Mohammad Ibrahim Abid & Ors. vs Sameer Om
2015 Latest Caselaw 2690 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

							           A.F.R.
 
							        RESERVED
 
Case :- CIVIL REVISION No. - 27 of 2012
 
Revisionist :- Mohammad Ibrahim Abid & Ors.
 
Opposite Party :- Sameer Om
 
Counsel for Revisionist :- In Person,Hem Chandra Bajpai,Mohd.Abrahim Abid,R N Gupta,Zainul Aabdin
 
Counsel for Opposite Party :- Bireshwar Nath,R.K.  Sharma,Ramesh Chandra Pathak
 

 
Hon'ble Sudhir Kumar Saxena,J.

1. Tenant-revisionist has approached this Court for the third time, challenging the judgment and decree dated 09/02/2012 passed by Judge, Small Cause Court/Additional District Judge, court no. 1, Rae Bareli decreeing S.C.C. Suit no. 03/2006, for recovery of arrears of rent and ejectment from shop.

2. Civil revision no. 7 of 2012 was filed challenging the order dated 22/11/2011 passed by Judge, small cause courts rejecting application under Section 23 of the Provincial Small Cause Courts Act. This revision was dismissed as infructuous on the statement of counsel for the revisionist on 20/01/2014.

3. Another revision no. 43 of 2009 challenging the order refusing to re-examine a witness filed by the revisionist, was also dismissed for non-prosecution.

4. Heard Sri Mohammad Ibrahim Abid-revisionist (in person), Sri Zainul Aabdin, counsel for the remaining revisionists, Sri Bireshwar Nath and Sri R.K. Sharma, counsels for the opposite parties.

5. Briefly stated relevant facts are that Sri Sameer Om and Sri Hari Om filed suit for ejectment of Sri Abid Hussain from the shop, which was let out to him @ Rs. 330/- per month (Rs. 300/- as rent and Rs. 30/- as local taxes). Since defendant did not pay rent from the month of July 1983 despite demand, tenancy was terminated vide notice dated 05/12/2005. Despite service, neither defendant paid the rent and taxes nor he vacated the shop, hence, the suit. It was also stated in the plaint that in reply to the notice sent by plaintiff, tenant said that he had already paid Rs. 50,000/- at the time of commencement of tenancy from which tax and rent would continue to be adjusted automatically and after adjustment of the above amount, landlord would intimate the tenant. Defendant admitted only Rs. 39,100/-, regarding which a cheque was sent but no cheque was received. In all, plaintiffs claimed a sum of Rs. 98,597/- as arrears of rent etc.

6. (a) Defendant in his written statement has admitted that he was tenant of the shop and he admitted rate of rent, as well. It was stated that he has paid rent till December 2005 on 03/12/2005. In para 5 of the written statement, it was stated that all the taxes including rent have been paid up to 10/12/2006 as up to December 2005 paid by cash to plaintiff no. 2, thereafter in court. Moreover, rent beyond the period of three years cannot be claimed as the same has become time barred. It was pleaded that "the answering defendant is still lawful tenant and has continuously been paying the rent and legally occupying the shop in question since 1983 @ Rs. 3,307/- as rent which includes tax also but plaintiff no. 2, who is a Senior Advocate of the Bar has not issued rent receipts."

(b) Family settlement between the two plaintiffs pleaded in the plaint was also challenged. Para 12 of the written statement is relevant for appreciating the argument of tenant that will be considered later and the same is being reproduced below :-

" 12. That the answering defendant has properly replied the notice well within time by denying the contents of notice on 04-1-2006 vide postal receipt no. RLA-3595 dated 05-01-2006 which would have been served upon the plaintiff as not returned back as yet wherein the answering defendant has specifically mentioned about the oral contract between the parties for the sale/purchase of the shop for Rs. 50,000/- (fifty thousand) and in compliance thereof defendant's son has issued a cheque no. C/A No. 008327 for Rs. 39,100/-(thirty nine thousand one hundred) dated 04-1-2006 of District Co-operative Bank Ltd. Rae Bareli given by the son of defendant personally to the plaintiff No. 2 in the Bar Association thereafter when the plaintiff No. 2 backed out and became adamant not to sell the shop the payment of the cheque was stopped as such could not be encashed."

