Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Writ-conditional Stay Of Eviction-damages Awarded At Enhanced Rate-direction For Deposit-no Modification Required.
JUDGEMENT TITLE : Gulshan Kumar Shondhi Vs. S.M. College Chandausi. On 23/03/2006 By Allahabad High Court
CASE NO : WRIT - A NO. 52186 OF 2002
CORAM : Hon'ble Satya Poot Mehrotra,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 48

Civil Misc. Writ Petition No. 52186 Of 2002

Gulshan Kumar Shondhi.................... Petitioner

Vs.

S.M. College, Chandausi, Moradabad...................... Respondent

Hon. S.P. Mehrotra, J.

1. Civil Misc. Application No.1432 Of 2003
2. Civil Misc. Application No. 13612 Of 2003

By The Order Dated 9.12.2002 Passed On The Writ Petition, Notice Was Directed To Be Issued Pending Admission. Further, Eviction Of The Petitioner From The Disputed Shop Was Also Stayed Subject To Certain Conditions.

The Said Order Dated 9.12.2002 Is Reproduced Below:

"Issue Notice Pending Admission.
Notice Will Be Issued To Respondent Fixing A Date In The Week Commencing 20th Jan. 2003.
List This Case In The Week Commencing 20th Jan. 2003.
Heard On The Question Of Grant Of Interim Relief.
Having Considered The Facts And Circumstances Of The Case And The Submissions Made By The Learned Counsel For The Petitioner, It Is Directed That The Petitioner Will Not Be Evicted From The Disputed Shop Till 28th Feb. 2003 Provided The Petitioner Deposits The Entire Decretal Amount With Rent/damages Upto December, 2002 At The Decreed Rate Within One Month From Today And Further Continues To Deposit Rent/damages At The Rate Of Rs. 60/- Per Month With Effect From Jan. 2003 By 7th Of Each Succeeding Month.
The Amount, If Any, Already Deposited By The Petitioner Will Be Adjusted. The Amount So Deposited By The Petitioner May Be Withdrawn By The Respondent Without Furnishing Any Security. In The Event Of Default On The Part Of The Petitioner In Complying With Any Of The Aforesaid Conditions, The Interim Order Will Stand Automatically Vacated."

The Aforementioned Civil Misc. Application No. 1432 Of 2003 (shown At Sl.No. 1 Above) Was, Thereafter, Filed On Behalf Of The Petitioner, Interalia, Praying That The Aforesaid Interim Order Dated 9.12.2002 Be Modified, And The Petitioner Be Permitted To Deposit Rent/damages At The Rate Of Rs.60/- Per Month Being The Admitted Rate Of Rent Instead Of That Awarded By The Trial Court.

An Affidavit, Sworn On 2.1.2003, Was Filed In Support Of The Said Application (shown At Sl.No. 1 Above).

It Is, Interalia, Stated In The Said Affidavit That A Perusal Of The Plaint Shows That The Admitted Rate Of Rent Was Rs. 60/- Per Month; And That, However, The Trial Court While Decreeing The Suit Had Awarded Damages @ Rs. 1,000/- Per Month Since March, 1994 Till The Date Of Judgment, I.e., 30.5.1998, And Thereafter @ Rs. 1,200/- Per Month.

It Is, Interalia, Further Stated In The Said Affidavit That The Petitioner Is A Very Poor Man And His Elder Son Died Of Cancer; And That In The Treatment Of His Elder Son, The Petitioner Had Spent The Earnings Of His Entire Life; And That The Petitioner Is Doing Printing Work On An Old Machine From The Disputed Shop Wherefrom He Is Hardly Able To Earn Rs. Three-four Thousand Per Month; And That The Two Remaining Sons Of The Petitioner, Both Of Whom Are Married And Have Their Own Children, Are Also Totally Dependent For Their Livelihood From The Income From The Printing Business Being Carried Out From The Disputed Shop; And That In Such Circumstances, The Petitioner Is Unable To Deposit The Damages @ Rs. 1,000/- Per Month From March, 1994 To 30.5.1998 And Thereafter @ Rs. 1,200/- Per Month.

It Appears That By The Order Dated 6.1.2003, The Aforementioned Civil Misc. Application No. 1432 Of 2003 (shown At Sl.No. 1 Above) Was Directed To Be Listed With Previous Papers On 13.1.2003.

It Further Appears That While The Aforementioned Civil Misc. Application No. 1432 Of 2003 (shown At Sl.No. 1 Above) Was Pending, Another Application Being Civil Misc. Application No. 13612 Of 2003 (shown At Sl.No. 2 Above) Was Filed On Behalf Of The Petitioner On 24.1.2003.

The Said Application (shown At Sl.No. 2 Above) Was Accompanied By An Affidavit, Sworn On 23.1.2003.

