U.P. Automobile Assocation And ... vs R.N. Bharagava
2012 Latest Caselaw 2029 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(Judgment reserved on 7.5.2012)
 
(Judgment delivered on 22.5.2012)
 

 

 
Court No. - 59
 

 
Case :- CIVIL REVISION No. - 185 of 2012
 

 
Petitioner :- U.P. Automobile Assocation And Another
 
Respondent :- R.N. Bharagava
 
Petitioner Counsel :- Dinesh Kumar
 
Respondent Counsel :- B.D. Mishra
 
  
 
AND
 

 
Case :- CIVIL REVISION No. - 213 of 2012
 

 
Petitioner :- U.P. Automobile Association And Another
 
Respondent :- R.N. Bhargava
 
Petitioner Counsel :- Dinesh Kakkar
 
Respondent Counsel :- B.D. Mishra
 

 
Hon'ble Sibghat Ullah Khan,J.

Heard learned counsel for the parties in both the revisions.

Both the revisions have been preferred by the defendant who is either tenant or licensee. The first revision is directed against order dated 29.3.2012 passed by Civil Judge (Senior Division), Allahabad in Original Suit No.283 of 2009 - R.N. Bhargava vs. Auto mobiles Association. Through the said order amendment application of the tenant-applicant seeking amendment in the written statement has been rejected. Through the second revision order dated 18.4.2012 passed by the same Judge in the same suit has been challenged through which application of the plaintiff/opposite party in these revisions for striking off the defence of the defendant/applicant in these revisions under Order 15 Rule 5 C.P.C. has been allowed.

Copy of the plaint is Annexure-1 to the affidavit filed in support of stay application in the first Revision. In the plaint plaintiff/opposite party in these revisions has described himself as landlord. It has been stated in para-2 that on the persuasion of a retired Chief Justice and a former Judge of this court the accommodation in dispute was given on licence for three months to the defendant on 15.7.2002. Copy of the license deed was annexed alongwith the plaint however, to the copy of the plaint filed alongwith the affidavit in the revision that deed is not annexed. Thereafter, it is mentioned that after the expiry of the period the accommodation was not vacated inspite of repeated requests. The suit was filed before Civil Judge (Senior Division), Allahabad. Relief claimed is of mandatory injunction directing the defendant to vacate the premises occupied by it as licensee and to deliver the same to the plaintiff. Damages at the rate of Rs.1,000/- per day have also been demanded. In the plaint it has not been mentioned that what was the license fees (it is possible that in the license deed it may have been mentioned).

The next annexure to the affidavit is written statement of defendant-applicant in which it has been admitted that on the persuasion of a former Chief Justice and a former Judge building in dispute was given by the plaintiff to the defendant. However, it has been denied that it was given on licence and it has been asserted that it was given on rent of Rs.2,500/- per month. The authenticity and the purpose of the document termed as licence deed by the plaintiff has also been questioned. It has been stated in the same para that tenancy started with effect from 10.10.2002.

Earlier also matter was brought to this court in the form of Matters under Artice 227 No. 2491 of 2011 R.N. Bhargava vs. U.P. Automobile Association, Allahabad. The grievance in the said petition was that plaintiff's application for striking off the defence was not being considered. This court decided the said matter on 16.11.2011. Copy of the said order is Annexure-4 to the same affidavit. It was directed that the trial court should proceed with the hearing and disposal of the suit expeditiously; no unnecessary adjournment shall be granted; if any adjournment is granted then it shall be on heavy cost which shall not less than at the rate of Rs.500/- per adjournment. In the first paragraph of the said judgment it was observed that "Evidently, the defendant-respondent is enjoying the property in question either as a licensee or as a tenant but without paying any damages/rent."

In these revisions arguments were heard and judgment was reserved on 7.5.2012. Order passed on the said date is quote below:-

"Heard learned counsel for both the parties on both the revisions.

Sri Dinesh Kakkar, learned counsel for the applicant on the objection of the learned counsel for the other side requested for deletion of applicant no.2 from the array of the parties. Prayer is accepted. Let applicant no.2 be deleted from the array of the parties right now.

Order reserved.

List for delivery of order on 22.5.2012.

