Smt.Shashi Wahal And Another vs Additional District Judge ...
2013 Latest Caselaw 2275 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R.
 
Court No. - 14
 

 
Case :- RENT CONTROL No. - 58 of 2013
 

 
Petitioner :- Smt.Shashi Wahal And Another
 
Respondent :- Additional District Judge Ayodhya Prakaran Lko.And Ors.
 
Petitioner Counsel :- Jaspreet Singh
 
Respondent Counsel :- Manish Kumar
 

 
Hon'ble Saeed-Uz-Zaman Siddiqi,J.

By means of this writ petition, under Article 226 of the Constitution of India, the petitioners have sought for writ in the nature of certiorari to quash the judgment and order dated 13.08.2010, passed by learned Prescribed Authority (under U.P. Act No. 13 of 1972) as contained in Annexure No. 7 and to quash the judgment and order dated 24.04.2013, passed by the Additional District Judge in Rent Appeal No. 49 of 2010.

Brief facts of the case are that the petitioners are in possession of the disputed premises either as tenant or as sub-tenant. The opposite party Nos. 3 to 5 moved application for release of the disputed premises under Section 21 (i) (a) and under Section 21 (i) (b) of U.P. Act No. 13 of 1972 (hereinafter referred to as "the Act"), on the ground of bona fide requirement and release. The said application was allowed vide judgment dated 13.08.2010, against which the tenant/petitioners preferred rent appeal No. 49 of 2010, which has also been dismissed. After dismissal of the appeal, the landlords/(O.P. Nos. 3 to 5) moved application in the pending execution case that the judgment of the learned Prescribed Authority has been confirmed by the Appellate Court and as such the warrant for possession be issued in their favour. The Learned Prescribed Authority passed an order that 25.05.2013 is fixed in the execution case and the application shall be entertained on that date. Feeling aggrieved by the order of the Learned Prescribed Authority, the landlord (O.P. No. 3 to 5) preferred W.P. (RC) No. 252 of 2013, in which it was directed that the learned Prescribed Authority shall not delay the execution process on the date fixed i.e. 25.05.2013 and shall pass an order on that date and, in case, on any exigency, beyond his control the Execution Court shall ensure that the matter is finally disposed of before beginning of summer vacation. Though, the petitioners did not appear in the writ petition nor before the Learned Prescribed Authority, yet they received information out of the Court regarding the order, hence the present writ petition has been preferred.

Learned Counsel for the O.P. Nos. 3 to 5/landlords put in appearance and detailed arguments were heard from both the sides.

The landlords, in their application under Section 21 of the Act alleged that the disputed premises was under tenancy of proforma opposite party Nos. 6 & 7 who sublet the same to the contesting opposite party Nos. 3 to 5, who are unauthorized occupants. It is pertinent to note here that the tenancy in favour of opposite party nos. 4 and 5 was subsisting before promulgation of the Act under U.P. (Temporary) Control of Rent and Eviction Act, 1947. It was provided under Sub-Section 3 of Section 3 that no tenant shall sublet any portion of the accommodation in his tenancy except with the permission, in writing, of the landlord and of the District Magistrate, previously obtained. Section 14 of the Act deals with regularization of existing tenants. The pleadings to this effect were made by the landlords in their release application under Section 21 of the Act and it was replied by the contesting opposite party Nos. 3 to 5 in their written Statement. Such assertions were neither required nor warranted to decide the application under Section 21 of the Act. Under the Act, the release application under Section 21 has to be decided only on the ground of bona fide requirement of the landlord either in its existing form or after demolition and the new construction by the landlord for occupation by himself or any member of his family or that the building is in a dilapidated condition and is required for the purpose of demolition and new construction. This is the only requirement of law. The pleadings to this effect were unnecessarily made in the application under Section 21 of the Act, due to inadvertence of the learned counsel for the opposite party Nos. 3 to 5, who moved the application for release. The requirement of law and the rules of pleading as are prevalent in the Country right from centuries is that the pleading should contain a statement in a concise form of the material facts. The petitioners are tenants or sub-tenant is quite immaterial and has unnecessarily attracted the attention of the learned Prescribed Authority, and the learned Appellate Court and thereby, precious time of the Court was wasted. Even the learned counsel for the petitioners argued this point before this Court at length and relied upon the law laid down by this Court in Rajendra Nath Tiwari and Anr. vs. The IIIrd Addl. District Judge, Allahabad and Ors. [1981 ARC 271, Malik Mohammad v. V Addl. District Judge, Aligarh and Ors. [ 1981 ARC 124], Badri Nath Garg vs. Sheo Prasad Tandon  [1990(16) ALR  186, Kishan Chandra Jain  vs. Rent Control and Eviction Officer/City Magistrate, Kanpur Nagar and ors. [2009 (76) ALR 21], Jhaba Lal (Dead)  vs. The District Judge, Dehradun and Ors.  [1998 (34) ALR 681, M/s. Khanna Brothers, Kanpur and Others vs. Smt. Sita Devi and Ors. [1985 (2) ARC 415.  There is no dispute in these authorities.

