High Court
Case Details
Court No. - 85 Case :- MATTERS UNDER ARTICLE 227 No. - 4478 of 2021 Petitioner :- Sudama Kumar Respondent :- Ramdhar Counsel for Petitioner :- Brijesh Chandra Naik Counsel for Respondent :- Ajay Kumar Singh,Ashish Kumar Singh Hon'ble Vikas Budhwar,J.
Legal Reasoning
1. Heard Sri Brijesh Chand Nayak , learned counsel for the defendant-petitioner as well as Sri Ajay Singh, learned counsel , who appears for the sole plaintiff-respondent. 2. This is a petition under Article 227 of the Constitution of India seeking following relief:- "It is therefore, most respectfully prayed that this Hon'ble Court be pleased to set aside the judgment and order dated 16.8.2021 passed by Additional District & Session Judge/Special Judge, Gangster Act, Court No.9, Varanasi in Small Causes Court (S.C.C.) Case No.10 of 2013 and allow the defendant's/petitioner's application dated 13.2.2020 (paper No.92 Ga), or pass such other and further orders, which this Hon'ble Court deems fit and proper in the circumstances of the case." 3. Essentially, the relief so sought in the present petition purported to be under Article 227 of the Constitution of India is for setting aside of the judgment and order dated 16.8.2021 passed by the Additional District and Sessions Judge/Special Judge, Gangsters Act, Court No.9, Varanasi in Small Causes Court (S.C.C.)Case No.10 of 2013 and to allow the defendant/petitioner's application dated 13.2.2020 which has been marked as Paper No.92-Ga for getting the signatures verified /proved by hand writing expert of the plaintiff- respondent with respect to paper no.90-Ga which happens to be an unregistered agreement dated 22.7.2009 (notarized) and also for recalling the witness DW-1. 4. Factual controversy as worded in the present petition is to the extent that plaintiff- respondent is stated to be the landlord of the house no. Sa-06/186-K-1, Akatha (Pahariya to Ashapur Road), Varanasi and the defendant-petitioner claims himself to be the tenant of shop no. 2, 6A and 6B on the ground floor as well as one hall on the first floor, residential flat being nos. 1 and 2 on second floor and flat no.4 on third floor. In pursuance of the registered agreement dated 7.10.2008 so executed between the parties which finds his presence as Annexure 1 at page 16 of the paper book the tenecy was for a period of five years containing a stipulation of payment of monthly rent to the tune of Rs. 22,500/-. 5. Learned counsel for the petitioner-defendant has sought to argue that by virtue of the above noted registered agreement dated 7.10.2008 so executed between the parties the defendant- petitioner was put in possession and he had utilized the said premises so owned by the plaintiff-petitioner. Learned counsel for the defendant-petitioner has drawn the attention of the Court towards page 48 which happens to be a notarized agreement which is Annexure-3 so executed on the same date i.e. 7.10.2008 whereby the plaintiff-respondent had provided that the rate of the rent per month was Rs. 47,000/- and an amount of Rs. 2,82,000/- was to be advanced by the defendant- petitioner to the plaintiff respondents towards execution of the registered agreement dated 7.10.2008 for the payment of stamp duty. 6. Learned counsel for the petitioner has further drawn the attention of the Court towards another document which is at Annexure-5 at page 64 of the paper book which stated to be dated 22.7.2009 wherein reference of the registered agreement dated 7.10.2008 was given, however, details with regard to the payment to be made to the tune of Rs. 2,82,000/- was also provided therein. Learned counsel for the petitioner has further drawn the attention of the Court towards page 36 which happens to be the S.C.C. Suit No.10 of 2013 so instituted by the plaintiff-respondent before the court of District Judge, Varanasi against the defendant petitioner wherein relief was sought to be made for passing the decree of ejectment and the defendant herein be directed to vacate the accommodation in question as mentioned in the suit in question. According to learned counsel for the petitioner once the registered agreement dated 7.10.2008 had been executed between the parties setting out the terms and the conditions so executed between the landlord and the tenant then the execution of unregistered agreement on 7.10.2008 as well as the another notarized agreement dated 22.7.2009 which was being relied upon by the plaintiff/respondent ought to have been exhibited in such a form so as to make the basis for adjudication of the dispute in question, which is pending before the court below at the instance of the plaintiff-respondent. 7. Sri Brijesh Chandra Naik, who appears for the defendant petitioner has sought to argue that earlier an application acompanying application no. 46-Ga was preferred before the court below being a photocopy of the notarized agreement dated 22.7.2009 and as subsequently he could locate and gather the true copy of the agreement dated 22.7.2009 so he preferred an application being application no.88-Ga before the court below to be produced as one of the exhibit and the same was allowed by virtue of the order dated 15.3.2019 which is already on record at page 67. Subsequently, he had preferred an application being paper no.90-Ga wherein opinion of the handwriting expert was being sought to be acceded to of the plaintiff respondent while comparing the document dated 22.7.2009 with the signature of the plaintiff-respondent so effected in the Vakalatnama and plaint. However, he has further invited the attention of the Court towards page 30 of the counter affidavit so as to contend that the said application was dismissed as withdrawn on 19.10.2019 and, thereafter, he preferred another application being paper no.92-Ga on 13.2.2020 for the relief being comparing of the signatures of the plaintiff respondent as affected in the notarized document dated 22.7.2009 viz-a-viz the signature on registered agreement dated 7.10.2008 and notarized agreement dated 7.10.2008 and also recalling of the DW-1 being the defendants-petitioners. The said application according to Sri Brijesh Chandra Naik has been rejected in a mechanical manner by virtue of the order dated 16.8.2021. In nut shell the argument of the learned counsel for the defendant-petitioner is to be extent that once the unregistered document dated 22.7.2009 had been admitted then obviously the court was bound to have asked for the opinion of the handwriting expert and also recall the witness being DW-1. 