Ramesh Chand Jain vs Arya Samaj, Nai Mandi

Rakesh Sharma, J.—Heard Sri Vishnu Sahai, learned Counsel for the Petitioner and Sri Ajay Kumar Singh representing the Respondent.

The Petitioner has assailed the judgment and order passed on 19.9.1997 in S.C.C. Suit No. 27 of 1990 and affirmed by the Addl. District Judge, Court No. 2, Muzaffar-nagar in S.C.C. Revision No. 32 of 2000 in respect of a tenanted betel shop situate at main market/Mandi area in the city of Muzaffarnagar in western U. P.

It emerges from the record that the Respondent Arya Samaj, Nai Mandi, Muzaffarnagar, landlord filed S.C.C. Suit No. 27 of 1990, Arya Samaj v. Ramesh Chand Jain, in the court of Judge, Small Causes for ejectment of the tenant from the disputed betel shop on the ground that the Petitioner had made material alteration in the rented shop. The suit was decreed ex parte on 19.9.1997. This order was challenged under Order IX, Rule 13, Code of CPC and under the provisions of Section 17 of Provincial Small Causes Court Act (briefly, the Act). The application for setting aside the ex parte decree was dismissed by the order dated 12.3.1999 with the finding that the Petitioner had not complied with the relevant provisions as indicated in Section 17 of the Act. A revision was preferred which was also dismissed by the revisional court on 22.9.1999 re-iterating the same views which were recorded by the trial court.

Against the above judgment, the Petitioner filed a Writ Petition No. 46082 of 1999, Ramesh Chand Jain v.I Ind Additional District Judge, Muzaffarnagar and others, in which an interim order was granted. However, as per directions contained in the interim order passed in that writ petition, the Petitioner had deposited the entire decretal amount and rent etc. However, the aforementioned Writ Petition No. 46028 of 1999 was dismissed on 21.4.2000. For convenience, the judgment and order passed in that writ petition by this Court is quoted below:

The Plaintiff-Respondent No. 3 filed Suit No. 27 of 1990 in the court of Judge, Small Causes for recovery of arrears of rent, ejectment and damages with the allegations that the Petitioner was tenant of the disputed shop at monthly rent of Rs. 50. He made material alterations. A notice dated 10.10.1990 was given to the Defendant which was served upon him on 17.10.1990 but inspite of service of notice he did not comply with the same. The tenant-Petitioner filed written statement and denied the averments made in the plaint. The Defendant subsequently did not appear in the case and the Court directed to proceed ex parte and decreed the suit on 19.9.1997. The Petitioner filed an application on 6.10.1997 to set aside the said decree with the allegation that on the date of hearing he was confined to bed and was unable to appear in the case. He did not file an application u/s 17 of the Provincial Small Causes Court Act (in short, the Act) for depositing any amount as provided in the said section. The Judge, Small Causes Court rejected the said application on 12.3.1999 on the ground that the Petitioner failed to comply with the provisions of Section 17 of the said Act. The Petitioner preferred a revision and the revision has been dismissed by the impugned order dated 22.9.1999.

I have heard Sri R. B. Singhal, learned Counsel for the Petitioner and Sri Pramod Kumar Jain, learned Counsel for the contesting Respondent.

Learned Counsel for the Petitioner contended that the provisions of Section 17 of the U. P. Provincial Small Causes Courts Act are directly in nature as the intention of the Legislature is that the decretal amount should either be paid or sufficient security in the compliance of the decree be given before any ex parte decree is set aside and the amount can be deposited at any stage. This submission should have been accepted provided the Petitioner had deposited the decretal amount before the Court passed the order on the application of the Petitioner to set aside the ex parte decree or even if he had filed an application asking the Court to permit him to furnish security. He has placed reliance upon the decision Khursheed v. 1st Additional District Judge, Moradabad and others 1988 AWC 1366, wherein the observation was made that the proviso of Section 17 of the Provincial Small Causes Courts Act using the ''previous'' application is not mandatory but only directory. This case has no application to the facts of the present case. The Petitioner therein had filed an application to set aside the ex parte decree on 10.12.1982 and made an application on 20.12.1982 under the proviso to Section 17 of the Act for permission to furnish security for performing the decree as required by Section 17 of the Act. It was not a case where the applicant had not taken steps under the proviso to Section 17 of the Act.

It is further contended that the Petitioner has deposited the decretal amount in pursuance to the order passed by this Court on 5.11.1999. The mere fact that the Petitioner has deposited the decretal amount in pursuance to the order of this Court will not make the order illegal passed by the courts below when the Petitioner had not complied with the requirement under the proviso to Section 17 of the Act before hearing the matter before the trial court.