The matter has also finally been settled by the Hon'ble Apex Court in the case of Shiv Kumar vs. Sajida and Ors. [1998 (1) ARC 218], in which it was held that there is no force in the submission that no petition under Section 21 of the Act was competent against the sub-tenant. It is a common practice in India that generally the petitions are drafted by Counsels and not by the parties, but despite this fact, neither the pleadings of the parties are in concise form nor based upon relevant and material facts alone. The pleadings of the parties are based upon unnecessary and vexatious facts, which has dragged both the Courts below to have heard the arguments and made discussions thereon.

The next question relate to the bona fide requirement and release in favour of the landlord, either in the present shape or of the demolition. The learned Prescribed Authority has exhaustively dealt with the matter and has reached to the correct conclusion that the landlords have bona fide required the disputed premises and the petitioners have already stated that the building is more than 80 years old, which is admitted to the landlords and the landlords have filed the inspection report and estimate of the Architect and valuer, who has reported that the disputed premises is 100 years old. The petitioners have not produced any evidence whatsoever to contradict the report of the valuer. On the other hand, the petitioners have admitted by informing the landlords in writing that the disputed premises require immediate repairing which shall take not less than Rs. 1,00,000/-. Learned counsel for the opposite party Nos. 3 to 5 submitted a copy of letter written by the petitioners to them on 20.08.2009, mentioning therein:-

"a. That for want of annual and other repairs/white washing, a portion of the rented shop has gave away on 27.07.2009 consequently, it is at present open to rains and winds.

b. That on account of the damages to the premises/shop, business activities from the shop were stalled and closed.

c. That under law you, as the landlords are under obligation to carry out the repairs however, to our estimate the expenses expected for laying the roof and other incidental works may not be less than Rs. 1,00,000/- (Rupees one lac only)

d. That the amount required for making the shop water and wind proof is since more than two months rent therefore, by this notice we are making request that either such repairs be carried out by you or permit us to undertake the works with your consent. We are ready to enhance the rate of rent in accordance with the law."

This court being a court of record direct that the copy of the said notice be taken on record as it finds place in page No. 15 of the judgment of the learned Prescribed Authority. Now the admitted position as held by the two Courts below is that the building is in a dilapidated condition and the petitioners are simply occupying it on the strength of the provisions contained in the Act and dragging their landlords (O.P. No. 3 to 5) to different courts, taking undue advantage of the hierarchy of the Courts as prescribed under the law. This Court cannot ignore the fact that the disputed premises lies near Vidhan Sabha, which is the prime location of the City. Its vacation without getting a handsome amount is against the order of the day and the poor landlords have fallen victim of this tendency of the society. The learned Appellate Court has also discussed the facts and evidence led by the parties in a detailed manner and has framed this point for determination. Fortunately, the learned Appellate Court has framed relevant points of determination which are necessary to decide the application for release under Section 21 of the Act and has discussed the law laid down in a catena of decisions of this Court as well as the Hon'ble Apex Court and has reached to the correct conclusion.

The learned Prescribed Authority has exhaustively dealt with the evidence led by the landlords to the effect that the building is in a dilapidated condition and that the landlords have sufficient amount to spend. The learned Prescribed Authority has also mentioned specifically that the tenants who are petitioners before this court have not led any evidence to contradict this evidence led by the landlords. The learned Prescribed Authority has also specifically discussed and has reached to the correct conclusion that the landlords have complied with the provisions contained in Rule 17 framed under the Act, even the landlords have filed the Bank statement of applicant No. 1 to prove that they have sufficient amount to spend on construction etc.  The learned Appellate Court has also dealt with this subject in a judicial manner as is evident from the copy of judgment and order as contained in Annexure No. 9 to the writ petition.  It is not only proved but virtually admitted that the applicant no. 1 has retired from the Department of English, Christ Church College, Kanpur and then after she was appointed as Lecturer in the Department of English, Loretto Degree College, Lucknow and held the post of Head of the Department of English in Oudh Girls Degree College, Lucknow, who has now attained the age of superannuation and she is in need of starting her own coaching/Teaching Centre to teach English language and, as such, she is in dire need of accommodation to start her coaching and this fact has not been denied by the tenant petitioners in their written statement.

Learned Counsel for the petitioners relied upon the law laid down by this Court in Haji Baqridan (dead) (through L.R's) and others vs. Iind Additional District Judge, Jaunpur and Others [1993 (1) ARC 222], in which the release application was allowed by the learned Prescribed Authority but the appeal was allowed holding that the application as filed was not legally maintainable on the ground that no remedy under Section 21 of the Act was available against the sub-tenant, which was held by this Court to be bad in law in which this Court has held that since the order of release under Section 21 of the Act as confirmed by the appellate authority under Section 22 of the Act is enforceable against any other person so that the landlord is to put in possession as provided under Section 23 of the Act. The pleading has no force that the application under Section 21 of the Act is not maintainable against the sub-tenant. This is what as has been held by the Hon'ble Apex Court in the case of Shiv Kumar (supra).