7. In para 14, it was stated that rent up to December 2005 was paid by cash but no receipt was issued by either of the plaintiffs and rent for the period from January 2006 and onward was deposited under Order 15 Rule 5 C.P.C., whereby a sum of Rs. 2,780/- was deposited covering the rent up to December 2006.

8. During pendency of suit, Sri Abid Hussain died, whereupon legal representatives were brought on record. Legal representatives filed additional written statement on 15/09/2011 (191 Ga). In para 2 of additional written statement, it was stated that they fully adopt the reply filed by defendant-Abid Hussain. However, in additional pleas, a different stand has been taken. In para 4, it was stated that plaintiffs are neither owner nor landlord of the shop in question as land belongs to the Government of U.P. and plaintiffs have fraudulently raised construction of shops on the Government land. In para 6, it was stated that 'plaintiffs have picked up only answering defendants, although, he has number of other shops. He has collusive pact to the district administration as such, they should be debarred from Uttar Pradesh Bar Council forthwith'. In para 7, criminal action was also sought against the plaintiffs. It was repeatedly stated that plaintiffs should show title deeds whether they are recorded owner and Bhoomidhar. Title deeds produced before the Plan Sanctioning Authority, Rae Bareli should be filed in this case so that, validity of the constructions can be judged. Thereafter answering defendants set up title in one Gulam Moinuddin, from whom property came to Smt. Kamini, Pankaj, Naveen and Manish Kumar, who are owner of the land over which shops are situated. Charge of committing forgery and cheating was made in paragraph 7 K.

9. Para 7 (N) of the additional written statement is being reproduced below:-

" Since there is title and ownership dispute and title of the plaintiffs is defective as he is neither owner nor landlords of the lands and shops existing the shops thereon."

10. Again in para 8, it was stated that unclaimed property belongs to State or to the legal representatives of Hanuman.

11. From the above written statement, it is manifest that while original tenant/father has admitted plaintiffs to be landlord of the shop and also admitted the rate of rent but after his death, his legal representatives took a somersault denying the relationship of landlord and tenant as well as title.

12. Plaintiffs examined Sri Hari Om as P.W. 1 while from the defence side, three witnesses were examined. D.W.1- Yunus alleging himself to be Manager of the shop of defendants averred that he paid the rent.

13. Rafeeq- D.W. 2, who stated that before him, a sum of Rs. 660/- was paid by defendant Abid Hussain to Sri Hari Om (plaintiff no. 2), who did not give any receipt. He had come to civil court and in his presence, Rs. 660/- was paid. He has not mentioned any date.

14. Third witness produced by defendant was Rafeeq Ahmad. His father was a registered Clerk to a lawyer in civil court. He visits court off and on to meet defendant Mohd. Abid. He stated that around seventeen years ago, in his presence defendant had paid a sum of Rs. 1000/- to Hari Om. This statement was given on 22/05/2008 and according to statement, this witness is giving testimony of something that happened in the year 1991. No other witness was examined by the defendants.

15. Following points of determination were framed by learned Judge :-

" 1- क्या वादीगण विवादित दूकान के स्वामी नहीं है जैसा कि प्रतिवादीगण का कथन है ?

2- क्या यह न्यायालय वादीगण द्वारा विवादित दूकान के सम्बन्ध में पारित नगरपालिका के मानचित्र व निर्माण की वैधानिकता को देखने के लिए सक्षम है अथवा नहीं ?

 3- क्या वादीगण एवं प्रतिवादीगण के बीच मकानदार व किरायेदार का रिश्ता        है ?
 
 4- क्या वादीगण द्वारा प्रेषित नोटिस अन्तर्गत धारा 106 सम्पत्ति अन्तरण अधिनियम दिनांक 05-12-05 विधि मान्य है ?
 
 5- क्या वादीगण का प्रतिवादीगण के ऊपर एक जुलाई 1983 से 5 जनवरी 2006 तक का किराया अवशेष है ?
 
 6- क्या प्रस्तुत दावा धारा 23 प्रान्तीय लघु वाद न्यायालय अधिनियम के अन्तर्गत इस न्यायालय द्वारा परीक्षणीय नहीं है ?
 
