Smt. Godawari And Others vs State Of U.P. And Others
2012 Latest Caselaw 5705 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 03.09.2012
 
Delivered on 23.11.2012
 
Court No. - 7
 
Case :- WRIT - A No. - 48 of 1990
 

 
Petitioner :- Smt. Godawari and Others
 
Respondent :- State Of U.P. and Others
 
Petitioner Counsel :-  A.K. Mehrotra, Anil Mehrotra
 
Respondent Counsel :- S.C., B.D. Shukla, S.C. Tripathi, Suresh Chandra Tripathi
 

 
Hon'ble Sudhir Agarwal,J.

1. The petitioners are aggrieved by three orders. The first is dated 03.01.1985 (Annexure-1 to the writ petition) passed by Small Cause Court, Kanpur in SCC Suit No. 2489 of 1972 rejecting defendants' (petitioners') Application No. 144/C seeking adjournment on the ground of illness of one of defendants and proceeding ex parte. The second is ex parte judgment of Trial Court, dated 03.01.1985 (Annexure-2 to the writ petition), decreeing the aforesaid suit for eviction of defendants-tenants from accommodation in dispute and also decreeing recovery of arrears of rent/damages etc. The third judgment and order is dated 14.12.1989 (Annexure-6 to the writ petition) passed by VIth Additional District Judge, Kanpur Nagar, dismissing tenant petitioners' SCC Revision No. 20 of 1985.

2. The dispute relates to a portion of House No. 105/731, Gandhi Chowk, Gandhi Nagar, Kanpur (hereinafter referred to as the "disputed accommodation") which is a residential accommodation. A portion of second floor of the said house was/is in the tenancy of petitioners. The respondent no. 4, Sri Gopi Nath (now deceased and substituted by his legal heirs) and respondent no. 5, Pyare Lal Gupta (also now deceased and substituted by his legal heirs) were landlords and owners of building in dispute while Smt. Godawari Devi (now deceased and substituted by her legal heirs) and Smt. Geeta Devi, were initially tenants in a portion of second floor of disputed accommodation.

3. The landlords filed SCC Suit No. 2489 of 1972 in the court of Small Cause, Kanpur for ejectment of tenants from accommodation in question and also for recovery of arrears of rent and damages. The plaint case set up by landlords is that rent is due since January, 1969 and despite service of notice dated 17.08.1972, neither rent has been paid nor the premises has been vacated and tenancy having been determined, the tenants are liable for eviction.

4. It was contested by tenants-petitioners alleging that plaintiff no. 2, Sri Pyare Lal Gupta was realizing rent since a long period but did not issue any receipt whereafter rent of March 1977 tendered by money order was returned with endorsement of "refusal" and there is no cause of action for filing the aforesaid suit.

5. In 1985, suit completed its journey of about 12 years. 03.01.1985 was the date fixed, before Trial Court, for hearing. An application was moved on behalf of defendants seeking adjournment on the ground that one of the defendants, i.e., Smt. Geeta Devi was ill. The application was rejected by Trial Court observing that repeatedly tenants were seeking adjournment and there was no justification for adjourning the case. Thereafter defendants' counsel was directed to cross-examine the witness, i.e., PW 1, Ajay Kumar Gupta, which was not acted upon by defendants' counsel though he was present before the court. No evidence on behalf of defendants was sought to be adduced. The court, therefore, proceeded to hear arguments and dictated judgment in open court on the same day. Suit was decreed ex parte.

6. The legal heirs of defendant no. 1, Smt. Godawari Devi, and, defendant no. 2, Smt. Geeta Devi, i.e., all the petitioners preferred SCC Revision No. 20 of 1985 alleging that there was no privity of contract with plaintiff no. 1, hence suit, at his instance, was not maintainable. Rent up to February, 1977 was paid to plaintiff no. 2, hence there was no default. The plaintiff had moved an application under Order XV Rule 5 CPC which remained undisposed of, hence ex parte decree is illegal. It is also pleaded that defendant no. 2, Smt. Geeta Devi was sick and an application on her behalf, supported with medical certificate, was filed before Trial Court but rejected illegally and the court proceeding further to decide suit ex parte on the same day, has committed a patent error of law. It is also contended that court below decided the matter hurriedly without waiting for defendants' counsel or giving him opportunity of hearing.

7. None of the arguments of petitioners could prevail with the Revisional Court and revision dismissed vide judgment dated 14.12.1989 has given rise to the present writ petition.

