Court No. - 30
Case :- WRIT - A No. - 16068 of 2018 Petitioner :- Sudhir Mishra Respondent :- Pravi Bhatnagar And Another Counsel for Petitioner :- Manish Tandon Counsel for Respondent :- Prakhar Tandon
Hon'ble Vivek Kumar Birla,J.
Heard Sri Manish Tandon, learned counsel for the petitioner and Sri Prakhar Tandaon, learned counsel for the caveator- respondents and perused the record.
Present petition has been filed challenging the impugned orders dated 26.5.2018 and 20.12.2017 passed by the Additional Judge Small Causes Court No. 1, Kanpur in Rent Case No. 07 of 2011 (Shri Vijay Shankar vs. Shri Sudhir Mishra).
By the order dated 22.12.2016, the application filed by the landlord-plaintiff (respondents herein) was allowed on the ground that counter affidavit of the tenant-defendant (petitioner herein) was accepted on payment of cost of Rs. 1,000/- vide order dated 17.11.2014 and since the cost has not been paid/deposited, therefore, counter affidavit being paper no. 77 is liable to be returned to the tenant- defendant. The recall application was filed for recalling the aforesaid order, however, the same was rejected vide order dated 26.5.2018.
Submission of the learned counsel for the petitioner is that the petitioner tried to pay the cost, however, the same was refused by the other side and therefore, the same could not be given.
Per contra, Sri Prakhar Tandon, learned counsel for the respondents submits that this assertion is incorrect and has drawn attention to annexure 7 to the petition that has further pointed out that even on earlier occasion also cost was not paid/deposited by the petitioner.
I have considered the rival submissions and perused the record.
There is no dispute about the fact that the cost of Rs. 1,000/- was not paid/deposited by the tenant-defendant (petitioner herein) within the time given by the trial Court, however, this Court is of the opinion that fair opportunity of hearing should be granted to the petitioner, may be on payment of heavy cost.
Under such circumstances, the present petition stands allowed. The impugned orders dated 26.5.2018 and 20.12.2017 passed by the Additional Judge Small Causes Court No. 1, Kanpur in Rent Case No. 07 of 2011 are quashed. The Court below is directed to accept the counter affidavit being paper no. 77 (or 78 or whatever be the paper number) subject to cost of Rs. 10,000/- within 15 days from today, which shall be paid to the landlord- plaintiff before the Court below. In case cost of Rs. 10,000 is refused to be accepted by the landlord-plaintiff, the same shall be deposited by the tenant-defendant before the Court below and the landlord-plaintiff shall be entitled to withdraw the same without prejudice to their rights.
I also find that vide order dated 12.7.2017 this Court had directed the Court below to decide the suit expeditiously as the same is pending since 2011.
Under such circumstances, Court below is directed to expedite the hearing of the case and decide the same expeditiously as already directed by this Court as much time has elapsed from the date of order of this Court.
Present petition stands allowed with the aforesaid observations/directions. No order as to costs.
Order Date :- 26.7.2018 Abhishek