It Was, Interalia, Stated In The Said Affidavit That The Aforementioned Civil Misc. Application No. 1432 Of 2003 (shown At Sl.No. 1 Above) Could Not Be Heard On 13.1.2003 On Account Of Lawyers' Strike; And That In The Meantime, The Executing Court In Execution Case No. 18 Of 1998 By Its Order Dated 20.1.2003 Had Issued Writ Of Possession, And The Petitioner Was Under Imminent Threat Of Dispossession.

Having Regard To The Averments Made In The Aforementioned Application (shown At Sl.No. 2 Above) And Its Accompanying Affidavit, The Court Passed The Following Interim Order Dated 24.1.2003:

"Sri M.K. Gupta, Learned Counsel For The Petitioner-applicant And Sri J.P.N. Singh Holding Brief Of Sri P.S. Baghel, Learned Counsel For The Respondent Are Present.
Sri Gupta, Learned Counsel For The Petitioner-applicant Submits That He Has Filed An Application On 3rd Jan. 03 For Modification Of The Order Dated 9-12-2002 Passed In The Aforesaid Writ Petition.
He Further Submits That The Execution Court Is Proceeding To Execute The Decree On The Ground That The Conditions Incorporated In The Order Dated 9-12-2002 Passed In The Said Writ Petition Have Not Bee Complied With By The Petitioner.
Sri J.P.N. Singh Holding Brief Of Sri P.S. Baghel, Learned Counsel For The Respondent States That Sri P.S. Baghel Is Out Of Station Today And As Such, The Matter May Be Taken Up On 27th Jan. 2003.
In View Of The Aforesaid Circumstances, It Is Directed The Execution Court Will Not Proceed To Execute The Decree Till 28th Jan. 2003. This Application As Well As The Application For Modification Filed On Behalf Of The Petitioner Will Be Put Up On 27th Jan. 2003, Alongwith The Record Of The Case.
A Certified Copy Of This Order Shall Be Given To The Learned Counsel For The Parties On Payment Of Usual Charges Today."

It Further Appears That The Said Interim Order Dated 24.1.2003 Was Extended From Time To Time.

In The Meantime, Counter Affidavit, Sworn On 23.2.2003, Was Filed On Behalf Of The Respondent In Respect Of The Aforementioned Application (shown At Sl.No. 1 Above).

Rejoinder Affidavit, Sworn On 28.2.2003, Was Filed On Behalf Of The Petitioner In Reply To The Said Counter Affidavit.

Further, Supplementary Affidavit, Sworn On 8.1.2006, Has Been Filed On Behalf Of The Petitioner.

Supplementary Counter Affidavit, Sworn On 15.1.2006, Has Been Filed On Behalf Of The Respondent In Reply To The Aforesaid Supplementary Affidavit.

Shri M.M. Jain Holding Brief For Shri M.K. Gupta, Learned Counsel For The Petitioner States That He Does Not Propose To File Any Supplementary Rejoinder Affidavit In Reply To The Said Supplementary Counter Affidavit.

I Have Heard Shri M.M. Jain Holding Brief For Shri M.K. Gupta, Learned Counsel For The Petitioner And Shri Santosh Kumar Singh Holding Brief For Shri P.S. Baghel, Learned Counsel For The Respondent At Length, And Perused The Record.

From A Perusal Of The Said Interim Order Dated 9.12.2002, It Is Evident That Eviction Of The Petitioner From The Disputed Shop Has Been Stayed Subject To The Following Conditions:

1. "The Petitioner Deposits The Entire Decretal Amount With Rent/damages Upto December, 2002 At The Decreed Rate Within One Month From Today".
2. The Petitioner "further Continues To Deposit Rent/damages At The Rate Of Rs. 60/- Per Month With Effect From January, 2003 By 7th Of Each Succeeding Month".

It Is, Interalia, Further Observed In The Said Interim Order Dated 9.12.2002 That "the Amount, If Any, Already Deposited By The Petitioner Will Be Adjusted".

From A Perusal Of The Averments Made In The Aforementioned Application (shown At Sl.No. 1 Above) And Its Accompanying Affidavit, It Is Apparent That The Petitioner Seeks Modification Of Condition No.1, Shown Above, To The Effect That The Petitioner May Be Permitted To Deposit Rent/damages @ Rs. 60/- Per Month Even In Respect Of The Decretal Amount Including Rent/damages For The Period Upto December, 2002.

It Appears That The Respondent Filed A Suit Being SCC Suit No. 11 Of 1994 Against The Petitioner For Eviction, Arrears Of Rent, Damages, Etc..

The Trial Court (Judge, Small Causes Court, Chandausi, Moradabad) By Its Judgment And Order Dated 30.5.1998 Decreed The Said Suit For Eviction Of The Petitioner From The Disputed Shop. The Trial Court Further, Passed A Decree For Damages @ Rs. 1,000/- With Effect From 21.3.1994 Till The Date Of Judgment (i.e., 30.5.1998), And Thereafter, @ Rs. 1,200/- Per Month Till The Date Of Delivery Of Possession By The Petitioner To The Respondent.

Against The Said Judgment And Order Dated 30.5.1998, The Petitioner Filed Revision Under Section 25 Of The Provincial Small Cause Courts Act, 1887, Which Was Registered As SCC Revision No. 40 Of 1998.