 7-  क्या प्रतिवादीगण डिफाल्टर नहीं है ?
 
 8- क्या प्रतिवादीगण द्वारा वादीगण के विवादित दूकान के स्वामित्व को इन्कार करने से प्रतिवादीगण धारा 20 (2)(एफ) ऐक्ट 13 सन 72 के प्रावधान के अनुसार बेदखल होने लायक है ?
 
 9- क्या  वादीगण किसी अनुतोष के मुस्तहक है ?"
 

16. It was found by the trial court on different dates that defendant having admitted the relationship of landlord and tenant in his written statement, application of third party to be impleaded claiming ownership cannot be allowed and plaint was not liable to be returned under Section 23 of Provincial Small Cause Courts Act. As stated earlier, orders passed on different dates were either not challenged before this Court or challenged by means of two revisions but unsuccessfully.

17. Trial court came to conclusion that a sum of Rs. 39,100/- was due as arrears of rent, which was not paid. Moreover, defendants having denied the ownership and title of the landlord have made them liable for ejectment under Section 20(2) (f) of U.P. Act no. 13 of 1972. With these findings, suit was decreed for a sum of Rs. 39,100/- as arrears of rent and damages @ Rs. 330 per month till the date of possession. Defendants were directed to vacate the shop within a month. This very decree dated 09/02/2012 has been challenged in this revision.

18. From the pleadings, it is apparent that defendant had admitted plaintiffs as landlord and himself to be tenant of the shop. There is no dispute about rate of rent. Defendant however disputed the claim (see reply to notice) on the ground that he had already paid Rs. 50,000/- at the time of commencement of tenancy, which admittedly commenced in the year 1983, it was agreed that rent would be adjusted against the sum of Rs. 50,000/- paid in the year 1983. There is however no evidence (documentary or oral) to establish this assertion. No such case has been taken in written statement. Defendant has not entered the witness box. Even if for the sake of argument Rs. 50,000/- are taken to have been paid, that amount would get exhausted in or before thirteen years i.e. 1996. There is no specific allegation in the written statement as to how the rent was paid thereafter. In fact in the reply to notice, a sum of Rs. 39,100/- was admitted as due. Offer of selling the shop for Rs. 50,000/- although mentioned in reply to notice does not get any credence from the written statement.

19. So far as payment through cheque is concerned, there are varying stands in the written statement. In reply to notice, it is said that a cheque of Rs. 39,100/- is being sent but plaintiff no. 2 specifically denied that no cheque was received along with reply to notice. In the written statement, however, it is stated by Sri Abid Hussain that cheque was personally handed over by his son Mohd. Ibrahim Abid in the bar association. There is stark contradiction in the mode of giving the cheque, which amount was never paid as defendant's own case is that instructions to stop payment were issued to Bank. It is thus apparent that theory of offering payment through cheque which is neither here nor there is nothing but a subterfuge.

20. It is relevant to state that in the notice, a sum of Rs. 89,100/- was claimed as arrears of rent. This very amount was claimed in the notice given by landlord. In reply to this notice, Sri Mohd. Ibrahim Abid, Advocate sent a reply on 04.01.2006 admitting therein that a sum of Rs. 39,100/- only is due as Rs. 50,000/- has already been paid in advance. He is liable to pay a sum of Rs. 39,100/- only, which he is prepared to pay and cheque of this amount has also been sent. Plaint along with copy of notice was filed on 10/02/2006. Original receipts given by post-office and their copy were also filed. These papers were filed by Fard no. 4 Ga.

21. In the plaint, reference of the reply of notice dated 04/01/2006 sent by Mohd. Ibrahim Abid, Advocate finds mention wherein a sum of Rs. 39,100/- was admitted to be due. In written-statement filed on 28/09/2006, six months after the reply admitting a sum of Rs. 39,100/- to be due was filed in the court, there is no reference of the reply of notice mentioned in the plaint and filed on 10/02/2006. In the written statement, another reply to notice was introduced which was sent by the tenant himself, in which Rs. 39.100/- has been explained as an amount for purchasing the shop. This reply allegedly sent by defendant-tenant himself has not been proved by any witnesses. Neither defendant-tenant himself appeared nor his son (who as an advocate had replied to the notice sent by landlord). Either could have appeared and stated that the reply to notice admitting Rs. 39,100/- due as arrears of rent was not actually sent by him as it did not contain his signature, thereafter process of verification might have taken place.

