Court No. - 05
Case :- MATTERS UNDER ARTICLE 227 No. - 5933 of 2019 Petitioner :- Ramesh Chandra Mishra Respondent :- Court Of Small Causes-Ii, Kanpur Nagar And Another Counsel for Petitioner :- Ayush Khanna,Atul Dayal(Senior Adv.) AND Case :- S.C.C. REVISION No. - 28 of 2017 Revisionist :- Sardari Lal Agarwal Opposite Party :- Ramesh Chandrea Mishra And 2 Others Counsel for Revisionist :- Abu Bakht,M.P. Verma,Maha Prasad,P.K. Jain Counsel for Opposite Party :- Atul Dayal Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri P.K. Jain, learned senior advocate assisted by Sri Abu Bakht, learned counsel for the revisionist in the connected revision and Sri Atul Dayal, learned senior advocate for the petitioner in Matter Under Article 227 No. - 5933 of 2019 and counsel for the respondent in the S.C.C. Revision No.28 of 2017.
2. Affidavit of service has been filed today, which is taken on record.
Order on S.C.C. REVISION No. - 28 of 2017
3. This revision under Section 25, Provincial Small Cause Courts Act, 1887, has been filed praying to set aside the judgment and order dated 10.11.2016 rejecting the Application under Order IX Rule 13, C.P.C. in Misc. Case No.41/74/2010 arising out of S.C.C. Suit No.44 of 2004 passed by Sri Krishna Swaroop Dhar Dwivedi, Additional District Judge, Court No.14, Kanpur Nagar.
4. In the impugned judgment and order dated 10.11.2016, a finding of fact has been recorded in paragraph-20 that the tenant-revisionist has not deposited the entire amount while filing application under Order IX Rule 13, C.P.C. A finding of fact has also been recorded that against Rs.96,650/- required to be deposited by the tenant- revisionist, he deposited merely Rs.65,468/-. Learned counsel for the tenant-revisionist does not dispute the aforesaid findings of fact and the factual position that the proviso to Section 17 of the Provincial Small Cause Courts Act, 1887 was not complied with by the tenant-revisionist while presenting the application. He admits that the entire amount due under the decree was not deposited.
5. The proviso to Section 17 of the Provincial Small Cause Courts Act, 1887 is mandatory in nature. It has been admitted before me that the said provision, has not been complied with while filing the application under Order IX Rule 13, C.P.C. Under the circumstances, the impugned judgment and order dated 10.11.2016 rejecting the restoration application 6C2 under Order IX Rule 13, C.P.C., does not suffer from any illegality. Therefore, the revision is dismissed.
Order on Matter Under Article 227 No. - 5933 of 2019
6. The Matter Under Article 227 No. - 5933 of 2019 has been filed by the decree holder/ petitioner for a direction to the executing court (Judge Small Cause Court IInd, Kanpur Nagar) to decide the Execution Case No.01 of 2008 within a time bound period. On 05.08.2019, this court passed the following order:
“1. Heard Sri Atul Dayal, learned Senior Advocate, assisted by Sri Ayush Khanna, learned counsel for the decree-holder-petitioner.
2. Issue notice to the defendant-respondent No.2, returnable at an early date.
3. Steps be taken within three days by ordinary process, registered post A.D. & Dasti summon.
3. 4. Office shall take necessary action.
5. An affidavit of service with regard to dasti summon shall also be filed by the decree holder/petitioner before the next date of listing.
6. Briefly stated facts of the present case are that the plaintiff no.1/petitioner is the father of the plaintiff nos.2 and 3. They are owners and landlords of the disputed House No.112/367-A, Swaroop Nagar, Kanpur Nagar. The defendant no.1/respondent no.2 was tenant in occupation of a portion of the aforesaid house comprising of 5 rooms, two Varandas, kitchen and toilet on the first floor and 2 rooms with toilet on the second floor and a garrage on the ground floor on a monthly rent of Rs.1250/-. According to the plaint allegations, the aforesaid tenant/respondent no.2 not only defaulted in payment of rent but also had sub-let to one Sri Deepak Agarwal who was impleaded as defendant no.2. Briefly on these facts the plaintiff filed SCC Suit No.44 of 2004 for eviction of the aforesaid tenant/respondent no.2. The tenant - respondent no.2 filed a written statement being paper no.27 Ga. He joined the suit proceedings and led his evidences.
