High Court
Case Details
Court No. - 6 Case :- WRIT - A No. - 8023 of 2022 Petitioner :- Pradumn Kumar Gupta @ Raja Gupta Respondent :- State of U.P. and Another Counsel for Petitioner :- Deepak Kumar Counsel for Respondent :- C.S.C. Hon'ble J.J. Munir,J. This matter was mentioned yesterday as an urgent matter before His Lordship The Hon'ble The Chief Justice and has appeared in the list of mentioned cases today, accordingly. This petition is directed against an order dated 22.11.2021, passed by the Judge, Small Cause Court, Kanpur Nagar in Miscellaneous Case No.71/74/19 made on behalf of the petitioner, Pradumn Kumar Gupta alias Raja Gupta through his special Power of Attorney holder
Legal Reasoning
Smt. Nidhi Gupta, seeking to set aside an order dated 07.03.2019 passed in Miscellaneous Case No. 14/74 2017 and to restore the last mentioned miscellaneous case to its original file and number. S.C.C. Suit No. 130 of 2009 was filed by the second respondent to this petition, Dr. Madhukar Katiyar, against the petitioner, Pradumn Kumar Gupta alias Raja Gupta for eviction, recovery of arrears of rent and mesne profits. The suit was duly registered on the file of the learned Judge, Small Cause Court, Kanpur Nagar and summons were issued. A vakalatnama on behalf of the defendant- petitioner, Pradumn Kumar Gupta was filed by his wife, Prabha Ranjan Gupta followed by an application by Smt. Prabha Ranjan Gupta, applying to be appointed as guardian ad litem of the defendant. It was asserted that the defendant is a mentally retarded man, who qualifies as a person of unsound mind. He cannot defend his interest in the suit. Smt. Prabha Ranjan Gupta said in the application that she would produce the necessary medical certificate from the Chief Medical Officer in substantiation of her claim to be appointed as the defendant's guardian in the suit. The Trial Court granted opportunity to Smt. Prabha Ranjan Gupta for the purpose, but no evidence was filed to substantiate the claim. The Trial Judge has remarked that sufficient time and opportunity was given for the purpose, but to no avail. The application for appointment as guardian was rejected vide order dated 30.11.2011. On the other hand, the defendant did not appear on the date fixed for hearing in the suit. As such, vide order dated 30.11.2011, the suit was set down for hearing ex- parte. The plaintiff led his evidence and by judgment and decree dated 20.10.2012, the suit was decreed ex-parte for eviction and recovery of arrears of rent and mesne profits accrued pendente lite and future, until delivery of possession. An application to set aside the ex-parte decree dated 20.10.2012 was made on behalf of the defendant again through Smt. Prabha Ranjan Gupta, purporting to act as his guardian ad litem. The aforesaid application was registered on the file of the learned Judge, Small Cause Court, Kanpur Nagar as Misc. Case No. 74 of 2013. The aforesaid application to set aside the ex-parte decree came to be dismissed in default in the applicant's absence on 09.01.2014. A further application to recall the order dated 09.01.2014, dismissing Misc. Case No. 74 of 2013, was made on behalf of the defendant, that was numbered as Misc. Application No. nil/74/2014. This application, too, came to be dismissed for want of prosecution on 05.05.2014, in the absence of the defendant-applicant. Now, the defendant-applicant, once more through his wife, purporting to act as his guardian, made a restoration application dated 08.01.2015, seeking to recall the order dated 05.05.2014. The ground taken in the application was that the application giving rise to Misc. Case No. nil/74/2014 was moved through Mr. Satyendra Awasthi, Advocate and he was instructed to pursue it. However, upon ascertaining of facts from Mr. Awasthi, it transpired that his clerk, by an inadvertent error, had incorrectly recorded the date fixed for hearing of the application, on account of which, it was dismissed for non-prosecution on 05.05.2014. It was also claimed that her pre-occupation with the treatment of her husband prevented her from personally appearing or contacting the learned Counsel instructed by her. Accordingly, another application, seeking to recall the order dated 05.05.2014 and a corresponding order dated 09.01.2014 passed in the execution case was made on behalf of the defendant, again through his wife Smt. Prabha Ranjan Gupta on 13.01.2015. It was registered on the file of the Judge, Small Cause Court, as Misc. Case No. 4/74 of 2015. This application came up for determination before the Trial Judge on 07.03.2019 and once again, the applicant-defendant and his counsel were absent. The plaintiff-respondent was present. Accordingly, vide order dated 07.03.2019, it was rejected. The order records the fact that it appears that the application has been made to delay execution of the decree. Now, after a long time, it appears that when the execution went ahead, an application was again moved on behalf of the defendant-judgment debtor through his special Power of Attorney, Smt. Nidhi Gupta, wife of Neeraj Gupta, seeking to recall the order dated 07.03.2019, dismissing Misc. Case No. 4/74 of 2015. This case was registered as Misc. Case No. 70/74 of 2019 on the file of the Judge, Small Cause Court, Kanpur Nagar. Mercifully, the applicant-defendant-judgment debtor. represented by whatever kind of a special attorney, appeared in support of the application and the Judge, Small Cause Court, after hearing both parties, dismissed Misc. Case No. 70/74 of 2019 vide order impugned dated 22.11.2021. Aggrieved, the petitioner has filed the present petition, questioning the order dated 22.11.2021 and for further relief, to quash the entire proceedings of Original Suit No. 230 of 2009 and the execution case arising from the decree made in the suit. Heard Mr. Deepak Kumar Jaiswal, learned Counsel for the petitioner in support of the motion to admit this petition to hearing. It appears from a perusal of the record that the petitioner's wife, Smt. Prabha Ranjan Gupta, who claims that the petitioner is not of sound mind and, therefore, requires a guardian ad litem to defend him, never challenged the order dated 30.11.2011 passed by the Judge, Small Cause Court, whereafter the suit proceeded ex-parte. It was subsequently decided ex-parte by the judgment and decree dated 20.10.2012. The ex-parte decree is in force and the case about the petitioner-judgment-debtor being a person of unsound mind, has not been accepted by the Trial Court or by the Executing Court, on the basis of whatever documents have been placed before them. To the contrary, the order of the Trial Court dated 30.11.2011, whereby the application of the petitioner's wife to permit her to represent the petitioner as his guardian ad litem in the suit, has been refused and that order has already become final inter partes. In the circumstances, the present application to recall the order passed in the misc. case, objecting to execution on the ground that the petitioner is not of sound mind and the decree could not have been passed, or for that matter on the ground of delay, cannot be faulted. The petitioner appears to be evading execution of the decree passed ex parte, way back in the year 2012, on one pretext or the other. In such circumstances, there is no good ground to interfere with the order impugned.
Decision
In the result, this writ petition fails and stands dismissed. Let this order be communicated to the Judge, Small Cause Court, Kanpur Nagar through the learned District Judge, Kanpur Nagar, by the Registrar (Compliance). Order Date :- 26.5.2022 I. Batabyal/NSC Digitally signed by ISHAN BATABYAL Date: 2022.06.03 19:22:06 IST Reason: Location: High Court of Judicature at Allahabad