8. Learned counsel for the petitioners submitted that on 03.01.1985, counsel for petitioners-defendants was not present and no opportunity was afforded to defendants either to cross-examine the witness or to lead evidence or to argue their case. The plaintiff-respondents themselves sought several adjournments in revision and said that an application under Order XV Rule 5 CPC was also pending yet the Trial Court proceeded to dictate the judgment without deciding pending application. It is also said that evidence of either party not led prior to 03.01.1985. Completion of every proceeding on the same day has resulted in denial of effective opportunity to petitioners-defendants.

9. Sri A.K. Mehrotra, learned counsel for the petitioners further submitted that in granting adjournments, the Court should adopt liberal approach. Moreover, a litigant should not be made to suffer on account of mistake of his counsel. Denial of adjournments amounts to violation of principle of natural justice. In support of his arguments, he placed reliance on Ramji Dass and others Vs. Mohan Singh, 1978 ARC 496 (SC); Siya Ram Vs. III Additional District Judge, Kanpur Nagar and others, 1990(2) ARC 490 (Paras 4 and 5); G.P. Srivastava Vs. R.K. Raizada and others, 2000(1) ARC 542(SC) (Paras 7 and 8); Mohd. Farooq Vs. Prescribed Authority and others, 1992(1) ARC 485 (Paras 4 and 5); and, Surendra Kumar and another Vs. Rajendra Kumar Agarwal, 1989 AWC 1164.

10. Sri Mehrotra next submitted that the application under Order XV Rule 5 CPC was also pending before Trial Court, hence it could not have proceeded to decree the suit without deciding the said application and supported the argument by relying on Ram Shankar Shukla Vs. Kailash Nath Tondon, 1985(1) ARC 364. He also argued, when adjournment application is taken up and counsel is not present then in that case, it cannot be said that defendant is present. Defendant's presence can be deemed only when his counsel is present. To fortify the above submission reliance is placed on Pyare Lal Vs. Sheoram Singh and another, 1983(2) ARC 187; and Smt. Phoolmati Vs. District Judge, Fatehpur and others, 1984(2) ARC 493. He argued that in view of Section 97 of Code of Civil Procedure (Amendment) Act, 1976, Allahabad High Court Amendment, under Order XVII Rule 2 CPC is ultra vires of Central Legislation. Lastly, it is contended that the matter of adjournment etc., are all procedural aspects. The courts must adopt a liberal approach so as to meet ends of justice and in this regard placed reliance on most celebrated judgment of Apex Court in Sangram Singh Vs. Election Tribunal Kotah and another, AIR 1955 SC 425 (Paras 16 and 17) and a Single Judge decision of this Court in Suryabali and others Vs. Additional District Judge, Deoria and others, 1989 ALJ 248 (Paras 5, 6 and 7).

11. I have given anxious thoughts to the submissions besides careful analysis of facts and law on the subject.

12. The suit was filed in 1972 and could be decided in 1985, i.e., almost with a span of 13 years. By no stretch of imagination it can be said that the Trial Court has proceeded in a hurried manner to decide the suit within an unreasonably short period. More than a decade cannot be said to be small period to give an impression of approach of hurriedness on the part of Trial Court. What actually prevailed with the Trial Court in taking such a long time, cannot be appreciated at this stage, in absence of complete order-sheet of Trial Court but the decade long span is self speaking.

13. However, something is discernible from the pleadings in writ petition. On 08.08.1975, suit was decreed ex parte, whereafter on a restoration application filed by tenants and complying with requirement of Section 17(1) proviso of Provincial Small Cause Court Act, 1887 (hereinafter referred to as the "Act, 1887"), ex parte judgment and decree dated 08.08.1975 was set aside and SCC Suit was restored. Thereafter one of the plaintiffs, i.e., Pyare Lal died on 25.02.1977 and his legal heirs were substituted. Then for non-payment of rent, landlords moved an application under Order XV Rule 5 CPC which was objected to by the tenants and it is said that application remained pending. It is, however, not in dispute that 03.01.1985 was the date fixed by Trial Court for hearing. It is also admitted that on the said date an application for adjournment (Paper No. 144/C) was filed through the defendants-tenants' Advocate Sri H.K. Seth alleging that Smt. Geeta Devi, one of defendants, was sick and, therefore, the matter should be adjourned. In para 7(c) and (d) of writ petition, it is averred that adjournment application when taken up by Trial Court, the counsel for petitioners-tenants, i.e., defendants in suit, was not present and in his absence the application was taken up and dismissed. It is interesting to note that this fact has been stated in paras 7(c) and (d) of the writ petition which have been sworn on the basis of record. In the memo of revision, while describing the facts, it has not been stated that counsel of defendants-tenants was not present when adjournment application and suit for hearing was taken up by Trial Court. In the grounds of revision, there are grounds No. 3 and 4 stating that Sri H.K. Seth was busy in another court when court below proceeded with suit but it is not pleaded that the observations otherwise made in the order of Trial Court are not correct. Moreover, it does not appear that this aspect was pressed before Revisional Court inasmuch as the copy of written submissions filed before Revisional Court has also been placed on record as Annexure-5 to the writ petition but there also, it is not stated anywhere that the application was rejected in absence of counsel or suit was taken up when counsel for defendants-tenants was not present. In fact, on this aspect, there is not even a whisper in the entire written submissions placed before Revisional Court. The judgment of Revisional Court also does not show that during course of arguments, any such fact was pressed on behalf of tenants that the orders have been passed by Trial Court in absence of counsel for tenants. It has been specifically stated by Revisional Court that except the issues it has discussed, no other point was raised by any of the parties.