7. Subsequently, the defendant -tenant/respondent no.2 absented himself. Ultimately, the aforesaid SCC Suit No.44 of 2004 was decreed by judgment and decree dated 16.01.2008, passed by the Additional District Judge, Court No.14, Kanpur Nagar. Against this judgment the defendant- respondent no.2 filed an application 6C-2 under order IX Rule 13 read with Section 151 C.P.C. for recall of the aforesaid judgment dated 16.01.2008, which was registered as Misc. Case No.41/74/2010 and was rejected by order dated 22.09.2010, passed by the Additional District Judge, Court No.14 Kanpur Nagar. Aggrieved with the aforesaid order, the defendant- respondent no.2 filed a Civil Revision No. 517 of 2010, which was allowed by order dated 10.12.2014, passed by this Court on the question of compliance of Section 17 of the Provincial Small Causes Courts Act, 1887, but without commenting on merits of the case and the matter was remanded.
8. On remand, the aforesaid Misc. Case was again dismissed by judgment and order dated 10.11.2016, passed by the Additional District Judge, Court No.14, Kanpur Nagar. Against that judgment, i.e. rejection of application under Order IX Rule 13 C.P.C., the defendant - respondent no.2 has filed SCC Revision No.28 of 2017 (Sardari Lal Agarwal Vs. Ramesh Chandra Mishra & others) which is pending in this Court and in which no interim order has been granted. Simultaneously, the defendant-respondent no.2 has also filed before the court below a Review Application being Misc. Case No.717/74/2017 for review of the judgment and order dated 10.11.2016, which was rejected by Order dated 14.11.2017.
9. After the aforesaid SCC Suit No.44 of 2004 was decreed by judgment and decree dated 16.01.2008 as aforesaid, the decree holder/plaintiffs/petitioners filed an Execution Case No.01 of 2008 (Ramesh Chandra Mishra Vs. Sardari Lal). On 18.12.2017, the respondent filed an objection under Section 47 C.P.C. in the aforesaid Execution Case No.01 of 2008. This objection is stated to be pending.
10. During pendency of the aforesaid Civil Revision No.517 of 2010 (disposed of on 10.12.2014), an interim order was passed by this Court. No interim order is operating after 10.12.2014 which may be said to be a hurdle in deciding the aforesaid execution case.
11. It further appears that the defendant-tenant/respondent no.2 also filed a transfer application being Misc. Case No.241/74/2018, which was allowed by the District Judge, Kanpur Nagar by order dated 10.07.2018, and Execution Case was transferred to the Court of Additional District Judge/Judge Small Causes Court No.2, Kanpur Nagar.
12. A copy of the order sheet of the aforesaid execution case No.1 of 2008, has been filed as Annexure 8 to the petition. Perusal of it shows that in the said execution case the the Execution Court had adjourned the case on 144 occasions and on 5 occasions the case was adjourned due to fixation of the case on such dates which were holidays. Perusal of the copy of the aforesaid order sheet further shows that on several occasions the parties were present but the Court adjourned the case without request of either of the parties.
13. Now present petition has been filed under Article 227 of the Constitution of India for disposal of the execution case within a time bound period.
14. Prima facie the facts of the case as briefly noted above shows that the defendant/tenant/respondent no.2 has grossly abused the process of the Court and is making every effort to delay the execution of the judgment and decree dated 16.01.2008. The court below also prima facie appears to have acted in such a manner that the execution of decree may remain pending. Perusal of copy of the order sheet filed as Annexure 8 to the petition shows that copy of order sheet after the date 08.05.2018 has not been issued by the court below to the plaintiff-decree holder/petitioner.
15. Learned counsel for the petitioner states that certified copy of the order sheet for the period subsequent to 08.05.2018, has not been issued for reason that the order sheet has not yet been signed by the Presiding Officer. If it is so, then it is a serious matter.
16. Let a report be called for from the concerned court below with respect to the facts noted above and the observations made. Alongwith the report a copy of upto date order sheet of Execution Case No.01 of 2008 shall also be filed.
17. List peremptorily at the top of the list on 21.08.2019, alongwith records of S.C.C. Revision No.28 of 2017 (Sardari Lal Agarwal Vs. Ramesh Chandra Mishra & others).
18. Registrar General shall take necessary action for calling for the report from the court below as aforesaid.”
7. The Bench Secretary has placed a report of the District Judge, Kanpur Nagar dated 19.08.2019 in which it has been mentioned that the court of Additional Judge Small Cause Court, Court No.2, Kanpur Nagar is vacant since 05.08.2019 and, therefore, the Execution Case No.01 of 2008 has been transferred to the court of Judge Small Cause Court, Kanpur Nagar with a direction for expeditious disposal according to law. Since the aforesaid execution case has been transferred to the court of Judge Small Cause Court, Kanpur Nagar, therefore, the parties shall appear before the Judge Small Cause Court, Kanpur Nagar on the date fixed. The execution court is directed to decide the Execution Case No.01 of 2008, in accordance with law, expeditiously, preferably within three months from the date of presentation of a certified copy of this order, without granting any unnecessary adjournment to either of the parties.
8. The petition stands disposed of with the aforesaid direction.
Order Date :- 21.08.2019
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