JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. The aforesaid writ petition arises out of an order dated 28.3.2003, passed by the Prescribed Authority/Civil Judge (Senior Division), Piltbhit in Execution Case No. 2 of 2000 and Execution Case No. 1 of 2000 in Rent Control Case No. 16 of 1990 in which an order of eviction against the petitioner was passed fixing 5.4.2003 for orders in respect of damages at the rate of Rs. 100 per day for violation of Clause 2 of the agreement.
3. The facts of the case as culled out from the records are that respondent No. 2 filed Rent Case No. 16 of 1990 for release of the disputed accommodation. The petitioner moved an application-dated 12.9.1991 for providing better particulars and details. Subsequently during the pendency of application under Section 27(1)(A) of U.P. Act No. 13 of 1972 an agreement was arrived at between the parties on 12.11.1992. Relevant conditions for the purpose of decision of (his case are:
(i) Condition No. 1.-That tenant/ petitioner shall vacate the premises in dispute and hand over the possession to the landlord on 1.1.2000.
(ii) Condition No. 2.-If tenant/ defendant has failed to vacate the premises in dispute then he can extend maximum period upto one year by the order of Court.
(iii) Condition No. 4.-If defendant is violating condition Nos. 1 and 2 of the written agreement then defendant petitioner/ tenant shall be liable to pay compensation Rs. 100 per day to landlord.
The aforesaid agreement was verified before the Court below on 19.1 1.1992.
4. The Prescribed Authority/ Civil Judge (Senior Division), Pilibhit, decided the rent case in terms of the compromise by order dated 7.1.1993 which was not challenged in any further Court proceedings and became final. Objections were raised by the petitioner against the aforesaid application on the ground that respondent No. 2 has not paid any rent, therefore, his application is liable to be rejected. Thereafter the Prescribed Authority by order dated 2.12.2002, rejected the application as infructuous. Accordingly the petitioner was granted time to vacate the accommodation in his possession up to 1.1.2000, as such the petitioner himself moved an application which was registered Misc. Application No. 173 of 1999 in Rent Control Case No. 16 of 1990 praying for extension of time as per Condition No. 2 as quoted above.
5. The landlord-respondent No. 2 filed the aforesaid Execution Case No. 2 of 2000, Rakesh Kumar v. Bhagwant Singh against the petitioner before the Court below. Thereafter the Prescribed Authority/ Civil Judge (Senior Division) by order dated 28.3.2003, directed for execution of decree dated 7.1.1993 and eviction of tenant petitioner fixing 5.3.2004, for further orders.
6. The landlord obtained possession of the accommodation in pursuance of order dated 28.3.2003, however, arrears of rent and damages/ compensation for violation of condition Nos. 1, 2 and 4 of the agreement dated 12.11.1992 could not be recovered by him for which 5.4.2003 had been fixed by the Court below.
7. The counsel for the petitioner submits that the agreement was not voluntary and it was under influence and coercion hence, the order for payment of damages is illegal and against the provisions of law and in any case an accommodation in favour of a landlord can be released if his need was only found to be bona fide and genuine.
8. The counsel for the respondent submits that the petitioner has not come with clean hands before this Court and has concealed the material facts in the writ petition, hence it deserves to be dismissed with heavy costs.
9. It is vehemently urged that fact of filing Application No. 173 of 1999 in the aforesaid proceedings before the Court below himself praying for granting again time for vacating the disputed accommodation has been concealed by the petitioner in the writ petition and that the writ petition has been filed against an Interlocutory order it is liable to be dismissed for this reason too. It is lastly urged that the agreement dated 12.11.1992 is legal and valid which has been verified by the Court and duly accepted by the parties and is binding upon them being in consonance of Section 34(1)(H) of the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972.
