Judgment:
Prakash Krishna, J.
1. This is landlord's petition. It arises out of an application for release filed by the petitioner in respect of first floor accommodation of premises No. 106/3, Gandhi Nagar, P. Road, Kanpur Nagar of which the respondent No. 3, Om Prakash Dembla is the tenant for a sum of Rs. 88 per month for residential purpose.
2. The petitioner filed a release application under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as U.P. Act No. 13 of 1972), before the prescribed authority on the ground that the accommodation in question is bona fide required by him. He has a large family. Besides himself, his wife, three sons and four grandchildren are there. They are residing in one room accommodation of House No. 49/87, Naugraha, Kanpur with bath room on the first floor, kitchen and latrine on the second floor and one kothari and terrace on the third floor. It was registered as Rent Case No. 36 of 1997.
3. In spite of service of notice, the tenant-respondent No. 3 herein, chose not to appear before the prescribed authority and the case proceeded ex parte against him by order dated 28.1.1998. 23.2.1997 was the date fixed for ex parte evidence. An application purporting to be under Order I, Rule 10, C.P.C. dated 13.2.1998 for impleadment was filed by the wife of the tenant, Smt. Urmila Dembla praying that she may be impleaded in place of her husband as her husband is out of station for the last one year regarding his business and he will further be out of station at least about one year. The said application was rejected by the order dated 24.2.1998.
4. Thereafter dates after dates such as 13.4.1998, 21.4.1998, 28.4.1998, 8.5.1998, 19.7.98, 29.8.98, 29.9.98, 28.10.98, 5.11.98, 6.11.98, etc., were fixed in the case. The application filed by the tenant/respondent No. 3, to recall the order dated 28.1.1998 was allowed subject to payment of Rs. 300 as costs. In spite of that the tenant-respondent failed to appear and contest the release application and the release application was ultimately allowed by the order dated 15.11.1999. It was found that the need of the petitioner is bona fide and genuine and the accommodation in question was consequently released in favour of the petitioner.
5. Against the aforesaid order Rent Appeal No. 11 of 2000, was filed by Smt. Urmila Dembla wife of the tenant, Om Prakash Dembla, Rishabh Dembla and Nishant Dembla (minor sons of Om Prakash Dembla) as appellants. In the memo of appeal it was stated that husband of Urmila Dembla is untraceable since the year 1995 and as such, the judgment of the prescribed authority releasing the disputed accommodation without impleading the wife of the tenant and sons, is illegal.
6. The court below by the impugned judgment dated 22:5.2003 has allowed the appeal, set aside the release order dated 15.11.1999 and remanded the matter back to the prescribed authority with direction to afford an opportunity of hearing to the wife of Om Prakash Dembla and the sons before deciding the release application. Feeling aggrieved against the aforesaid judgment, the present writ petition is on behalf of the landlord.
7. The learned Counsel for the petitioner submits that the impugned order passed by the court below is whimsical and totally against material on the record. The appellate court has passed the remand order without taking into account the relevant consideration available on the record. The submission is that there is no evidence worth the name to show that as a matter of fact the tenant, Om Prakash Dembla is missing since the year 1995. On the contrary the voluminous evidence on the record speaks otherwise and the said plea set up by the wife of the tenant is totally bogus and was raised with a view to gain time.
8. The learned Counsel for the respondents, Sri Amit Saxena, on the other hand, supports the order of the court below.
9. Considered the respective submissions of the learned Counsel for the parties. To buttress his submission the petitioner's counsel made extensive reference to the applications filed by the wife of the tenant for her impleadment and the one filed by the tenant himself.
10. The following facts emerge from the record:
(1) It is not in dispute that an application under Order I, Rule 10, C.P.C. was filed by the wife of the tenant on 13.2.1998 ; copy whereof has been filed as Annexure-2 to the writ petition wherein she has stated that her husband is out of station for the last one year in connection of business and he will further be out of station at least about one year. The relevant paragraph is reproduced below:
2. That though it is quite true that the rent receipts are issued in the name of the applicant's husband but he is out of station for last about one year regarding business and he will further be out of station at least about one year and in the circumstances it would be most intricate for him to be appeared and contest, sign or verify the application and objections etc. It would be most significant to mention here in that the counter parts of the rent receipts are signed by the applicant.It may be noted that the said application was filed in the year 1998, but there is no whisper therein that her husband is missing since the year 1995. On the contrary it has been stated therein that her husband is out of station in connection with the business specifically. The learned Counsel for the respondents when confronted, could not give any explanation with regard to the aforesaid stand.
