Girish Kumar Mehra vs K.K. Sharma <BR> K.K. Sharma Vs Girish Kumar

Bhawani Singh, J.—These cases-Civil Revision No. 110 of 1982 (Girish Kumar Mehra v. K.K. Sharma) and Civil Revision No. 61 of 1987 (K.K. Sharma v. Girish Awmor)-arise between the same parties, though decided by Courts udder separate jurisdictions, namely, Himachal Pradesh Urban Rent Control Act, 1971 (Civil Revision No. 110 of 1982 and Civil Suit for recovery of arrears of lent by the Civil Court (Civil Revision No. 61 of 1987). It is, therefore, expedient to take up both of them to gather to decide on though discussed and final judgments rendered separately, to understand the whole gamut of easier between the parties contesting and clashing with each other for the last many years.

CIVIL REVISION NO. 110 of 1982:

The facts of this case, in brief, are that the Petitioner-landlord (to be hereinafter referred to as the Petitioner) filed a petition u/s 14 of the Himachal Pradesh Urban Rent Control Act, 1971 for the eviction of the tenant (to be referred hereinafter as the despondent) on various grounds, namely, that the tenant failed to pay arrears of rent amounting to Rs. 1400/- and that the Petitioner required the premises for his personal use and occupation and that the Respondent having been transferred to Banished, had still kept the premises locked. The Respondent in his reply filed on 7-6-80 stated that he had already vacated the disputed premises and handed over the possession of the same to the Petitioner after making the payment of the rent on his transfer from Paramour to Dalhousie; so prayed that the petition, in these circumstances, deserved dismissal.

The Rent Controller directed the presence of the Respondent in the court on 11-10-1980 for the purpose of his examination under order 10 Rule 2 of the CPC but due to the failure of the Respondent to appear in the court as well as in the absence of any application showing the cause for his absence, the Rent Controller proceeded to pass the order on 30-6-1980. It was held by the Rent Controller that the reply filed by the Respondent on 7-6-19C0 being conspicuously vague, misleading, ambiguous and dexterous whereby no date, month or ear of the vacation of the premises by him (Respondent was given although ambiguously admitted to have vacated the premises in dispute. Therefore, on this ambiguity, Rent Controller found the desirability of the examination of the Respondent under 10 Rule 2 of the Code of Civil Procedure, Finally the factor of haying left the place on transfer having been admitted by the Respondent by his impact admission, abetment from the premises, in dispute was ordered. Costs to the extent of Rs. 150/- were imposed on the Respondent.

The-Petitioner filed an appeal against this order before the Appellate Authority (District Judge Kangra). This appears was decided on 20-2-1982. The Appellate Authority upheld the contention of the Respondent that there was no necessity for his examination under Order 10 Rule 2 of the Code of CPC as they was no ambiguity in the case of the Respondent; rather after the reply filed by the Respondent, the only course open far tube Rent Controller as to call for the rejoinder from the Petitioner to admit or deny whether the Petitioner had received there stand possession of the premises. The most relevant part of this judgment, which has created further turmoil between the parties and, as under,:

The Id counsel for the lard has admitted before me that the arrears of rent were in fact paid by the tenant after filing of the petition and prior to the date on which the odder has been passed by the Rent Controller, it is unimaginable that the tenant who paid ail the arrears of rent and was transferred to Anklet had not handed over the possession of the premises in dispute. It appears that the landlord with a view to pressure the tenant to extract the costs of proceedings did not withdraw the present eviction petition.

Finally, the Appellate Authority hem that hr view of the Respondent''s specifically bringing it to the notice of the Court that he is no more in possession of the premises in dispute, the Rent Controller has no jurisdiction to pass the order of eviction against him and the landlord, who was already in possession of the premises, could not seek such an Order u/s 14 of. The Act; so the elaction order was set-aside. Through the present revision petition, the Petitioner assails this order.

Shit A.K. Goel, who appears for the Petitioner, has contended that the lower Appellate Court has wrongly based the decision on the statement of Shn Durga Chand Katoch, Advocate a junior of Shri Parkash Singh, A dovecote, who appeared vice Shri Parkash Singh, Adovcate. It is contended that the junior counsel was not authorized to appear or make an admission relating to the receipt of arrears of rent amounting to Rs. 1400/-. No power old attorney was ever executed in his favor and this admission was wrong in view if a separate decree for Rs. 3168.96 already passed by the Sub-judge vide order dated 28-7-1981, which included this amount of Rs. 1400/-as well. In nutshell, what Shri A. K. Goel intends to contend is that the Appellate Court''s judgment is the consequence of this admission and this admission having no authorization from the client or from the counsel appealing in the case, the judgment, therefore, deserves to be set-aside.