22. Defendant-tenant had died after three years of filing plaint and during his lifetime, all the witnesses have been examined by the tenant. Witnesses mainly asserted that rent was paid in cash to landlord without there being any receipt. A parallel reply of the same date i.e. 04/01/2006 has been set up, in which a different explanation of Rs. 39,100/- has come. None of the witnesses examined by the defendant has said anything about the reply to notice, admitting rent to be due. This displays how an effort was made to complicate the issues. Even logically, a sum of Rs. 39,100/- does not appear to be price of the shop. It fits as an amount towards arrears of rent as in the notice Rs. 89,100/- was claimed as arrears. Where is the specific pleading and evidence ? Had the said reply (04/01/2006) been denied ? In the absence of any specific plea and evidence to that effect, mere disowning the reply orally in this court, would not help tenant and has been rightly disbelieved by the trial court.

23. Plaintiff had specifically mentioned in the plaint that defendant in his reply to the notice had admitted Rs. 39,100/- to be due as arrears of rent regarding which cheque was sent. This allegation is contained in para 4 of the plaint. In written statement, however, there is no specific denial. The only denial is that 'contents of para 4 are wrongly mentioned, hence denied. Please see additional pleas also'.

24. So far as receipts are concerned, plaintiff's case is that he has been issuing receipts and he has filed receipts before trial court. Defendant's case is that landlord did not give receipts to him, albeit, he is issuing receipts to other tenants.

25. Defendant thereafter could have saved the tenancy by making deposit under Section 20(4) of the Act but no such deposit was made, which included the entire amount of rent, costs of suit plus interest etc. Deposit, if any, made under Order 15 Rule 5 C.P.C. would not save the ejectment. It may be relevant to quote the reply of notice given by Mohd. Ibrahim Abid on 04/01/2006, as under:-

"इस प्रकार से मेरे सायल द्वारा श्री हरिओम दुकानमालिक को मुo 39100/- की धनराशि ही देय होती है जिसे वह अदा करने को तैयार है I

5- यह कि चूँकि पूर्व तय शर्तों के अनुसार मेरे सायल मुo 39100/- अदा करने हेतु तैयार है जिससे किरायेदारी समाप्त करने तथा दूकान को खाली कर के कब्ज़ा देने का प्रश्न नहीं उत्पन्न होता है I

6- यह कि जहाँ तक कथित बकाया किराया व टैक्स व हरजा की वसुली एवं बेदखली का दावा दायर करने का प्रश्न है, चूँकि मेरा सायल बकाया धनराशि मुo 39100/- अदा करने को तैयार है जिससे उक्त वाद विधि विधान के प्रति कूल होता और मजबूरन मेरे सायल को उक्त वाद का प्रतिवाद करना पड़ेगा जिसके हर्जे खर्चे का मालिक आपका सायल होगा I"

26. From the above, it is apparent that defendant has admitted a sum of Rs. 39,100/- to be due towards rent. So far as deposit under Order 15 Rule 5 C.P.C. is concerned, a sum of Rs. 2,750/- has been deposited. Monthly rent @ Rs. 330/- per month from January 2006 to August 2006, Rs. 2,640/- with nine per cent interest up to seven months (Rs. 138.60) total amount comes to Rs 2778.6 rounded off to Rs. 2780/-. This deposit was made by means of application dated 28/08/2006 [26 (Ga) (2)] and does not meet the requirement of Section 20 (4) of U.P. Act no. 13 of 1972, which is being reproduced below:-

"(4) In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or [tenders to the landlord or deposits in Court] the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground:

Provided that nothing in this sub-section, shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area."