14. Before this Court also, it is not stated anywhere in the writ petition that the aspect that orders were passed in absence of counsel for tenants was pressed before Revisional Court at any point of time. This Court asked from learned counsel for the petitioner as to why it was not possible for petitioners-tenants or their counsel to move an application for recall of orders passed by Trial Court, if those orders were passed in absence of counsel to which he could not give reply, except saying that since ex parte judgment itself was dictated in open court, hence no such application was filed before Trial Court.

15. Before this Court, learned counsel for the petitioner also did not say that Revisional Court has wrongly mentioned that no other point was raised for determination though various grounds were taken except that the Explanation added by Allahabad High Court to Order XVII Rule 2 CPC is inconsistent with amendment made in CPC in 1976 and defendants cannot be deemed to be present when counsel was not present.

16. Sri Mehrotra, learned counsel for the petitioner could not place any record before this Court to show, when application was taken up by Trial Court on 03.01.1985 and the impugned orders (Annexures-1 and 2 to the writ petition) were passed, the petitioners' counsel was not present in Trial Court and that the observations made in this regard are incorrect.

17. A perusal of Annexure-1 shows presence of two counsels, namely, Sri S.L. Goel, for plaintiff and Sri H.K. Seth for defendants. The order specifically states that defendants' counsel was directed to cross-examine the witness, i.e., PW 1, Sri Ajay Kumar Gupta but he declined. He was also given opportunity to adduce his evidence which also he failed and thereafter arguments were heard and judgment was dictated in open court. No affidavit of concerned counsel has been placed on record either before revisional court or this Court that he was not present when aforesaid orders were passed by Trial Court. The details of the case in which he alleged to have been actually engaged at the relevant time, has also not been given.

18. What transpires in a court has to be primarily seen from an order of court and not from the affidavits of parties filed subsequently in a different court, may by in higher court. In Sarguja Transport Service Vs. State Transport Appellate Tribunal, Gwalior & Ors., AIR 1987 SC 88 the Court held, what transpires in the court of law is to be seen from the order. In the present case, it is not said by petitioners anywhere that any other point was raised, argued and pressed but has not been considered by the Court.

19. Here the suit was pending for the last more than 12 years and was going to complete its journey of 13th year. Earlier also, it was decreed ex parte but restored. Before 03.01.1985, it is evident from record that on several occasions it was adjourned at the instance of petitioners-tenants. Even if one tenant was sick, no justification has been given, why suit could not have proceeded in absence of one of the tenants though all are represented through their counsel. It is also not understandable, why petitioners-tenants' counsel could not have cross-examined plaintiffs' sole witness even if one of defendants was absent. The tenants' counsel could have got requisite assistance from the defendants other than Smt. Geeta Devi who is said to be sick on that date. He could have proceeded further to examine plaintiffs' witness and thereafter seek a short time for adducing his evidence, if any.

20. The attempt and adament attitude shown by tenants' counsel is nothing but an audacity on the part of a litigant, before a court showing lack of cooperation and assistance so as to linger a case. It is a deliberate attitude so as to obstruct the court from deciding the case expeditiously and in any case within a reasonable time.

21. No litigant has a right, either in law, or, even in Constitution, or otherwise, to stretch judicial proceedings as long as he like so as to make it infinite, bringing the other side to a point of break, due to extraordinary delay. This attitude also results in making the litigation, many a times, extremely expensive. One cannot dispute that an undue and unreasonable hurry in disposal of a case, sometimes may not be appreciated but it does not mean that a litigant can be allowed to take advantage of flexibility shown by the court in granting adjournments to the extent of a right as if mere request for adjournment should constitute a mandatory and obligatory deferment of proceedings.