10. Reliance in this regard has been placed by the counsel for the respondent No. 2 upon (1) State Agro Industrial Corporation Ltd. v. Ravindra Mehrotra and Ors. ARC 2003 (1) 405 SC ; (2) Smt. Vimla Kumari Gwal v. Dr. Satish Kumar Yadav 1997 (2) ARC 116 : 1997 (2) AWC 2.250 (NOC) and (3) Ram Ji Lal v. IXth Additional District Judge, Kanpur Nagar 2001 (44) ALR 106.
11. It appears from the record that in pursuance of the order dated 28.3.2003, the respondent-landlord has obtained possession of the disputed building on 30.3.2003. Copy of the order of dakhalnama has been filed by the respondent and is appended as Annexure-CA-4 to the counter-affidavit.
12. It also appears from the record no appeal was filed by the respondent against the petitioner for realization of the damages as per condition No. 4 of the compromise and that this petition has been preferred against interlocutory order dated 28.3.2003, passed by the Prescribed Authority by which only a date has been fixed which is under challenge in this writ petition. The compromise was binding upon the parties. If it was not voluntary then objection ought to have been taken before the Court when it was verified and not later as an after thought to wriggle out of the terms of the compromise. The order of payment of damages cannot be said to be illegal in the facts and circumstances of the case.
13. After hearing counsel for the parties I am not inclined to interfere against an interlocutory order dated 28.3.2003, as well as against the order passed in Execution Case No. 2 of 2000 as the order of the Prescribed Authority is appealable under Section 22 of U.P. Act No. 13 of 1972.
14. The tenant has already handed over"" possession of the disputed accommodation to the landlord.
15. For all these reasons the writ petition is liable to be dismissed and it is accordingly dismissed. However, the Court below is directed to proceed and decide the matter within two months from today. Since this petition has been filed by concealment of fact against an interlocutory order fixing a date for further orders, costs must be awarded to compensate the advantage taken by the petitioner in view of decision rendered by the Apex Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India , wherein it has been held that:
So far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on number of other issues or points which were unnecessarily raised. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rule in force. If any of the parties has unreasonably protracted the proceedings, the Judge should consider exercising discretion to improse exemplary costs after taking into account the expense incurred for the purpose of attendance on the adjourned dates.
16. Thus, from the law laid down by the Hon'ble Apex Court in the aforesaid case of Salem Advocate Bar Association (supra) it is apparent that non-payment of cost is an exception for which special reasons have to be given by the Court and that in normal circumstances cost has to be awarded on the party according to the issue decided in favour of the party which were unnecessarily raised. The cost so imposed should be in accordance with rules and if the proceedings are unnecessarily protracted or adjournments have been sought it is upon the discretion of the Judge to impose exemplary cost taking also into account the circumstances etc. for the purpose of adjournment.
17. The aforesaid case has been followed in Civil Misc. Writ Petition No. 48752 of 2006, Nizamuddin v. Shakoor Ahmad in which judgment has been rendered on 5.9.2006 after considering the relevant High Court Rules, 1952, as well as Sections 34, 35, 35A and 35B of the Code of Civil Procedure. In the judgment it has been held that from the aforesaid rule it is evident that the Court can make such order as to costs as it may consider just. It is discretionary power of the Court to impose cost, hence it cannot be said to be illegal or perverse. The Court should award cost for judicious approach taking into consideration the whole set of facts and circumstances and not award cost arbitrarily or capriciously.
18. In my opinion while awarding interest on a party by non-payment of principal amount or any dues should also be considered by the Court and not only interest but penal interest may also be awarded.
19. Considering all the facts and circumstances of this case the Court is of considered opinion that petitioner has abused the process of Court and got further proceedings of the Court below in Execution Case No. 16 of 1996 for realization of rent due against the petitioner stayed till further orders since 2003. Cost is assessed at Rs. 20,000. It shall be deposited by the petitioner before the authority concerned and paid to the landlord within two months from today. In case of failure of the petitioner to deposit the cost before the Executing Court, the same shall be recovered as arrears of land revenue from the petitioner within a month thereafter and paid forthwith to respondent No. 2.