In view of the above, the writ petition is dismissed.

In the end, learned Counsel for the Petitioner prayed that some time may be granted to the Petitioner to vacate the disputed premises. Considering the facts and circumstances of the case, the Petitioner is granted six months'' time to vacate the disputed premises provided he gives an undertaking on affidavit before the trial court within two weeks from today that he will vacate the disputed premises within the time granted by this Court and would hand over its peaceful possession to the landlord-Respondent No. 3.

Learned Counsel for the Petitioner submitted that he did not act in accordance with the above order. After obtaining legal advice, the Petitioner filed S.C.C. Revision No. 232 of 2000 alongwith an application u/s 5 of the Limitation Act. The application was allowed on 18.12.2000 and the revision was registered for adjudication. Against this order passed on 18.12.2000, the Respondent landlord filed Writ Petition No. 6133 of 2001 before this Court which according to the learned Counsel for the Petitioner is pending disposal. In the meantime, the revision filed by the Petitioner-tenant was dismissed vide order dated 16.2.2008 giving cause of action to the Petitioner to approach this Court by filing the present writ petition under Article 226 of the Constitution of India.

Learned Counsel for the Petitioner has assailed the order on various grounds. The Court has taken note of the prayer of the Petitioner that he may be allowed some time to vacate the disputed premises. This Court has been pleased to grant this relief for vacating the disputed premises provided he gives an undertaking on affidavit before the trial court within two weeks from the date of issuance of the judgment and order and that he will vacate the disputed premises within the abovesaid stipulated period.

Sri Vishnu Sahai, learned Counsel for the Petitioner on being asked by the Court whether such undertaking on affidavit was tendered before the trial court within two weeks to be counted from the date of judgment, that is, 21.4.2000 or not. Learned Counsel for the Petitioner has drawn the attention of the Court to para 13 of the writ petition and submitted that he did not furnish any undertaking before the trial court as directed by the Hon''ble Court. For convenience, the submissions made in para 13 of the writ petition are reproduced below:

That it may be stated that since the Petitioner was advised that the order of the trial court dated 19.9.1997 decreeing the suit ex parte was absolutely illegal, the Petitioner should file a revision u/s 25 of the Provincial Small Causes Court Act challenging the order dated 19.9.1997 on merits. The Petitioner in view of the said advice did not furnish any undertaking before the trial court as directed by this Hon''ble Court and therefore the order granting six months time to vacate the disputed premises never came into effect.

In addition to this, learned Counsel for the Petitioner has submitted that even if undertaking was not given before the Court, the Petitioner could not be deprived to avail the right to contest the case, enforcement of such right as conferred by the statute upon him. He has also placed reliance on a case in Bhanu Kumar Jain Vs. Archana Kumar and Another, and has highlighted paras 31, 32 and 33 contained in the said judgment to derive strength. He has tried to persuade the Court that the landlord-Respondent''s Writ Petition No. 6133 of 2001 is still pending disposal. The order passed by the revisional court is wholly illegal, unjust and improper. The revisional court has excluded from consideration various legal submissions put forth by the Petitioner containing the issues raised were not dealt with.

Sri Ajay Kumar Singh has resisted the writ petition. He has submitted that the Petitioner despite being Petitioner in the Writ Petition No. 46082 of 1999 which was finally decided on 21.4.2000 has not complied with the directions contained in the said judgment. Moreover he has not complied with the provisions contained in Section 17 of the Act and the procedure contained therein. The Petitioner till date has not given any undertaking nor vacated the disputed shop. He is still occupying the shop and deliberately defying the orders of the Court as if the judgment and order dated 21.4.2000, passed by the High Court was not binding on him.

I have heard learned Counsel for the parties at length and perused the judgment and materials on record. The revisional court has taken into account the judgment and order dated 21.4.2000, passed by this Court in the Writ Petition No. 46082 of 1999 filed by the same Petitioner. The operative portion containing the observations and directions given by the Court are specific and clear. It was expected from the Petitioner tenant, that is, Ramesh Chand Jain to vacate the disputed premises within six months. In furtherance of this direction (not otherwise), the Petitioner was further directed that he should file an undertaking on affidavit before the trial court within two weeks from the date of the judgment and order, that is, 21.4.2000 that he would vacate the disputed premises within the stipulated period of six months as directed by the Court. He would also hand over the peaceful possession of the disputed premises to the landlord, i.e., Respondent No. 3 (only Respondent in the present case). The directions are specific, clear and simple and no other interpretation could be drawn except to appreciate the purport, spirit of the order passed by this Court. It was made clear on the prayer of Petitioner himself that the tenant would vacate the disputed premises within six months. Now about eight years have passed, but the order has not been complied with. The revisional court has dealt the matter as follows:

other language

A perusal of the judgment and order reveals that the learned revisional court has placed reliance on the judgment of Hon''ble Supreme Court as in 1993 (1) ARC 1 and Bhanu Kumar Jain Vs. Archana Kumar and Another,