27. As such, defendant's eviction is not saved by the deposit made under Order 15 Rule 5 C.P.C.

28. Trial court has discussed the oral evidence. Defendant has not entered the witness box. On the one hand, defendant in written statement says that he made payment but on the other hand, D.W. 1-Manager of the defendant says that he made payment of rent to Sri Hari Om. Other two are chance witnesses. Deposit of Rs. 660/- and Rs. 1,000/- allegedly made on different dates to Sri Hari Om is sought to be proved by two persons who are not connected or related with the parties or suit. They do not mention dates. One of them deposes for a payment made before him seventeen years ago. Both the witnesses are wholly unreliable and have been rightly disbelieved. This evidence fails to establish that rent was regularly paid. Plaintiff had produced certain receipts which further belies the claim that receipts were not issued by the landlord. In any case, in the face of admission of outstanding amount of Rs. 39,100/- towards rent and same having not been paid or deposited under Section 20 (4) of the Act, relief to tenant has been rightly refused by the trial court. Trial court has also committed no error in granting relief of eviction as tenant's successor in interest have denied the title of plaintiff by setting up title in third person.

29. It has been vehemently alleged by Sri Zainul Aabdin, learned counsel that plaintiffs have not proved the plaint and that affidavit was not filed.

30. Notice was issued on behalf of Sameer Om and Hari Om both the plaintiffs. It is stated therein that shop in dispute has come to the share of Sameer Om. Plaint has been verified by Sameer Om. Moreover, Sameer Om has filed his affidavit on 10/02/2006, duly verified by Oath Commissioner-Shrawan Kumar. Therefore, it is not correct to submit that plaint was not verified or affidavit was not filed in support of plaint.

31. Next submission of Sri Zainul Aabdin, learned counsel is that Sri Sameer Om did not enter the witness box as such, suit could not be decreed. Sri Hari Om, one of the plaintiff has been examined as P.W.-1 in support of plaint case.

32. It is thus apparent that one of the plaintiffs has entered the witness box to prove the plaint case and in the Examination-in-Chief it is stated that shop was let out to Sri Abid Hussain by him but under the family settlement, this shop has come to the share of Sameer Om-his son, who is recorded as owner in the municipal records. In these circumstances, it cannot be said that plaint was not proved. Non-examination of plaintiff is not fatal in a suit for eviction if plaint allegations have been proved.

33. Reference in this regard may be made to following decisions:-

34. In the case of Union of India and Anr. vs. Sri Sudershan Lal Talwar [2002 (20) LCD 891], this Court has held in paragraph 21 as under:-

"21. There is no law requiring the plaintiff to come in the witness box. The facts can be proved by any person who had knowledge of those facts, apart from this no question of fact was involved in the case. Therefore, it was not at all necessary for the plaintiff to enter into the witness box. All these arguments of the learned counsel are baseless and misconceived."

35. Similarly, Hon'ble Prafulla C. Pant, J. in the case of Atiqur Rehman vs. Smt. Shashi Bala Jain [2006(1) ARC 875] has held in para 8 that 'mere non-examination of plaintiff himself does not disentitle him of the relief'. Para 8 of the judgment is being reproduced below:-

"8. It is further argued by learned counsel for the revisionist that the landlady Shashi Bala did not dare to come in the witness box, as such, the oral evidence recorded on behalf of the plaintiff should not have been believed by the trial Court. In view of the principle of law laid down in Pandurang vs. Ramchandra reported in AIR 1981 SC 2235, mere non-examination of plaintiff himself does not disentitle him of the relief, if the fact is otherwise proved on the record. Relationship of landlord and tenant is not denied in the present case. Not only this, the witness PW-1, a servant of the plaintiff has made statement on behalf of the plaintiff on his personal knowledge, as such, the trial court has not committed any error of law in believing the same".

36. Therefore, submission of learned counsel for the revisionist that Sri Samir Om did not appear in the witness box is of no consequence as one of the plaintiff-Hari Om has appeared in the witness box.

37. Sri Zainul Aabdin has cited four decisions in support of his contention. In the case of Manikkam Pillai vs. Rathnasami Nadar and Ors. [AIR 1919 Madras 1186], it has been held by Hon'ble Madras High Court that notice under Section 106 of Transfer of Property Act 1882 is to be given by the lessor or by an authorized agent on his behalf and Section 109 of Transfer of Property Act 1882 enables transferee of any part of lesser's interest in the property to exercise all the rights of lessor. Relevant part is being reproduced herein below:-

".........It is true Section 106 of that Act contemplates that the notice is to be given by the lessor or by an authorized agent on his behalf. That no doubt is the primary rule. But Section 109 enacts that the transferee of any part of a lessor's interest in the property is entitled to all the rights of the lessor as to the property or part transferred."