8. Per contra, Sri Ajay Singh, learned counsel for the plaintiff- respondent has vehemently opposed the said prayer and has argued that first of all the present relief so sought to be caused in the present proceedings itself is not maintainable particularly in view of the fact that earlier also the application so preferred on 16.9.2019 for getting handwriting expert's opinion stood rejected on 19.10.2019 and that too without any liberty and in view of the settled legal provision of law that the res-judicata applies in the same proceeding even in a subsequent stage the said application ccannot to have been entertained at all and it was rightly rejected. Learned counsel for the plaintiff- respondent has further drawn the attention of the Court towards the judgment in the case of Barkat Ali and others Vs. Badri Narain (D) by Lrs reported in AIR 2008 Supreme Court 1272 para 6 as well as judgment in the case of Bhanu Kumar Jain Vs. Archana Kumar and others reported in AIR 2005, Supreme Court 626 para 18. 9. Sri Ajay Singh has further contended that so far as the terms and the conditions to govern the relationship of the landlord and the tenant is already finding his presence in an registered agreement dated 7.10.2008 and once the court below by virtue of the order dated 16.8.2021 has exercised its power while verifying the signature of the parties in question then there is no occasion to even in fact call for the handwriting expert's report. He has further drawn the attention of the Court towards page 21 of the counter affidavit so filed by him being Annexure CA-2 so as to further contend that even in his statement/deposition the entire facts have already been highlighted and he has ample opportunity to prove his own case. 10. I have heard learned counsel for the parties and have perused the record. 11. The order dated 16.8.2021 is being sought to be challenged by the defendant-petitioner on the pretext that the court below had manifestly erred in law in not asking for the report of the handwriting expert and secondly in not recalling the DW-1. According to me, the court below has rightly not called the report of handwriting expert as the court below had power so vested in itself to have compared the signatures and it has rightly done so. So far as the other aspect of the matter with relation to the dispute so arisen with regard to the amount of Rs. 2,82,000/- which is being sought to be advanced by the tenant to the landlord is concerned, which finds his presence in the notarized document dated 22.7.2009 is concerned, the necessary averments in this regard has already been made in the plaint so executed by the landlord respondent particularly, in para 15 of the same. More so unregistered document dated 22.7.2009 has already been exhibited and has been kept on record and once the signature should compared and verified by the court below then obviously it will cause no prejudice to the defendant petitioner. So far as the issue with relation to the fact that the serious prejudice is being sought to be caused to the petitioner defendant while not recalling DW-1 who happens to be one of the star witness is concerned, the entire facts stands crystallized in the statement so deposed by him which finds place as Annexure CA-2 at page 21 wherein not only the reference of the registered document dated 7.10.2008, unregistered document dated 7.2.2008 and the unregistered document dated 22.7.2009 itself finds place. More so the challenge so raised at this stage is at interlocutory stage and obviously the case is to be proceeded as per law and it will be open for the parties to argue on the basis of the document available on record in that regard.
Legal Reasoning
12. Sri Brijesh Chandra Naik has lastly sought to contend that there is a serious dispute with regard to the amount of the rental to be paid as a tenant being either Rs. 22,500/- per month or Rs. 47,000/- per month. However, this Court at this stage cannot delve into the said issue as the same is to be finally decided on the basis of the evidences, which have been exhibited in that regard. 13. Learned counsel for the parties jointly made a statement before this Court that the proceedings in S.C.C. Case No.10 of 2013 is pending before the Additional District and Sessions Judge/Special Judge, Gangster Act, Court No.9, Varanasi and a suitable direction be issued for disposal of the same within the time bound period. This Court without going into the intricacies of the matter finds proper to direct the court of Additional District and Sessions Judge/Special Judge, Gangster Act, Court No.9, Varanasi to conclude and decide the proceedings in S.C.C. Case No.10 of 2013 within a period of three months from the date of the production of a certified copy of the order. 14. Consequently, the present writ petition is wholly misconceived and is dismissed. Order Date :- 17.8.2022 Mini Digitally signed by MINI KANAUJIYA Date: 2022.08.22 15:28:38 IST Reason: Location: High Court of Judicature at Allahabad