22. The Courts of Law in the country presently are reeling under an extraordinary pressure of heavy pendency which is nothing but a result of this kind of tendency on the part of one set of litigants. In most of the cases, the litigants apprehending a possible loss, always try to stretch proceedings to any extent. Umpteen illustrations are available to show that generations have handed over litigation to their progeny and people have died awaiting result of litigation initiated by them. In the matter of property disputes, now commonly it is said, and, judicial cognizance can also be taken, that a suit initiated by the old grand parents will be inherited by grand-children and still they may not be hopeful of having a decision in their life time. I find it useful to refer some observations in respect of dilatory tactics adopted by one set of litigants or other interested parties, noticed in the majority order dated 17.09.2010 by Special Full Bench of this Court in O.O.S. No. 4 of 1989, Sunni Central Board of Waqfs, U.P. and others Vs. Gopal Singh Visharad and others:

"10. . . . . . . . whenever a dispute is brought before a court of law it must be resolved expeditiously and in any case within a reasonable time.

14. These matters are pending for the last six decades inasmuch as the first suit was filed on 16th January 1950. After transfer of the suits to this Court three Judges are continuously engaged for the last more than 21 years. In the meantime, on several occasions the matter has also travelled and consumed time of the Apex Court as well. Is it what we have to deliver to our future generation that the courts of law in India are not capable to decide cases for generations and on a mere drop of a hat, an excuse is found to defer the matter or adjourn the case? Are we here to find out ways and means of deferring adjudication or to make adjudication? No case, no dispute and no apprehension can be above the honest discharge of constitutional function by an independent judiciary. The people of India are already having serious complaints in abundance in recent past against the judicial system of this country that it keeps the matter lingering on for generations and attempt to decide cases is minimal.

15. With the increased awareness, the people are getting conscious of their right and do not hesitate in asserting it. If the enforcement of rights get deferred not because of any slackness on their part, but due to extremely slow pace or inaction on the part of judiciary, their complaint cannot be levelled frivolous. In a system of good governance, effective, independent judicial system is not only the requirement but the real crux lies whether it can deliver justice within reasonable time; whether it can decide the issue expeditiously and before the patience of the people exhausts? These are some of the aspects which need be seriously taken up by the Bench and Bar both. This is the high time when not only the Presiding Officers of the Court but also the members of the Bar who are also officers of the Court should ponder over seriously and find out the way in which cases may be decided expeditiously instead of inventing the way for their deferment and adjournments. The courts are meant for adjudication and not for adjournments or deferment.

17. The applicant has referred to media reports apprehending widespread violence and law and order situation. We do not intend to make any comment thereon but our experience shows when the Courts have not decided the things, such situation has arisen and has resulted in creating unrest in the public to take the matter on the road but not when any decision has been given by a court of law. When the matter is decided, particularly, when the concerned Court is not the last Court, the people have further remedy of appeal etc. and, therefore, they patiently pursue such remedy keeping their sentiments in low profile. In the above circumstances, the things remain silent. However, the state of indecisiveness or the impression that the Courts are reluctant to discharge their function, create more serious unrest. For us it is not a matter of simple adjudication but it is our constitutional function and we will be failing in our duty if we fail to discharge such function within a reasonable time. We are conscious of our duty as well as constitutional obligation and shall not allow to weaken the faith of the people of India which they have bestowed upon us."

(emphasis added)

23. The engagement of counsel in another court can be appreciated but it cannot be a practice or pretext to prolong litigation. This fact has to be pleaded and proved by adducing appropriate material on record. As already noticed, the memo of revision consists of two parts, i.e., brief facts and grounds of revision. In the brief facts, the adjournment application and its rejection by Trial Court is duly mentioned but there is not even a word that the orders were passed by Trial Court when counsel for defendants-tenants was not present. It is only, and that too, in a clandestine manner, has come in the grounds of revision, i.e., grounds no. 3 and 4. In the present writ petition this is a statement of fact made in paras 7(c) and (d) but has been sworn on the basis of record without specifying as to what record support the aforesaid averments. No details have been given in respect of case and court in which allegedly petitioners' counsel, Sri H.K. Seth was engaged and why the counsel could not contest before Trial Court by moving an application that his presence was wrongly mentioned. It appears that all these are subsequent thoughts so as to make out a case, by a litigant, who has already shown his conduct of non-cooperation with Trial Court for expeditious disposal of case.