By The Judgment And Order Dated 22.11.2002 Passed By The Learned Additional District Judge, Chandausi, Moradabad (Revisional Court), The Said SCC Revision No. 40 Of 1998 Was Dismissed, And The Judgment And Decree Dated 30.5.1998, Passed By The Trial Court In SCC Suit No. 11 Of 1994, Was Confirmed.

Thereafter, The Petitioner Has Filed The Present Writ Petition Wherein The Said Interim Order Dated 9.12.2002 Has Been Passed.

Having Regard To The Facts And Circumstances Of The Case And Having Considered The Submissions Made By The Learned Counsel For The Parties, I Do Not Find Any Sufficient Reason For Modifying The Said Interim Order Dated 9.12.2002.

Prima-facie, There Is Decree Of The Trial Court Awarding Damages At The Rates Mentioned Above, And The Same Has Been Confirmed By The Revisional Court.

The Question As To Whether There Is Any Illegality In Awarding Damages At The Aforesaid Rates Relates To The Merit Of The Case, And The Same Will Be Gone Into At The Stage Of Final Disposal Of The Writ Petition. There Is No Occasion To Examine The Said Question At This Stage.

It Is Further Noteworthy That On The Aforementioned Application (shown At Sl.No. 2 Above), An Interim Order Dated 24.1.2003 Was Passed Whereby The Execution Court Was Restrained From Proceeding With The Execution Of The Decree.

The Said Interim Order Dated 24.1.2003 Has Remained In Operation Since Then. Therefore, In Case, The Petitioner Was Facing Any Financial Problem In January, 2003, The Same Loses Its Significance Now After A Lapse Of More Than 3 Years.

In Any Case, The Facts And Circumstances Mentioned In The Above Affidavit Accompanying The Aforementioned Application (shown At Sl. No. 1 Above) Are Not Sufficient For Modifying The Said Interim Order Dated 9.12.2002 Passed In The Writ Petition.

However, In View Of The Facts And Circumstances, It Will Be In The Interest Of Justice To Grant Reasonable Time To The Petitioner For Complying With Condition No.1, Mentioned Above, As Contained In The Said Interim Order Dated 9.12.2002.

It May Be Mentioned That As Per The Averments Made In Paragraph 8 Of The Aforesaid Supplementary Counter Affidavit, Sworn On 15.1.2006, Filed On Behalf Of The Respondent, The Petitioner Is Complying With Condition No.2, Mentioned Above, As Contained In The Said Interim Order Dated 9.12.2002.

In View Of The Above, The Prayer For Modification Of The Said Interim Order Dated 9.12.2002 Made In The Aforementioned Civil Misc. Application No. 1432 Of 2003 (shown At Sl.No. 1 Above) Is Liable To Be Rejected.

In View Of The Rejection Of The Prayer Made In The Aforementioned Application (shown At Sl.No.1 Above), The Interim Order Dated 24.1.2003 Passed On The Aforementioned Civil Misc. Application No. 13612 Of 2003 (shown At Sl.No. 2 Above) Is Also Liable To Be Vacated.

However, As Noted Above, Even Though There Is No Occasion For Modifying Condition No.1, Mentioned Above, As Contained In The Said Interim Order Dated 9.12.2002, It Is In The Interest Of Justice That Reasonable Time Be Granted To The Petitioner For Complying With The Said Condition No.1.

Accordingly, The Following Directions Are Given:

(A) The Petitioner Is Granted Time Upto 31.8.2006 For Complying With Condition No.1, Mentioned Above, As Contained In The Said Interim Order Dated 9.12.2002, Namely, Regarding Deposit Of The Entire Decretal Amount With Rent/damages Upto December, 2002 At The Decreed Rate.

(B) In Case, The Petitioner Makes The Said Deposit, Mentioned In (A) Above, By 31.8.2006 And Further Continues To Make Deposits As Per Condition No.2, Mentioned Above, As Contained In The Said Interim Order Dated 9.12.2002, The Petitioner Will Not Be Evicted From The Disputed Shop Until Further Orders Of The Court.

(C) As Regards Rest Of The Terms, Conditions And Directions, As Contained In The Said Interim Order Dated 9.12.2002, The Same Will Continue To Remain In Operation.

(D) Subject To The Directions Contained In (A), (B) And (C) Above, Civil Misc. Application No.1432 Of 2003 (shown At Sl.No. 1 Above) Is Dismissed.

(E) Further, Subject To The Directions Contained In (A), (B), (C) And (D) Above, The Interim Order Dated 24.1.2003 Passed On The Aforementioned Civil Misc. Application No. 13612 Of 2003 (shown At Sl. No.2 Above) Is Vacated.

As The Counter Affidavit And Rejoinder Affidavit Have Already Been Exchanged In The Main Writ Petition, The Case Will Now Be Listed For Admission/ Final Disposal Before The Appropriate Bench. The Case Will Not Be Treated As Tied-up With Me.

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