I am not at all impressed by these submissions. Perusal of the impugned order of the Appellate Court clearly indicates making of such an admission/statement by the counsel appearing vice Shri Parkash Singh, Advocate. Shri Durga Chand Katoch is stated to be working with Shri Parkash Singh and he may have appeared in this case as well as in many other cases of his senior on this day as it is in evidence that shri Parkash Singh, Advocate was out of station on this day. I do not at all appreciate the stand taken by Shri Parkash Singh qua his junior colleague who has actually appeared in this case on this date. Authorization on his behalf is implicit. He is stated to be working with him and appeared vice him (Shri Parkash Singh; on this date, perusal of the power of attorney filed by Shri Parkash Singh, Advocate, further authorizes him to appear through anyone else. Alternatively, reverting to the issue of statement, the Petitioner cannot be permitted to challenge the same in this Court. Filling of affidavits by the counsel neither impress me nor improve the case of the Petitioner. What actually transpired in the Appellate Court, no inquiry relating to an assessment thereof by this Court is possible. No immediate protest was raised by the Petitioner to the Appellate Court soon after the decision, except a challenge of the same in this Court. Such a situation is beyond the pale of controversy after the decision of the Supreme Court in State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, of which paras 4 to 7 may be quoted in extension;

When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the Respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submission made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation," (Per Lord Atkinson in Somasundaran v. Subramanian AIR 1926 PC 136). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive to the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buck master in Madhusudan v. Ghandrabati AIR 1917 PC 30). That is the only way to have the recode corrected. If no such step is taken, the matter must necessarily end there. Of course, a party ray resale and an Appellate Court may permit him in rare and appropriate cases to resale from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gloss injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.

4-A. In R.V. Mellor (1958) 7 CCC 454 Martin B was reported to have said: "We must consider the statement of the learned judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a recode of Court which of itself implies an absolute verity.

In The King Emperor Vs. Barendra Kumar Ghose, Page, J., said:

These proceedings emphasize the importance of Rigidly maintaining the rule that a statement by a learned Judge as to what took place during the course of trial before him is final and decisive ; it is not to be criticized or circumvented ; much less is it to be exposed to animate version.

In Sarat Chandra Maiti and Others Vs. Bibhabati Debi and Others, Sir Asutosh Mukberjee explained what had to be done "It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge without delay and ask for rectification or review of the judgment."

So the Judges'' record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else.

This judgment was further followed by a Division Bench of this Court consisting of Chief Justice Didar Singh Vs. State of Himachal Pradesh and Others, where, in a similar situation, the Appellant intended to liaise certain grounds which were actually left before the Single Judge and had contended that the so-called left out grounds were actually raised before the Single Judge and challenged the statement made in the judgement to the effect that although initially a challenge to the virus of the Recruitment Rules was leveled but the only ground which was urged at the hearing of the petition related to the non-con side ration of the claim of the Petitioner for promotion. In view of the situation, the Bench observed in Para 5 as under:

In view of the declaration of law in the aforesaid terns, the learned Counsel for the Appellant cannot be allowed to urge before us that what has been recorded in the judgment of the learned single Judge does not correctly reflect what transpired at the hearing before him and to attack the judgment on that ground or, on that basis, to advance any other ground s in support of the appeal.

I, therefore, reject this contention of the learned Counsel for the Petitioner.

The second aspect of the argument of Shri A.K. Goel relates to the non-appearance of the Respondent as required by the court of his examination. It is contended on this aspect that the Rent Controller was perfectly, justified in ordering his eviction on both the grounds set-up by the Petitioner. I am not convinced by this argument. It is in evidence that the Respondent stood transferred to Banished in November, 1979. In view of the decision on the first argument, the Respondent had already paid the arrears of rent, therefore, it cannot be imagined that even after transfer the Respondent would still lock the premises which are no longer required by him. The. Defense of vacation of these premises is further available from the fact that when in pursuance of the order of the court these premises were opened the same were found vacant and without any article inside. The submissions of the Respondent that the Petitioner-who did not otherwise have cordial relations with the Respondent locked the same, filed a suit for eviction and then not only obtained an order for possession but also a decree for arrears of rent against the Respondent who was akeadyaway from Paramour where these premises are located-appear to have substance.