24. Now I come to the various legal aspects raised in the matter.

25. It is no doubt true that rules of procedure should be given a liberal approach but that liberal approach does not mean an approach in favour of one of the litigants only. A liberal approach means, no pedantic and technical adherence to the rules of procedure but to act in a manner which will do justice to both sides, equally and uniformly. Giving undue adjournments to one party smells a favour or a partisan approach to such party and is against interest of other party. No Court can be a party to such approach or conduct. It would have to follow an approach of equal treatment to both sides. Therefore, a reasonable adjournment should be accepted but the party, trying to misuse process of law seeking unwarranted, undue and unreasonable adjournments, should be snubbed with iron hands. Time has come when Courts must see that cases are decided within a reasonable time so that confidence of people in the system of justice may remain intact. Often it is said that justice delayed is justice denied. The Court finds no pride in giving occasion frequently repeating the above idiom. It should make an effort to give a message to one and all, that, Courts of justice in this country are beyond any colour of inaction, favouritism, unfairness, indecisiveness etc. but are fully competent to decide cases of whatever nature before it, in accordance with law, expeditiously, and, in any case, within a sufficiently reasonable time, to generate and maintain confidence of people in the system.

26. I may refer hereat the authorities cited at Bar in support of the claim of petitioners.

27. The first is the decision of Apex Court in Sangram Singh (supra). The Court said that the Code of Procedure is something designed to facilitate justice and further its ends. It is not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical construction of statutes which leaves no room for reasonable elasticity of interpretation should, therefore, be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. The procedure is basically founded on the principle of interest of justice which requires that men should not be condemned unheard, that decisions should not be reached behind their back. The proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating therein. The Court also recognised exceptions to the above principles. Having said so and discussing certain authorities and provisions of CPC in para 26 of the judgment, the Court said, that when defendant has been served and has been afforded opportunity of appearing then if he does not appear, the Court may proceed in his absence. The Court has concluded its views in para 33 of the judgment, which reads as under:

"We have seen that if the defendant does not appear at the first hearing, the Court can proceed 'ex parte', which means that it can proceeded without a written statement; and O. 9, R. 7 makes it clear that unless good cause is shown the defendant cannot be related to the position that he would have occupied if he had appeared. That means that he cannot put in a written statement unless he is allowed to do so, and if the case is one in which the Court considers a written statement should have been put in, the consequences, entailed by O. 8, R.10 must be suffered."

28. Then it also took a note of caution that when we speak of the ends of justice, we mean justice not only to the defendants and to the other side but also to witnesses and others who may be inconvenienced.

29. In Suryabali (supra) the Court said, when Court proceeds ex parte and any party to a suit to whom time has been granted to produce evidence, fails to produce the same, it shall grant time fixing another date, may be a short one. The Court specifically observed that procedure prescribed in Order XVII Rule 3 CPC was not followed and, therefore, ex parte proceedings were not valid.

30. In Siya Ram (Supra) the Court, as a matter of fact, found that due to serious ailment of son relating to mental disorder, the entire family was disturbed causing non appearance of appellant and, therefore, denial of opportunity to such a person was not justified.

31. In G.P. Srivastava (supra) the question arose as to what would be sufficient cause in a given case for recalling an ex parte order.

32. In Mohd. Farooq (supra) the Court found as a matter of fact that counsel for tenant admittedly had failed to communicate the date fixed in the matter as a result whereof the tenant could not appeare. It is in these facts and circumstances, the Court held that ex parte decision is bad.

33. In Surendra Kumar (supra) the defendants had not filed their written statement and the Court found from order sheet that there was some hurry or haste for disposal of case on the part of Court.

34. In Pyare Lal (supra) and Smt. Phulmati (supra) also the Court found non compliance of Order XVII Rule 3.

35. However, I find that all these authorities, from bare perusal of facts stated therein, are clearly inapplicable in the present case. Here the number of defendants was quite large and besides Smt. Geeta Devi a large number of them were major and capable to pursue the court case. It is not stated anywhere that only Smt. Geeta Devi was doing pairavi of the case and none else. The defendants were represented through their counsel. Adjournment was sought by expressing inability to appear before Trial Court in respect of only one of several defendants. When the application was rejected, the defendants' counsel thereafter adopted procedure of non-cooperation and neither he examined prosecution witness nor expressed his desire to adduce his own evidence. He also did not seek any adjournment for adducing evidence. It is in these circumstances, I do not find any procedural infraction on the part of court below.

36. All the arguments advanced by learned counsel for the petitioners are under the impression that tenants' counsel was absent when impugned orders were passed by Trial Court but it has miserably failed to substantiate it. Even the judgments cited at bar, do not help the petitioner in any manner.

37. In my view, this writ petition, therefore, deserves to be dismissed with costs.

38. The writ petition is accordingly dismissed with costs, which I quantify to Rs. 10,000/-.

Order Date :-23.11.2012

AK