38. Next case is that of Ramakrishna Kuhkilaya vs. Nekkar Kuppanna and Ors. [AIR 1919 Madras 1188], in which it has been held that it was not necessary for the landlord to inform the tenant about the assignment.

39. Another case cited is that of Prabhu Ram vs. Tek Chand [AIR 1919 Lahore 31]. Relevant part of the judgment is being reproduced below:-

"........I hold therefore that the plaintiff was entitled to serve the defendants with a notice to quit the house, and that it was not necessary for the landlord to inform the defendants that he had leased the house to the plaintiff."

40. Further, in the case of Mahomed Hussain and Anr. vs. Mahomed Usman and ors. [AIR 1919 Lahore 32]. Question involved pertained to Order 41 Rule 19 C.P.C.

41. Last case referred by Sri Zainul Aabdin is Jokhan Ram vs. Aftab Ahmad [Allahabad Rent Cases, 1982] in Second Appeal No. 145 of 1974 (decided on August 20, 1981). Reliance has been placed on para 4 of the judgment, which is being quoted hereunder :-

"The notice mentions that it was given under the instructions of the plaintiff. In the circumstances, it cannot be held by any person with reasonable prudence that the notice was not issued under the authority of the plaintiff. The plaintiff accepted the giving of instructions through his son and the son proved the giving of notice through the counsel and that the notice was signed by the counsel. In the circumstances the notice was issued under proper instruction and not without instruction of the plaintiff."

42. These decisions do not help the revisionist at all. Both father and son had given the notice and both had filed suit. Son had not only verified the plaint but also filed affidavit. Father had also entered the witness box and proved the plaint case. Consequently, none of the decisions cited above are applicable to the facts of the case. No other point was canvassed.

43. In view of the above discussion, this Court does not find any error in the findings recorded by trial court that tenant was defaulter and had failed to pay the rent despite notice. His tenancy has to be terminated on both the grounds - default as well as denial of title. Consequently, decree of eviction and arrears of rent has been rightly passed and no interference is called from this Court.

