthly rent of Rs.1500/-. 4. The learned Judge, Small Causes Court vide its order dated 17.8.2022 being of the view that there was a dispute regarding the amount tendered, which could be adjudicated only after receipt of evidence of the parties deferred the consideration of the application under Order 15 Rule 5 CPC at the time of final decision of the suit. 5. The order dated 17.8.2022 was assailed in SCC Revision under Section 25 of the Provincial Small Causes Court Act, 1887 by the landlord/respondent. The tenant/petitioner filed his objections to the maintainability of the revision itself on the ground that the order did not decide the application under Order 15 Rule 5 CPC and was interlocutory in nature and as such, the Revision under Section 25 was not maintainable. The Revisional Court ignoring the objection of the tenant/petitioner allowed the revision by the order dated 15.10.2022 and set aside the order dated 17.8.2022 and directed the Trial Court to first decide the application under Order 15 Rule 5 CPC and then, proceed with the SCC Suit. The order dated 15.10.2022 was put to challenge before this Court by the tenant/petitioner in a petition under Article 227 of the Constitution of India No. 325 of 2023. This Court after hearing the counsels of the parties and taking note of the fact that the objections to the maintainability of the revision was not considered by the Revisional Court while allowing the revision, set aside the order dated 15.10.2022 passed in the revision and directed the Revisional Court to pass the order strictly in accordance with law within a period of three months vide order dated 7.8.2023. The Revisional Court by its order dated 19.12.2023 has again passed the order allowing the revision and setting aside the order dated 17.8.2022 and directions have been issued to the learned Judge, Small Causes Court to decide the application under Order 15 Rule 5 CPC first and thereafter proceed with the SCC Suit. 6. The Revisional Court by its order dated 19.12.2023 has again passed the order allowing the revision and setting aside the order dated 17.8.2022 and directions have been issued to the learned Judge, Small Causes Court to decide the application under Order 15 Rule 5 CPC first and thereafter proceed with the SCC Suit. 6. Shri Prakhar Tandon, learned counsel for the tenant/petitioner has vehemently argued that the Revisional Court has completely misconstrued and misinterpreted the order of this Court dated 7.8.2023 passed on the petition under Article 227 of the Constitution of India No. 325 of 2023, which required it to decide the objections of the tenant/petitioner regarding the maintainability of the revision. The impugned revisional order suffers from patent illegality and deserves to be set aside. The Revisional Court has proceeded to pass orders on merit without deciding the objections. It is contended that the revision itself was not maintainable in law as it was preferred against an interlocutory order by which no rights of the parties were decided. The revision was also decided without granting the petitioner any opportunity to file his response to the revision. It is also contended that the objections of the petitioner to the maintainability of the revision is pending as on date and has not been decided. 7. Per contra, Shri Shivakant Singh, learned counsel for the respondent submits that the order of the Revisional Court is just and proper and does not suffer from any illegality or infirmity. This Court had directed the Revisional Court to pass the order strictly in accordance with law without being influenced by the observations made by this Court in its order dated 7.8.2023. The Revisional Court has thus proceeded to decide the revision in accordance with law. 8. I have heard learned counsels for the parties and have perused the record. 9. Having heard the submissions of the learned counsel for the parties and having gone through the order dated 7.8.2023 passed by this Court in the earlier round of litigation, I find that the Revisional Court while passing the impugned order dated 19.12.2023 has misconstrued and misinterpreted the order of this Court dated 7.8.2023 and has completely ignored its mandate. 9. Having heard the submissions of the learned counsel for the parties and having gone through the order dated 7.8.2023 passed by this Court in the earlier round of litigation, I find that the Revisional Court while passing the impugned order dated 19.12.2023 has misconstrued and misinterpreted the order of this Court dated 7.8.2023 and has completely ignored its mandate. This Court had set aside the order dated 15.10.2022 passed in SCC Revision No. 240 of 2022 (Ram Kumar Gupta versus Piyush Shukla), being of the view that admittedly the order had been passed without deciding the preliminary objection as raised regarding the jurisdiction of the Revisional Court to entertain the revision. The tenor of the order of this Court was that the objections regarding the maintainability of the revision was required to be addressed first before proceeding to decide the revision on merits. This having not been done, the order suffers from patent illegality and irregularity. 10. Accordingly, the order dated 19.12.2023 passed by the Addl. District Judge, Court No. 1, Kanpur Nagar in SCC Revision No. 240 of 2022 (Raj Kumar Gupta versus Piyush Shukla) is set aside. The petition stands allowed. The Revisional Court is directed to first decide the objections of the petitioner regarding the maintainability of the revision and then proceed to decide the revision on merits within a period of three months from the date of service of certified copy of the order of this Court. 11. Parties to bear their own costs.