Rakesh Tiwari, J.@mdashHeard learned Counsel for the parties and perused the record.
2. The Petitioners have filed this writ petition for a writ of certiorari for quashing the impugned order and judgment dated 30.10.2010 passed by the Additional District Judge, IV, Moradabad. They have also prayed for staying the operation of the order and judgment dated 30.10.2010.
3. The facts in brief are that Respondent No. 1, Smt. Kamlesh Gupta is the landlady of shop No. 29 situate at Kedar Nath Girdhari Lal Market Maupur, District Moradabad. It was let out to one Manohar Lal Katyal, the husband of the Petitioner allegedly on rent at the rate of Rs. 375/-per month where the business of General Merchant was being run by the husband of the Petitioner.
4. It is claimed by the Petitioner Smt. Krishna Katyal, that business in the shop in dispute is the only source of income and livelihood of entire family of her husband which consists of 9 members. It is stated that the Petitioner had filed Civil Misc. Writ Petition No. 4971 of 2010, Smt. Krishna Katyal v. Smt. Kamlesh Gupta in which the Court vide order dated 2.2.2010 granted liberty to the court below to consider the appeal of the Petitioner with the observation that if Sanjay Kumar Katyal, the son of the Petitioner, who is running his business of general merchant in the shop in dispute has filed any appeal, then the impleadment application of the Petitioner may be considered along with the appeal.
5. The contention of learned Counsel for the Petitioner Smt. Krishna Katyal in the writ petition is that she is a necessary party as she is also running business with her son and being member of family had moved an impleadment application in her own right. It was also asserted that she had not served with any notice and Respondent No. 2, Sanjay Kumar Katyal, her son had not informed her about the aforesaid proceedings for eviction of the tenant as such the order dated 7.8.2007 passed by the Prescribed Authority dismissing the application on the ground that she had no concern as the release application against one of joint tenants is sufficient, is illegal.
6. It is also vehemently contended by the learned Counsel for the Petitioner that as the Petitioner had no knowledge in the aforesaid circumstances that release application had been allowed by the Prescribed Authority vide judgment and order dated 25.8.2007; that she was advised to file the appeal against the judgment and order dated 28.10.2008 and consequently, Rent Appeal No. 3 of 2008 was filed by her. The District Judge by his order dated 6.11.2009 though allowed application filed u/s 5 of the Limitation Act but dismissed the appeal on the ground that impleadment application having already been dismissed by the Prescribed Authority and she being the joint tenant along with her son who was contesting the case, she has no case on merits.
7. It is further submitted that in the aforesaid appeal the Petitioner had moved an application for permitting her to file written statement in which she claimed that she is running business along with her son, Respondent No. 3 from the shop in dispute. The landlady filed her objection dated 9.7.2010 alleging that the lower court has already considered the written statement and evidence filed by Respondent No. 2, the son of the Petitioner, as such, the Additional District Judge, IV vide order dated 30.10.2010 rejected the application 116-Ga of the Petitioner.
8. Sri Kshitij Shailendra, learned Counsel for the Respondents has submitted that the Petitioner has filed a number of writ petitions in this Court concealing correct this facts with an intention to delay the proceedings. He also submits that in the impugned order the factum of filing Civil Misc. Writ Petition No. 38196 of 2007, Smt. Krishna Katyal v. Smt. Kamlesh Gupta and another has been referred to by the court below.
9. The Court has noted the submission of the learned Counsel for the Petitioner in that case holding thus:
The submission was that the present application was filed to prolong the release proceedings. Earlier also on three occasions the tenant approached this Court unsuccessfully. The filing of the impleadment application was in the aid of delaying the proceedings. Considered the respective submissions of the learned Counsel for the parties. The learned Counsel for the Respondents has referred the following cases in support of her submission that on the death of original tenant, the tenancy rights are inherited by heirs as joint tenants.
1.
2.H.C. Pandey v. G.C. Paul 1989(2) ARC 26
3.
4. Harish Tandon v. Additional District Magistrate and others in 1995(1)ARC 220.
5. Gouri Shankar Gupta v. Anita Mishra and another in 2004(1) ARC 200.
6. Vivek Gupta v. Shri Piyush Chandra Srivastava and Ors. in 2003(2) ARC 313.
Coming to the facts of the present case, it is not in dispute that Sanjay Kumar one of the sons of Late Manohar Lal is carrying on the business from the shop in question he admittedly has obtained registration from the Trade Tax Department for carrying on the business in the said shop. It is also not in dispute that the present application for impleadment was filed on a day earlier when date of delivery of judgment was fixed. The Supreme Court in the case of Harish Tandon (Supra) has held that on the death of tenant, the heirs succeed the tenancy rights as joint tenants, he represents the estate of the deceased as heirs. It is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefore and the heirs succeed to the tenancy as joint tenants.
In this view of the matter, I find no illegality in the impugned order rejecting the impleadment application filed by the Petitioner. Besides the above, the said impleadment application was filed at a belated stage and it is not a fit case to interfere with the impugned order under Article 226 of the Constitution of India. In the result, the writ petition lacks merit and is dismissed summarily.