(2) The prescribed authority passed an ex parte order dated 18.1.1998 and to recall that ex parte order an application dated 18.3.1998 alongwith affidavit of the tenant Om Prakash Dembla (Annexure-6 to the writ petition) is on the record wherein he has deposed that he could not appear as he was out of station for a long period and has appointed his wife Smt. Urmila Dembla to deal with and manage entire affairs. The contents of paragraph 5 of the said affidavit is reproduced below:
5. That it has already been informed by my wife to this Hon'ble Court that the deponent was out of station with respect to his business as such he could not put in his appearance on the date fixed while his wife has done so therefore, the deponent and his family member have not been negligent in putting their appearance and they have not avoided the proceedings of the Hon'ble Court deliberately rather it was an unavoidable circumstance.This itself speaks that upto 18.3.1998 Om Prakash Dembla, the tenant was very much alive. Had it been not so, the affidavit could not have been filed.
(3) The ex parte order was recalled on payment of Rs. 300 as costs by the prescribed authority by order dated 10.11.1998, but the cost was not deposited and the case again proceeded ex parte and the release application was allowed by the order dated 15.11.1999.
(4) Pointedly, a query was put to the learned Counsel for the respondents to show the evidence, if any, in support of the claim that Om Prakash Dembla is missing since the year 1995. He could not point out whether any first information report regarding alleged missing of Om Prakash Dembla was lodged. He admits that no first information report was lodged. An application allegedly was given to the Police Station informing about the missing of Om Prakash Dembla. However, it has been submitted by the petitioner's counsel that as a matter of fact no such application was ever filed and the alleged application dated 20.10.1995 is nothing but a fabricated and manufactured document. To buttress his stand, the learned Counsel for the petitioner invited attention of the Court towards application No. 178756 of 2003. filed in this Court, copy whereof was served on the respondents' counsel on 5.9.2005, wherein it has been prayed that a report from the Police Station, Shishamau, Kanpur Nagar be called for, through standing counsel to ascertain whether Smt. Urmila Dembla had given the application dated 20.10.1995 about missing of her husband on 13.10.1995 and the result, if any, of the investigation held. The respondents, in spite of service of a copy of the said application, failed to controvert the contents thereof by filing any counter-affidavit. In view of the overwhelming evidences on record, which are in the nature of admission of the tenant, Om Prakash Dembla and his wife, already referred to above, it was not thought desirable to call for any report from the Police Station concerned. It is but obvious that the alleged application is a got up and fabricated document for the purposes of the case.
(5) It was pointed out that in the appeal a fresh attempt was made by the contesting respondents by filing application (17C) to permit the wife of the tenant to produce evidence to prove that Om Prakash Dembla, the tenant is missing. The said application was hotly contested by the present petitioner and was dismissed by 6th Additional District Judge, Kanpur Nagar by the order dated 10.8.2000. It has been found therein that Om Prakash Dembla was present on 18.3.1998 and every attempt is being made by the tenant and his wife to some how linger on the case and as such, the application was rejected being meritless.
(6) The most striking feature of the case is that same counsel Sri Prem Krishna Tripathi, advocate is appearing in the case simultaneously on behalf of the tenant, Om Prakash Dembla and his wife whose vakalatnama is Annexure-6 to the writ petition.
11. The Additional District Judge (Court No. 6) Kanpur Nagar before whom the appeal was transferred subsequently, without taking into consideration the facts, noted above, has allowed the appeal without adverting to the question whether Om Prakash Dembla, the tenant is missing since the year 1995 or not. It proceeded to decide the appeal on the presumption and assumption that the tenant, Om Prakash Dembla is missing since the year 1995 and since the rent was being paid by the wife of the tenant as alleged by her, an opportunity of hearing be afforded to her, by setting aside the ex parte decree.
12. The court below has not taken into consideration the facts noted above and are available on record.
13. Whether the tenant Om Prakash Dembla is missing or not is being hotly debated and contested by the petitioner-landlord at every stage of the litigation. The unequivocal facts on record clearly show that the said plea, as set up by the tenant, is absurd and bogus on the face of it Before passing a remand order, it was expected from the appellate court to apply its mind as to whether there is any material on record to suggest even remotely that Om Prakash Dembla is missing since the year 1995 as alleged by the appellants therein.
14. Having held that on facts the impugned judgment cannot be sustained, there is another aspect of the case yet. On legal plane also, the impugned order suffers from manifest error of law. The appellate court has presumed that the succession to the tenancy right is open as the, tenant is missing since 1995.
15. The question arises even if the tenant is missing, for the sake of argument, for the last seven years, his wife and sons have a right to inherit the tenancy right? This question has been examined by the Privy Council in Lal Chand Marwari v. Mahant Ramrup Gir and Anr. AIR 1926 PC 9, and it has been held that there is no presumption of exact time of death under Section 108 of the Evidence Act and the date of death has to be established on evidence by person who claims a right for establishment of which that facts is essential.