44. Revision is liable to be dismissed.

45. Before parting, it is necessary to mention certain developments of the case.

46. This revision was filed as defective on 09.02.2012. Defects were removed on 16.03.2012. Then on 20.03.2012, it was ordered to be placed on 22.03.2012, but was taken up on 23.03.2012 by Hon'ble Shabihul Hasnain, J., who passed a conditional interim order on the undertaking given by learned counsel for the revisionist that revisionist would pay decreetal amount and rent in the first week of April 2012 and continue to pay the monthly rent by 7th of every month. Revision was not admitted. On 28.01.2013, revisionist was not present. Consequently, matter was posted for 11.02.2013. On 18.02.2013, it was adjourned on the illness slip sent by Sri Zainul Aabdin, counsel for the revisionist. On the same ground, case was also adjourned on 28.02.2013 with the Court's observation that no illness slip will be entertained on the next date. It appears that case was dismissed for want of prosecution on 16.09.2013 by Hon'ble Ritu Raj Awasthi, J. observing that neither revisionist had complied with the order of depositing the rent nor he was present to press the revision. Consequently, revision was dismissed in default. This order was recalled on 11.10.2013. On 06.11.2013, Hon'ble Ritu Raj Awasthi, J directed the revisionist to file affidavit regarding the actual decreetal amount and the amount deposited in this regard by the revisionists. On 05.12.2013, record was ordered to be summoned enabling revisionist to make good the deficiency. Matter was listed on 25.03.2014, on which dated Sri Zainul Abdin got his case adjourned. Matter continued on the list till 03.07.2014 on which date again it was adjourned on the illness slip sent by counsel for the revisionist. Matter came up on 10.07.2014 but it was adjourned for two months as cases of revisionists' counsel were adjourned. On 03.09.2014, adjournment was sought on the ground that counsel for the revisionists was out of station. On this request, case was ordered to be listed on 11.09.2014. On 11.09.2014, revisionist prayed for adjournment and case was ordered to come up on 25.09.2014. On 25.09.2014, revisionists' counsel sent illness slip. On 13.10.2014, request of adjournment was made and then on 28.10.2014, Hon'ble Anil Kumar, J. directed the case to be listed before another Bench. Hon'ble Senior Judge nominated Hon'ble Devendra Kumar Upadhyaya but due to change of roster, case was listed before Hon'ble Aditya Nath Mittal, J. on 26.05.2015, on which date there was illness slip and case was adjourned. On 16.07.2015, case was ordered to be listed peremptorily as repeated illness slips were sent. On 24.07.2015, revisionist-Mohammad Ibrahim Abid sought settlement through mediation, but Sri Bireshwar Nath, learned counsel for the landlord declined on the ground that revisionist had harassed the landlord by initiating number of civil and criminal proceedings against the plaintiff, a Senior Advocate of Rae Bareli. Thereafter, revisionists were asked to address the Court on merit as he was appearing in person and no lawyer was appearing. On 27.07.2015, revisionist questioned the authority of this Court for hearing the matter as according to him, Hon'ble Devendra Kumar Upadhyaya, J. was nominated. Joint Registrar (Listing) was summoned to explain. She informed that in view of the order of Hon'ble Chief Justice with the change of roster, nomination ceased to operate and case went before Hon'ble A.N. Mittal, J and then to this Court. Thereafter, Mohammad Ibrahim Abid was asked to argue the case but he sought adjournment. Case was taken up on 28.07.2015 but he refused to argue thereafter, judgment was reserved. However, tenant was given a week's time to file written statement. He filed written submissions but this time appeared along with counsel Sri Zainul Aabdin who sought persmission to argue which was granted. Sri Zainul Aabdin argued at length for days whereafter judgment was reserved.

47. Original defendant was a lawyer. His son-revisionist no. 1 appearing in person is also a lawyer. Shop is being used for running medical shop.

48. Repeated illness slips and adjournments by revisionists are manifest from order sheet. One of the Judge of this Court Hon'ble Anil Kumar, J. had ordered this case to be placed before some other Bench.

49. Revisionist-tenant urged that landlord is Senior Advocate and owns much property, as such, sympathetic view may be taken towards him. Sri Bireshwar Nath, learned counsel for the respondent brought to the notice of this Court the conduct of the revisionist who has employed all possible tricks to delay the matter and even to make application against the Presiding Officer as is apparent from the order passed by trial court dated 22/11/2011. Nearly, 130 dates were fixed and Small Cause Suit which ought to have been decided in few months, has taken seven years for final disposal. This can't be allowed to go on for long. In the pleadings, most intemperate and offensive language was used by the defendant. Use of such language in pleadings was not expected from defendant, who was also a lawyer. Court takes serious exception to this mode. Order sheet of the Court reveals that allegations were made against Presiding Officer. They have expressed their helplessness yet granted adjournment after adjournment. Even after defence evidence was over, third party appeared claiming title. Nobody should take courts for a ride and court cannot remain moot spectator to abuse of process of court. This is a case which shows all possible tactics a tenant/defendant can use. Court does not approve this conduct. Even in this Court, sometime revisionist no. 1 appeared in person and sometimes his counsel Sri Zainul Aabdin.

50. Everybody has a right to hold property and augment income through lawful means. If plaintiff no. 2 is a successful lawyer, how can defendant feel aggrieved. Landlord has a right to pick up the tenant seeking his eviction under law. No exception can be taken to this approach. Tenant cannot be heard to plead that he alone is being sought to be evicted that too, on the ground of default. Conduct of revisionist in trial court as well in this Court calls for imposition of exemplary costs. Court will be failing in its duty if in order to retain and sustain faith of people in judicial system, exemplary cost is not imposed.

51. With these observations, revision is dismissed with cost of Rs. 1,00,000/-. Tenant-revisionist is directed to vacate the premises within three months from today and hand-over the vacant possession to plaintiff-landlord.

52. Record be sent back forthwith.

Order Date :- 28.9.15

Nitesh