By means of this writ petition, the petitioner-landlord has sought for writ in the nature of certiorari quashing the order dated 20.05.2011, passed by learned Additional Judge, Small Causes-II, Lucknow in Misc. Case No.7 C of 2010.
Heard learned counsel for both the parties and have gone through the records.
The brief facts, relevant for the purposes of deciding this writ petition, are that the landlord moved release application under Section 21(1)(a) of the U.P. Act No.XIII of 1972, which was registered as P.A. Case No.18 of 2005, which was ultimately ex-parte allowed vide judgment and order dated 24.07.2010. The mischievous tenant was represented by Sri D.K. Srivastava, Advocate. The case was transferred from one Court to another. Taking undue advantage of transfer of the case, the tricky tenant did not bother to ensure as to what was happening in his case, disappeared and, when he was sought to be evicted, he moved an application for recall of the ex-parte judgment and order and, also filed an appeal before the learned District Judge. He, again played mischief and thrown a challenge to the entire judicial system by getting him represented through Sri Ram Karan Agrawal, Advocate and sought withdrawal of the Rent appeal no.52 of 2010, which was ultimately allowed and the appeal was dismissed as withdrawn, vide order dated 15.10.2012. By adopting this dirty trick, he has got reserved, the right to knock the door of the learned appellate Court for disposal of his application and for setting aside the judgement and order. This withdrawal application was a camouflage, with the hidden agenda, to linger on and delay the disposal of the case.
Learned prescribed authority has observed in the impugned order dated 20.05.2011 that since the judgment has been passed ex-parte, without hearing the applicant and, as such, setting aside of the order is "necessary", otherwise the applicant will suffer irreparable loss. This observation has been made unnecessarily by the learned prescribed authority, by ignoring the mischief underneath this application. When an ex-parte judgment is passed, it shall not necessarily be set aside. It is as well an order as an order passed after full hearing of the parties. There is no difference between an order passed in detail or passed ex-parte, by Court of law. Both the orders have got the same force. An order of a court of law is binding for all the time to come, unless set aside, rescinded, modified or otherwise recalled. In either case, when Rent appeal No.52 of 2010 was filed by the petitioner (tenant), an application under Order IX, Rule 13 of the Code of Civil Procedure could not have been filed simultaneously as laid down by the Hon'ble Apex Court in Jai Singh Vs. Union of India and others 1977 (1) SCC at page 1, wherein it was held that 'appellant cannot pursue two parallel remedies in respect of the same matter at the same time'. On this score, the impugned order is violative of the directions of the Hon'ble Apex Court and deserves to be quashed.
It is to be mentioned here, as a matter of distress, that the landlord/tenant litigation constitutes a large chunk litigations in the Courts and goes on for unreasonable length of time and the tenants in possession of the premises do not miss any opportunities of filing appeals, revisions and the writ petitions so long as they can. Their sole intention is to perpetuate the litigation. This fact has well been considered by Hon'ble Apex Court in Atmaram Properties Vs. Federal Motors 2005 (1) SCC, 705, which reads as under :-
"The landlord/tenant litigation constitutes a large chunk of litigation pending in the Courts and Tribunals. The litigation goes on for unreasonable length of time and the tenants in possession of the premises do not miss any opportunity of filing appeals or revisions so long as they can, thereby, afford to perpetuate the life of litigation and continue in occupation of the premises".
The dispute in question as being raised by the petitioner is only for the sole purpose of remaining in possession of the disputed accommodation somehow or the other. It is to be impressed that the Courts and judicial forums must act with an iron hand to discourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system. While holding this reliance can well be placed by the law laid down by Hon'ble Apex Court in Ravinder Kaur Vs. Ashok Kumar and another 2003 AIR SCW, 7158. The dubious ways must be tackled by the long arm of law by which the Courts must throttle such litigative caricatures, if the confidence and credibility of the community in the judicature is to survive. This is what has been laid down by Hon'ble Apex Court in T. Arivandandam Vs. T.V. Satyapal and another AIR 1977 SC 2421. In view of the facts and circumstances of the case, this Court has to rely upon the case of Rajappa Hanumantha Ranoji Vs. Mahadev Channabasappa and others 2000 SCFBRC 321.