16. The matter again came up for consideration before the Apex Court in Darshan Singh and Ors. v. Gujjar Singh (Dead) by L.Rs. and Ors. : [2002]1SCR91 . In the above noted case it was held by the High Court that a person named Jagjit Singh was not heard for more than seven years, and therefore, presumed his death on the date of filing of the suit. The Apex Court disagreed with the aforestated view of the High Court and held that in view of the settled position of law the succession to the estate of Jagjit Singh did not open on the date of filing of the suit as the plaintiff therein could not prove the date of death of Jagjit Singh. The relevant paragraphs 5 and 6 are reproduced below:
5. In Sri Vidya Mandir Education Society (Regd.) v. Mulleswaran Sangeetha Sabha and Ors. 1995 Supp 1 SCC 27, this Court considered provisions of Sections 107 and 108 of the Evidence Act and after noticing the decision of the Privy Council in Lal Chand Marwari v. Mahant Ramrup Gir and Anr. AIR 1926 PC 9, held that there is no presumption of exact time of death under Section 108 of the Evidence Act and the date of death has to be established on evidence by person who claims a right for establishment of which that fact is essential. The case in hand as plaintiff claimed succession to the estate of Jagjit Singh, and therefore, the burden was on him to prove the date of death. There is neither any pleading nor an averment by the plaintiff-respondent regarding date of death of Jagjit Singh. The view of the High Court that as Jagjit Singh was not heard for more than 7 years, and, therefore, the date of filing of the present suit would be considered as date of death of Jagjit Singh is contrary to above provisions of law.
6. In view of the settled position of law, the succession of plaintiff-Gujjar Singh to the estate of Jagjit Singh would open only on the death of Jagjit Singh. As plaintiff-GuJjar Singh could not prove the date of death of Jagjit Singh, therefore, his succession to his estate did not open on the date of filing of the suit. W e, therefore, hold that the above findings of the appellate courts are not sustainable in law.
(Emphasis laid)
17. Viewed as above, the impugned judgment suffers with manifest error of law as there is no pleading nor any evidence to show the exact date of death of Om Prakash Dembla, the tenant. There is no material on record to show that the tenant is missing for the last seven years. ,
18. The tenant was given sufficient opportunities to contest the release application, but failed to avail them. The ex parte order dated 28.1.1998, at the instance of the tenant, was recalled, but even then he failed to participate in the proceedings. Resultantly, there is no defence nor any evidence on behalf of the tenant to rebut the case of the petitioner. The tenant by his conduct lost his right to file written statement or produce evidence to challenge the contents of the release application. The petitioner-landlord, on the other hand, filed evidence to show that his large family is confined almost in one room accommodation at Naugraha premises No. 49/87. In this view of the matter, no useful purpose is going to be served requesting the appellate court to rehear and redecide the appeal. The fate of such appeal is already known. That appears to be reason for taking an unusual stand by the tenant in defence.
19. Learned Counsel for the respondents also expressed his inability and helplessness to say anything on the merits of the release application in the absence of any evidence or pleading on behalf of the tenant-respondents.
20. It was also urged by the petitioner's counsel that the tenant-respondents have not paid any rent/damages for the use and occupation of the disputed accommodation since 1997. However, it is not necessary for this Court to adjudicate upon it in these proceedings.
21. Taking into consideration the facts and circumstances of the case in its totality, and also the fact that the tenant-respondents have abused process of the Court and have no regard to judicial proceedings, final order on the release application is passed by quashing the impugned order and restoring the release order by the prescribed authority.
22. In Salem Advocate Bar Association, Tamil Nadu v. Union of India : AIR2005SC3353 the Apex Court has observed that under Section 35B of C.P.C. an order may be made requiring the defaulting party to pay to other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses Incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of the suit or the defence. It is observed that judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded on the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. It has been further held that when Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the Court in its discretion may direct otherwise by recording reasons thereof. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental cost besides the payment of the court fee, typing etc.
23. The impugned order, for the reasons given above, is quashed and the release application filed by the petitioner stands allowed with costs assessed at Rs. 25,000 (Rs. Twenty five thousand only) payable by the contesting respondents to the petitioner. The defence set up by the tenant respondents is wholly vexatious and frivolous.
24. Time to vacate the disputed premises is granted upto 30.9.2007, provided the respondent Nos. 3 and 4 file an undertaking on affidavit before the prescribed authority within 15 days from today that they will vacate the premises in dispute on or before 30.9.2007 and will hand over its peaceful vacant possession to the petitioner without creating any third party interest. If the respondent Nos. 3 and 4 fail to vacate the disputed premises they will be liable to pay damages at the rate of Rs. 5,000 per month w.e.f. 1st September, 2007 till the date of actual delivery of possession. Costs and damages shall be recoverable by the respondent No. 1 and the District Magistrate as arrears of land revenue and the respondents No. 3 and 4 shall be jointly and severally liable to pay it.
25. The writ is allowed with costs of Rs. 25,000 (Twenty five thousand only), as indicated above.