Court No. - 5
Case :- MATTERS UNDER ARTICLE 227 No. - 7144 of 2019 Petitioner :- Shamsul Hai Respondent :- Waseem Javed Counsel for Petitioner :- Iqbal Ahmad Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Iqbal Ahmad learned counsel for the tenant/petitioner.
2. This petition under Article 227 of the Constitution of India has been filed praying for the following relief:-
“(I) an order of direction of suitable nature, setting aside the judgment and order dated 27.04.2019 (Annexure No.11), passed by the District Judge, Kanpur Nagar in SCC Revision No.37 of 2019.
(II) an order or direction of suitable nature, setting aside the order dated 6.3.2019 (Annexure No.9) passed by the Judge Small Causes Court, Kanpur Nagar as well as the order dated 14.8.2015 (Annexure No.3) passed by the A.C.J.M., Kanpur Nagar in SCC Suit No.148/2012.
3. Briefly stated facts of the present case are that plaintiff- respondent claiming herself to be owner and landlord of the disputed house, filed SCC Suit No.148 of 2012, for eviction of the tenant- defendant/petitioner, after determining the tenancy. From the copy of the order sheet of some dates filed by the petitioner as Annexure 1 to the petition, it appears that on 29.01.2014, the defendant-tenant was permitted to cross examine the P.W.1 subject to payment of cost of Rs.400/- and also subject to the condition that in the event on the next date fixed, if he does not cross examine P.W. 1 then his right to cross examination shall be foreclosed. Thereafter several dates were fixed but the defendant- tenant/petitioner has not cross examined P.W. 1 and instead moved either some Misc. application or adjournment application. Thus, it appears that even prior to 29.11.2014, number of opportunities were afforded by the court below to the petitioner to cross examine the P.W.1 but he did not cross examine. After 29.01.2014, ten dates were fixed but the defendant-
tenant/petitioner did not cross examine the P.W.1. Ultimately, on 14.08.2015, the defendant-petitioner did not appear and as such his right to cross examine P.W. 1 was foreclosed by the court below. Thereafter, the petitioner moved an application 49 Ga for recall of the order dated 14.08.2015. He moved another application 53 Ga, dated 18.05.2016 for recall of the order dated 29.01.2014. The application 53 Ga was disposed of by the Judge Small Cause Court, Kanpur Nagar, by order dated 20.12.2016 observing that the right to cross examination was foreclosed by order dated 14.08.2015. The application 49 Ga for setting aside the order dated 14.08.2015 was rejected by the Judge Small Cause Court, Kanpur Nagar, by order dated 06.03.2019, observing that several dates were fixed for cross examination of P.W. 1 but the defendant-petitioner has not cross examined the P.W. 1 and has neither filed railway ticket for his alleged journey to Mumbai or any Medical Certificate of his son to show that he was ill and, therefore, the grounds given for non appearance in the application 49 Ga were not accepted being untrustworthy. Aggrieved with the order dated 16.03.2019, the defendant-petitioner filed SCC Revision No.37 of 2019 (Shamsul Hai Vs. Waseem Javed) which has been dismissed at the admission stage by the impugned order dated 27.04.2019, passed by the District Judge, Kanpur Nagar.
4. Aggrieved with these orders, the defendant-tenant/petitioner has filed the present petition under Article 227 of the Constitution of India.
5. Learned counsel for the petitioner submits that the defendant- petitioner has gone to Mumbai on General Ticket which is missing and as such he could not file it before the court below. He submits that the Medical Certificate could not be filed as the defendant-petitioner is illiterate.
6. No other submission has been made before me except those aforenoted.
7. I have carefully considered the submissions of learned counsel for the defendant-tenant/petitioner.
8. The submission of learned counsel for the defendant- tenant/petitioner is wholly misconceived.
9. From perusal of copy of the application 49 Ga filed as Annexure 4 it is evident that he has not stated about missing of the railway ticket. The petitioner has also not stated in his application 49 Ga that he is illiterate and as such he could not get a Medical Certificate of his son. On the contrary his signature on the application as well as in this petition shows that he is not illiterate. To cross examine the P.W. 1, number of opportunities were afforded by the court below to the tenant- petitioner for years together. Thus, I do not find any good reason to interfere with the impugned orders.
10. For all the reasons aforestated, I do not find any merit in this petition. Consequently, the petition is dismissed .
Order Date :- 27.9.2019/vkg