Robust common sense, common knowledge of human affairs and events gained by judicial experience and judicially noticeable facts, over and above the material available on record - all these provide useful inputs as relevant facts for exercise of discretion while passing an order and formulating the terms to put the parties on. On the basis of the discussions made above, exemplary cost is to be imposed upon the opposite parties no.2 and 3 in which a pragmatic approach deserves to be adopted because it is typical example of how a litigation proceeds on and continues and in the end there is a profit for the wrongdoer. It is a matter of common experience that Court's otherwise scarce and valuable time is consumed or more appropriately, wasted in a large number of uncalled for cases. There should be a pragmatic approach of the actual expenses incurred by a party, in engaging a lawyer keeping in view of the prevailing fee structure of lawyers, expenses incurred towards filing of affidavits, counter affidavits and other miscellaneous expenses, I find the cost of Rs.25,000/- (twenty five thousand) shall be on the lower side, which should be imposed upon opposite parties no.2 and 3.
Rule 89-A of the General Rules (Civil) prescribes for the procedure to be adopted by the court when a case is transferred from one court to another. It is directory in nature. It deserves to be followed by the Courts. But, on the other hand no mileage shall be allowed to be taken by a mischivious litigant to absent and thereafter take undue advantage of the transfer of the case. If a case has been transferred from one court to another, the former court shall get the order signed by the counsel for the party or parties, as the case may be. But, if a party or the counsel representing that party do not appear on that date, or do not sign on the order sheet because of the lapse of the overburdened court, the said party or parties, as the case may be should not be allowed to derive benefits by absenting themselves before the transferee court.
The Rule as mentioned above has been formulated for the convenience of the parties and their counsel. It does no where give room to a defaulting party to take this fact as a sole ground for setting aside proceedings against him, which have been conducted by the transferee court as a matter of course or in a routine manner. While dealing with any such application, the courts should be extra-vigilant in view of the provisions contained in Rule 89-A of the General Rules (Civil) and the provisions contained in Order 3 Rule 4 C.P.C. A party who has already put in appearance and is participating in the proceedings are duty bound to ensure that in case the case is transferred they shall have to appear before the transferee court and mere non-compliance of the provisions contained in Rule 89-A of General Rule (Civil) shall not be a sole ground to delay the proceedings. The defaulting party, in each case, shall have to explain reasons for his/their absence strictly in accordance with law for the time being in force, including the provisions contained in Section 5 of Indian Limitation Act. It does not lie in the mouth of a defaulting party to approach the court after a lapse of time and say that on a particular day this case was fixed and he was not informed of the transfer of the case and therefore he sit silently and came to know only about the outcome of the case only when execution proceedings were to be implemented against him. The courts should not feel shy of allowing such pleas liberally as it is another step towards bringing bad names of the judicial system. It is settled that law does not help dormant and he who comes to equity must come with clean hands. It it is duty of a party to a proceeding to make meaningful efforts to establish that in spite of best efforts made by him, he remained unaware about the fate of the case. The courts must look at the defaulting party with great care and caution, particularly, in view of the fact that the defaulting party may inspect the file, may seek written information about the case by submitting questionaire. Without establishing efforts the defaulting party has no inherent right to get ex-parte or adverse order passed against him set aside, without establishing sincere efforts made by him or them.
In Ramarameshwari Devi and others v. Nirmala Devi and others (2011) 8 SCC 249, the Hon'ble Apex Court has relied upon the law laid down by it earlier in Swaran Singh v. State of Punjab (2000) 5 SCC 668, in which it has been held:
"Perjury has also become a way of life in the law courts. A trial Judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him"
In the above mentioned case, it was also mentioned:-
"Learned amicus articulated common man's general impression about litigation in following words:
Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road."
In the result, the writ petition succeeds and is allowed with costs which is assessed to Rs.25,000/- (twenty five thousand) against opposite party nos.2 and 3, which, if not paid outside the Court, shall be deposited before the learned prescribed authority within thirty days from today, which shall be condition precedent for the tenants to participate in the proceedings before the learned prescribed authority. The impugned order dated 20.05.2011 is set aside. The learned Prescribed Authority/Additional Judge, Small Causes Court-II, Lucknow is directed to dispose of misc. case no. 7 C/2010 within thirty days from the date of production of a certified copy of this order.
Order Date :- 06.12.2012 Rks.