Equally unimpressive is the submission of Shri A.K. Goel that it was in the absence of the Respondent''s tailing to appear in the court for examination under Order 10 Rule 2 to the Code of CPC that the Rent Controller proceeded to decide the case. As rightly held by the Appellate Court, there was no necessity, as a matter of fact, for calling for the Respondent for such an examination when he had already disputed the claim of the Petitioner and the only thing which the Rent Controller should have done was to call upon the Petitioner to file a rejoinder to the application- The findings of the Appellate Court on this aspect are quite justified and 1 confirm the same.

In view of the aforesaid discussion, the result is that there is no merit in this revision petition and the same is accordingly dismissed with Rs. 500/- as costs.

CIVIL REVISION NO 61 OF 1987:

This revision petition arises out of the judgment of Additional District Judge (I), Kangra,inCMA No. 41 of 1985 decided on December 30, 1986, whereby the Appellate Court dismissed the appeal of the Petitioner against the decision of Sub-Judge, 1st Class, Paramour, in CM A No. 8/83, decided on 20-7-1985; It relates to the filing oil an application under Order 9 Rule 13 filed by the Petitioner lord setting aside an ex parte decree for Rs. 3169.96 as arrears of rent from 1-5-79 to 16-7-80.

The facts, in brief, are that Shri K.K. Sharma (hereinafter to be referred to as the Petitioner) was employed in the State Bank of India at Paramour. Shri Ginsh Kumar (hereinafter to be referred to as the Respondent) was his landlord. They did not have cordial relations and it is alleged that in the month of April, 1979, the parties had gone even to Sub-Divisional Magistrate, Palampur, when the Respondent had forcibly excluded the Petitioner fiom use of certain part of the tenanted premises.

In November, 1979, the Petitioner was transferred to State Bank of India, Banikhet. On his transfer, the Petitioner and his entire family, consisting of his wife and children moved to Banikhet in Chamba District. He removed his children from the school in Palampur tnd all his belongings. He is stated to have no -nterest in Palampur as he is a permanent resident of Ambala, in the State of Haryana. Therefore, he had no object or purpose to keep a residential house at Paramour as well as another at the place of his posting thereby strain his financial position.

It is further submitted that the tenanted premises were handed over in November, 1979 to the Respondent-landlord. Since the relations between them were not cordial, the landlord filed an eviction petition against the Petitioner, got an ex prate order of eviction as well as an order tore breaking open the premises through the agency of the court. On opening, the premises were found absolutely empty because the Petitioner had already taken away his belongings and the vacant possession stood given to the landlord in November, 1979 and the premises were locked by the landlord there fatter. Immediately coming to know that an ex prate eviction order had been passed against him despite these circumstances and further being burdened with costs, the Petitioner filed an appeal against the evasion order and imposition of costs before the Appellate Authority. The Appellate Authority accepted the appeal, as already discussed above, and the Respondent also filed a revision petition against the same in this Court, as above. The Petitioner further states that in the grounds of revision petition (Civil) Revision No. 110 of 1982), there was no mention of obtaining an ex prate money decree for a sum of Rs. 3169.96/- on account of the use and occupation charges in respect of the house in question against the Petitioner. It was on receipt of the copy of this revision petition that he came to know about the ex prate money decree passed against him by Sub-Judge, Paramour. Therefore, he moved an application under Order 9 Rule 13 of the CPC before Sub-Judge, Paramour, alleging that the ex prate decree was liable to be set-aside in the absence old proper legal service upon the Petitioner. This application under Order 9 Rule 13 of the CPC was dismissed on July 20, 1985 and the appeal against the same met the same fate vide decision dated December 30, 1986 by Additional District Judge, Dharamshala. It is against this decision that the Petitioner approaches this Court and assails the same through his counsel Shri Rakeshwar Lai Sood.

The solitary argument of the learned Counsel appearing for the parties is relating to the issue of service on the Petitioner. While on the one hand, Shri Rakeshwar Lai Sood, appearing for the Petitioner, contends vehemently that no legal service was affected on his client, therefore, the ex prate decree deserves to be set aside and the case reopened for readmission by the Civil Court. On the other hand, Shri A.K. Goel, with his usual vehemence, assails this submission and contends that the ex prate decree is legally justified and has been rightly passed by the Sub-Judge and the application for setting-aside the same under Order 9 Rule 13 of the CPC was rightly dismissed by the Court and the decision of the first Appellate Court confirming this decision leaves nothing in favor of the Petitioner to set-aside the judgment of Additional District Judge, Kangra.