10. The relevant facts in that writ petition are as under:
The present writ petition is directed against the order dated 7.8.2007 passed by the Prescribed Authority in P.A. Case No. 41 of 2006 whereby it has rejected the application filed by the present Petitioner for her impleadment in release proceedings u/s 21(1)(a) of U.P Act 13 of 1972.
Indisputably Ma nohar Lal Katyal, husband of the present Petitioner was the tenant of the Shop No. 29, Kedar Nath Girdhari Lal Market, Manpur, Moradabad. He died on 26.12.2004 leaving behind the Petitioner as widow and sons and daughters. A release application registered as P.A No. 41 of 2006 was filed by the Land Lady namely Smt. Kamlesh Gupta, Respondent No. 1 herein impleading Sanjay Kumar one of the sons of Late Manohar Lal Katyal therein as opposite party. Shri Sanjay Kumar is contesting the release application. When the matter was ripe up for hearing and as a matter of fact, it was heard finally by the Prescribed Authority and 7.8.2007 was the date fixed for delivery of judgment, one day earlier an application for impleadment was filed by the present Petitioner. It was pleaded therein that she being one of the heirs of deceased Manohar Lal, is entitled to be impleaded under Order 1 Rule 10 Code of CPC The said application was contested by the Land Lady on the ground that it is malafide and has been filed just to delay the proceedings. It was also pleaded that the release application is being contested by Shri Sanjay Kumar who alone is doing the business in the disputed shop. The Prescribed Authority by the impugned order has rejected the impleadment application.
Shri Vivek Mishra, learned Counsel for the Petitioner submits that the impugned order passed by the Prescribed Authority is in teeth of the judgment of this Court given in Gauri Shanker Gupta v. Anita Mishra and another in 2004(1) ARC 200. On the other hand the learned Counsel for the Respondent submits that this Court should not exercise its discretion in favour of a person who has filed the impleadment application with ulterior motive to delay the proceedings. The submission was that the present application was filed to prolong the release proceedings. Earlier also on three occasions the tenant approached this Court unsuccessfully. The filing of the impleadment application was in the aid of delaying the proceedings.
11. It appears that the aforesaid writ petition was dismissed by confirming the order of the court below that the Petitioner is a joint tenant and that Sanjay Kumar Katyal is running the business as such the release application against member of the joint tenant family is sufficient.
12. In the facts and circumstances of the case, earlier also the Petitioner had approached the Court and it has been found that notice served upon one member of the joint members of the family, who was jointly living in the shop in dispute was sufficient. It is apparent that the Petitioner is abusing the process of the Court by raising same plea time and again. Since one of the coordinate Benches has decided the matter in Writ Petition No. 38196 of 2007, this Court is not inclined to interfere in the matter under Article 226 of the Constitution. However, to deter the Petitioner from abusing the process of the Court further, the petition is liable to be dismissed with exemplary heavy costs.
13. The Apex Court in
So far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on number of other issues or points, which were unnecessarily raised. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rule in force. If any of the parties has unreasonably protracted the proceedings, the judge should consider exercising discretion to impose exemplary costs after taking into account the expense incurred for the purpose of attendance on the adjourned dates.
14. Thus from the law laid down by the Hon''ble Apex Court in the aforesaid case of Salem Advocate bar Association (supra) it is apparent that non-payment of cost is an exception for which special reasons have to be given by the Court and that in normal circumstances cost has to be awarded on the party according to the issue decided in favour of the party which were unnecessarily raised. The cost so imposed should be in accordance with rules and if the proceedings are unnecessarily protracted or adjournments have been sought it is upon the discretion of the Judge to impose exemplary cost taking also into account the circumstances etc. for the purpose of adjournment.
15. The aforesaid case has been followed in Civil Misc. Writ Petition No. 48752 of 2006 Nizamuddin v. Shakoor Ahmad in which judgment has been rendered on 5.9.2006 after considering the relevant Allahabad High Court Rules, 1952 as well as Sections 34, 35, 35A and 35B of the Code of Civil Procedure. It has been held therein that:
From the aforesaid rule it is evident that the Court can make such order as to costs as it may consider just. It is discretionary power of the Court to impose cost, hence it cannot be said to be illegal or perverse. The Court should award cost for judicious approach taking into consideration the whole set of facts and circumstances and not award cost arbitrarily or capriciously.
In my opinion while awarding interest on a party by non-payment of principal amount or any dues should also be considered by the Court and not only interest but penal interest may also be awarded.
16. Considering all the facts and circumstances of this case that same issue is being unnecessarily being raised time and again by the Petitioner, the writ petition is dismissed with cost of Rs. 20,000/-upon the Petitioner. It shall be deposited by her before the appellate Court in Rent Control Appeal No. 3 of 2010 and paid to the landlord within two months from today. In case of failure of the Petitioner to deposit the cost, the same shall be recovered as arrears of land revenue from her within a month thereafter and paid forthwith to the landlord.