Learned Senior Advocate, Sri Prashant Chandra relied upon a catena of decisions of this Court which relate to Section 14 of the Act and  relate to regularization of occupation of sub-tenant, which are not relevant for the purpose of deciding the case under Section 21 of the Act by the Learned Prescribed Authority and appeal under Section 22 of the Act by the learned Appellate Court. This court need not to enter into that controversy because it is irrelevant and has no bearing on the scope of Section 21 of the Act. The petitioners have opened this channel due to lapse of the drafting of the application of release under Section 21 of the Act by the then learned counsel for the landlords and intend to derive undue advantage of multitier judicial system prevalent in the country.

In Gayatri Devi & Ors. v. Shashi Pal Singh, reported in 2005 AIR SCW 2070, the Hon'ble Apex Court has held as under:-

"This appeal demonstrates how a determined and dishonest litigant can interminably drag on litigation to frustrate the results of a judicial determination in favour of the other side.......

On 1.11.1987 the appellant committed perhaps the gravest blunder of her life of letting out the suit property to the respondent-tenant at a monthly rent of Rs.1300/-, which subsequently came to be increased to Rs.1500/- w.e.f. 1.1.1990.....

The history of this litigation shows nothing but cussedness and lack of bona fides on the part of the respondent. Apart from his tenacity and determination to prevent the appellants from enjoying the fruits of the decree, there appears to be nothing commendable in the case. Even before us the same arguments of fraud, and that the appellants were not legally owners of the suit property, were pleaded.....

In our view, the conduct of the respondent deserves condemnation which we indicate by imposition of exemplary costs of Rs.20,000/- on the respondent."

The Hon'ble Apex Court has given a note of caution to such litigative aerobatics in Ravinder Kaur v. Ashok Kumar & Anr., reported in 2003 AIR SCW 7158, in which it was held:-

"Courts of law should be careful enough to see through such diabolical plans of the judgment-debators to deny the decree-holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system."

It is well settled that the jurisdiction under Article 226 of the Constitution of India are extra-ordinary, equitable and discretionary which cannot be exercised as an Appellate Forum.

This is the experience of this Court that in last 40 years, a new breed of litigants has cropped up. Those, who belong to this breed, do not have any respect for truth. They shamelessly resort falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new generation of litigants, the Courts have, from time to time evolved new rules and, it is now well established that the litigants, who attempt to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, are not entitled to any relief, interim or otherwise. I find force while holding this, by the law laid down in Dalip Singh v. State of U.P. (2010) 2 SCC, 114 by Hon'ble Supreme Court.

Before concluding, I may mention that the pleadings of the parties, the evidence led by them and the discussions made and conclusions arrived at by the learned Prescribed Authority as well as the appellate Court, it is abundantly clear that the disputed premises is in a dilapidated shape and the landlords bona fide require the same for their use either in the present form or after demolition and comparative hardship lies in favour of the landlords but for only absurdity in the pleadings of the parties that they have tried to drag the learned Prescribed Authority, the learned Appellate Court as well as this Court into the controversy of tenant and sub-tenant, which is not at all relevant for the purpose of deciding an application under Section 21 of the Act. The instant proceedings were not initiated before the learned Prescribed Authority under Section 20 of the Act. Such bad pleadings have very often wasted the precious time of the Court right from the lower strata to the higher strata but the Courts are expected to function in such a fashion that only material and relevant facts should be taken note of regarding such bad pleadings.

A larger Bench of Hon'ble Apex Court in Sayed Dastagir vs. T.R. Gopalakrishna Setty reported in AIR 1999 Supreme Court 3029 has held as under:-

"In construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of ones case for a relief. Such an expression may be pointed, precise, some times vague but still could be gathered what he wants to convey through only by reading the whole pleading, depends on the person drafting a plea. In India most of the pleas are drafted by counsels hence aforesaid difference of pleas which inevitably differ from one to other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test, whether he has performed his obligations one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form."

It has further been held in the above mentioned case:-

"Courts cannot draw any inference in abstract or to give such hyper technical interpretation to defeat a claim of specific performance which defeats the very objective for which the said Act was enacted."

The object of the statute is that the Court should indulge themselves to the merits of the case that come before them and should not flow with the sentiments of the parties. It is the primary duty of the Court to decide the lis as required by law. It is the defect of the system that the Courts of law are overburdened and has no spare time to scrutinize the files as it is expected by the rules of justice. Had the rules of procedure followed in its correct perspective. Such pleadings should have been directed to be struck out or amended by the order of the Court itself as provided under Order VI Rule 16  of the Code of Civil Procedure, so that the precious time of the court may be streamlined towards material proposition of fact or law as affirmed by one party, denied by the other and it is necessary to adjudicate the same under the law for the time being in force.

With these observations, I do not find any merits in this case and writ petition is dismissed accordingly.

Order Date :- 17.5.2013

Nitesh