Perusal of the record shows that there is original copy of the summons (Ex. A. W. 1/A) received by the Petitioner on which there is no endorsement to the effect whether any copy of the plaint had been attached therewith for the Petitioner. In the absence of such an endorsement, and the statement of the Petitioner that he did not receive any such copy with the summons, Shri Rakeshwar Lai Sood, counsel appearing for the Petitioner, contends that there is no legal service of the court summons on the Petitioner and his absence from the court did not authorize the Sub-Judge to pass the decree. It is further contended that the Petitioner had specifically mentioned the factor of non-receipt of the copy of the plaint on the other copy of the summons on which endorsement to the Court had been made. This copy of the summons is not available on the record of the case. It is stated to have been destroyed as per the rules. The original copy of the summons (Ex. AW 1/A) has neither any endorsement number from the court of Senior Sub-Judge, Chamba, to whom it is sent for service, nor it discloses any annexure therewith of the copy of plaint for the Petitioner.

Shri A.K. Goel, learned Counsel appearing for the Respondent (decree-holder), submits that the Petitioner had received this copy of the summons well in advance and on the basis of the same the Petitioner should have appeared before the Court of Sub-Judge, 1st Class, Paramour, on 10-4-1981 at 10 a.m. Whether or not the copy of the plaint was sent, Shri A.K. Goel is not prepared to accept that no such copy was sent. It is further contended by Shri A.K. Goel that the averment of the Petitioner that he considered that this summons was considered to be a summons from the Court of Rent Controller, as alleged by the Petitioner, cannot be accepted because the name of the Court and the number of the case has been specifically mentioned in this summons and the application of the Petitioner at page 55 of the case file for the adjournment of this case is no defense because this application has neither been properly received by the court nor any decision passed thereon.

There is no force in these submissions of the learned Counsel. Order 5 Rule 2 mandatory envisages supply of the copy of the plaint along with the summons to the Defendant. If summons is not accompanied by a copy of the plaint, it is not a due service and the ex prate decree obtained upon such defective service cannot be considered to be legally justified.

In view of the non-availability of the copy of the summons (on which endorsement by the Petitioner is stated to have been made) and the statement of the Petitioner that he did not receive the copy of the plaint and protest to that effect was made on that copy of the summons, there is no reason to disbelieve this version of the Petitioner. The argument of Shri A.K. Goel that in the absence of plaint the Petitioner should have appeared the Court in pursuance of the summons which he received well in time, is not appeasable. As already held, in the absence of the copy of the plaint, there is no service in the eye of law and, therefore, the argument that the Petitioner should have appeared in pursuance of this summons is of no consequence.

Reference to the copy of the application submitted by the Petitioner for the adjournment, indicates that this application does not indicate any lack old bona fide on his part. It is addressed to Sub-Judge, 1st Class, and Paramour, who is also the Rent Controller at Paramour. The title of this application indicates that it refers to an execution application relating to the amount of costs the Rent Controller had imposed in Civil Revision Petition No. 110 of 1982 and refers to 30-6-1980 in the first Para of this application and the costs to the extent of Rs. 150/- further indicates that the Petitioner had the Rent Control case in mind and he had mistaken the summons Ex. AW 1/A and in pursuance of this summons that he was to appear in the court on 10-4-1981. This application is on the Court file. It was not for the Petitioner to take notice of it. The Sub- Judge should have taken notice of it and decided in favor or against the Petitioner. The fact remains that the Petitioner is genuinely under misapprehension as to the nature of the case.

The prayer of the Petitioner is t allow him to contests the case of the respondent on merits. The same relates to the recovery of the amount for the use and occupation of the premises in question. As already decided in Civil Revision No. 110 of 1982 above, no claim for the recovery of Rs. 1400/- is admissible. However, in term s of the prayer of the Petitioner, the judgments under appeal are set-aside and the prayer of the Petitioner under Order 9 Rule 13 of the CPC is allowed. The trail court will take up the suit at its original number from the date and stage it was dismissed and proceed with the matter in accordance with law. The observations made above relating to the period from November, 1979 onwards, is left open to be decided by the trail court and observations to the contrary on this aspect will not, in any way, harm the cause of the respondent and the parties are free to agitate, prove and seek judgment/order from the Court on this aspect of the matter

The revision is allowed to the aforesaid extent subject to payment of Rs. 500/- as costs by the Petitioner. The 3rd parties to appear before Sub-Judge, Palampur, on 28-6-1989.