Until 22.5.2012 further proceedings of the suit(Original suit no. 283 of 2009 pending before Civil Judge Senior Division Allahabad) shall remain stayed.

Sri Dinesh Kakkar, learned counsel for the applicant on inquiry from court states that admittedly no amount has been paid since the filing of the suit and whether defendant applicant is held to be a tenant or a licencee it is liable to pay the agreed monthly amount of Rs.2,500/-. Learned counsel has further agreed that the amount due @ Rs.2,500/- per month as rent according to him (according to the landlord opposite party as licence fees) till 30.4.2012 would be deposited before the court below within one week and, thereafter until decision of the suit it would be deposited by 15th of every succeeding month. Without least prejudice to his right landlord respondent will be at liberty to withdraw the said amount. Withdrawal of the said amount will not mean that landlord has admitted the applicant to be a tenant.

The receipt of tender through which amount is deposited shall be filed in this case alongwith application by 17.5.2012 after supplying copy of the same to the learned counsel for the respondent. As the judgment has been reserved hence the application may directly be given to the reader of the Court by 17.5.2012."

In pursuance of the said order, on 17.5.2012 an application was directly given to the Reader of the court annexing therewith copy of tender dated 15.5.2012 showing deposit of Rs.1,02,500/- as rent/license fee for the months of January, 2009 to May, 2012 at the rate of Rs.2500/- per month.

As far as second Revision filed against order striking off the defence is concerned, it is to be allowed for the reason that if the landlord himself does not admit the defendant to be tenant, provisions of Order 15 Rule 5 C.P.C. are not applicable. In a situation where plaintiff asserts that defendant is not tenant but only licensee however, tenant asserts that he is tenant, provisions of Order 15 Rule 5 C.P.C. are not applicable.

Accordingly, Civil Revision no.213 of 2012 is allowed. Order dated 18.4.2012 passed by the court below being without jurisdiction is set aside.

However, as far as first Revision (Revision No.185 of 2012 is concerned) it has to be dismissed. There is absolutely no error in the order rejecting tenant's amendment application which was rather frivolous application. It was stated in the application seeking amendment in the written statement that certain facts were not in the knowledge of the defendant. The said facts related to the earlier tenant who handed over the possession to District Magistrate in the year 1996 (this fact appears to be quite strange) and the fact of subsequent filing of allotment applications by seven persons including the defendant who filed allotment application in 2001 and the fact that the earlier landlord had filed a case under Section 21 of U.P. Act No.13 of 1972 against the previous tenant who was also a Judge of this Court (later on elevated to the Supreme Court). All these allegations are wholly irrelevant for deciding the controversy involved in the suit. When defendants admit that they are paying Rs.2,500/- for use and occupation of the accommodation then it is clearly beyond the purview of the U.P. Rent Control Act (U.P. Act no.13 of 1972 by virtue of its section 2(1)(g). Even otherwise when the case of the plaintiff is that property was given to the defendant on licence and the case of the defendant is that it was on lease, the facts sought to be added through amendment application were wholly irrelevant. The allegation that the facts sought to be added through amendment application were not in the knowledge of the defendant is not believable. Defendant was given the property on the persuasion of two retired Judges of this Court one of whom was retired Chief Justice. In this scenario this version that defendant was not aware that a Judge was earlier occupying the said property is not believable. Amendment application was merely a device to delay the proceedings. The court below committed an error of jurisdiction ( exercised jurisdiction not vested in it) in allowing the amendment application.

Accordingly, the first revision (Civil Revision no.185 of 2012) is dismissed.

Both the parties are directed to appear before the court below on the next date fixed. The court below shall decide the suit positively before 30.9.2012. The earlier order passed by this court for expeditious disposal on 16.12.2011 is further modified and it is directed that if any date is adjourned on the application of any sort by any of the parties then it shall be on cost of Rs.1,000/- payable before the next date failing which defaulter party shall not be permitted to participate in the proceedings of the suit.

Before parting it may be mentioned that learned counsel for both the parties cited some authorities. The view which I have taken is not in conflict with any of the said authorities.

The amount deposited by the defendant under order dated 7.5.2012 shall at once be paid to the plaintiff/opposite party without least prejudice to his rights in the suit.

Order Date :- 22.5.2012

RS