It is admitted to the parties that against the judgment and order dated 21.4.2000, no appeal was preferred in the Hon''ble Supreme Court and this judgment and order is still in vogue, operative and binding on the contesting parties, that is, Ramesh Chand Jain, the Petitioner herein and the Arya Samaj, the Respondent. This Court has already dealt with the similar facts, situation, issues brought before it for adjudication in W.P. No. 46082 of 1999. After dealing with the issues on the prayer made by the Petitioner-tenant, the above order was recorded which ought to have been respected and complied with by the Petitioner herein. The law is settled that any order, observation and directions contained in the judgment and order if the same remained unchallenged have to be complied with in its true spirit. I find no illegality or infirmity in the impugned order. The Court has rightly relied that and insisted upon the compliance of this Court''s directions contained in the judgment and order dated 21.4.2000 be made. I find no illegality or error in the impugned order. In the special circumstance of the case, this Court has noted that the Petitioner has not complied with the directions contained in the judgment and order passed by this Court on 21.4.2000. Neither he has given any undertaking on affidavit before the trial court nor he has vacated the premises in dispute. The Court itself is taking notice that the Petitioner Ramesh Chand Jain has deliberately committed contempt of the Court. However, he has kept on carrying on this litigation which was simply a landlord and tenant dispute despite its final adjudication by this Court on 21.4.1980. The matter has unnecessarily lingered on for such a long time. The Petitioner has unnecessarily dragged Arya Samaj, Aligarh Respondent in the litigation. It has been held by Hon''ble Supreme Court in the cases in All Bengal Excise Licensees Association Vs. Raghabendra Singh and Others, and All India Reporter Karamchari Sangh and Others Vs. All India Reporter Limited and Others, that "the decisions of the Supreme Court, which is a court of record, constitute a source of law as they are the judicial precedents of the highest Court of the land. They are binding on all the Courts throughout India. Similarly, the decisions of every High Court being judicial precedents are binding on all Courts situated in the territory over which the High Court exercises jurisdiction. Those decisions also carry persuasive value before Courts which are not situated within its territory. The decisions of the Supreme Court and of the High Courts are almost as important as statutes, rules and regulations passed by the competent Legislatures and other bodies since they affect the public generally. The decisions of the superior Courts while they settle the disputes between the parties to the proceedings in which they are given they are the sources of law insofar as all others are concerned. In the case of P.N. Srivastava Vs. State of U.P. and others, this Court has relied upon various decisions of Hon''ble Supreme Court, in the case of Major Radha Krishan Vs. Union of India and Others, in which it was observed that the direction issued by the High Court or Supreme Court in its decision carry equal importance as that of a Statute or Rules and since the directions required to be complied with and disobedience amounts to contempt, as such the decision of the Court partakes the position of statutory rule.

Following the above principles of law, this Court is awarding Rs. 25,000 as costs against the Petitioner. The costs shall be paid to the Respondent within one month from today. The Petitioner is directed to handover peaceful possession of the disputed shop within fifteen days from today. A copy of the order shall be sent to the District Magistrate and Senior Superintendent of Police, Muzaffarnagar to ensure the compliance of the judgment and order passed today. If the Petitioner fails to handover the vacant possession of the shop to the Respondent landlord, the shop shall be immediately sealed by the District Administration. This direction is being issued by taking strength from an earlier judgment of this Court in W.P. No. 25 (R/C) of 2007, Vidyawati and Ors. v. Additional Sessions Judge, Lucknow and others. In this case, this Court has passed the order for sealing of the premises in dispute situate in Aliganj area of Lucknow city. The above order was affirmed by the Supreme Court in Special Leave to Appeal (Civil) No. 4865 of 2007, Ashok Sharma and Ors. v. Vidyawati and others. The tenant was directed to deposit the arrears of rent. Taking strength from the above decision, the Court has to pass such an order so that the rule of law is enforced and respected and such erring persons may learn a lesson. It shall be open for the Respondent to initiate proceedings against the Petitioner in the concerned Bench for deliberate and wilful defiance of Court''s orders.

The writ petition is dismissed with costs as above.