# Mukesh Gupta v. Special Judge (P.C.Act) Lucknow and another

- **Citation:** (2012) 2 ILRA 965
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-08-22
- **Bench:** Saeed-Uz-Zaman Siddiqi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukesh-gupta-v-special-judge-p-c-act-lucknow-and-another-42316
- **Pages:** 5

## Headnote

Code of Civil Procedure-Order 15 Rule-5striking out of defense-inspite of putting
appearance on several adjourn datespetitioner/tenant failed to deposit the
arrears of rent, for use and occupationconsequently defense struck of whichallowed to get finality-now on highly
belated stage prayer for quashing entire
proceeding
can
not
be
grantedconsidering long term of harassment of
land lord as well as wastage of precious
time of Court-with exemplary cost of Rs.
25000/ imposed-petition disposed of
with direction first to deposit entire
amount with cost on adjourn date then
opportunity of cross examination be
given.

Held: Para 16

Under these circumstances, the writ
petition is devoid of merits and is,
hereby, dismissed with special cost of
Rs.25,000/-. However, the learned Trial
Court
may
exercise
its
discretion
liberally, if the petitioner deposits entire
amount of Rs.4,23,500/-, due as against
him and the cost of Rs.25,000/- on the
date fixed before the learned Trial Court
966 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
and may allow him to cross examine
PW1 but, shall not adjourn the case so as
to delay its disposal.
Case Law discussed:
2005 (1) S.C.C. 705; 2005 AIR SCW 2070; AIR
1977 SC 2421; 2000 SCFBRC 321; 2003 AIR
SCW 7158; (2010) 2 SCC 114; (2010) 2 SCC
114; AIR 1983 S.C. 1015; 2010 (2) ARC 260;
2008 (1) ARC 436

## Text

2 All] Mukesh Gupta V. Special Judge (P.C.Act) Lucknow and another
965
hence the said Rules cannot be applied to
him.

4. Salary in regular pay-scale cannot
be provided to daily wagers, however
minimum salary must be paid and
according to the own case of the
petitioner the minimum salary is being
paid to him since 2008 (para-9 and
Annexure-V of the writ petition).

5. Accordingly, no relief can be
granted to the petitioner. Writ Petition is
therefore dismissed.

6. However, it is an alarming
situation that for 19 years petitioner is
working on daily wages basis. There must
be thousands of such employees who are
working on daily wage posts for more
than ten years in different departments of
Government
of
U.P.
having
been
appointed after 29.06.1991. Government
must
take
a
decision
either
for
regularising their services by amending
the Rules of 2001 or by filling up the
posts
by
regular
appointment
by
providing
due
weightage
to
those
employees who are working on daily
wages basis for a long time particularly
more than ten years.

7. Office is directed to supply a copy
of this order free of cost to Sri S.P.
Mishra, learned standing counsel for
sending the same to Principal Secretary,
Irrigation
and
Chief
Secretary,
Government of U.P.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.08.2012

BEFORE
THE HON'BLE SAEED-UZ-ZAMAN SIDDIQI, J.

Rent Control No. - 73 of 2012

Mukesh Gupta

 ...Petitioner
Versus
Special Judge (P.C.Act) Lucknow and
another

 ...Respondents

Counsel for the Petitioner:
Sri Sudeep Kumar
Sri Avdhesh Kumar Pandey

Counsel for the Respondents:
Sri Manish Kumar
Sri Ankit Srivastava

Code of Civil Procedure-Order 15 Rule-5striking out of defense-inspite of putting
appearance on several adjourn datespetitioner/tenant failed to deposit the
arrears of rent, for use and occupationconsequently defense struck of whichallowed to get finality-now on highly
belated stage prayer for quashing entire
proceeding
can
not
be
grantedconsidering long term of harassment of
land lord as well as wastage of precious
time of Court-with exemplary cost of Rs.
25000/ imposed-petition disposed of
with direction first to deposit entire
amount with cost on adjourn date then
opportunity of cross examination be
given.

Held: Para 16

Under these circumstances, the writ
petition is devoid of merits and is,
hereby, dismissed with special cost of
Rs.25,000/-. However, the learned Trial
Court
may
exercise
its
discretion
liberally, if the petitioner deposits entire
amount of Rs.4,23,500/-, due as against
him and the cost of Rs.25,000/- on the
date fixed before the learned Trial Court
966 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
and may allow him to cross examine
PW1 but, shall not adjourn the case so as
to delay its disposal.
Case Law discussed:
2005 (1) S.C.C. 705; 2005 AIR SCW 2070; AIR
1977 SC 2421; 2000 SCFBRC 321; 2003 AIR
SCW 7158; (2010) 2 SCC 114; (2010) 2 SCC
114; AIR 1983 S.C. 1015; 2010 (2) ARC 260;
2008 (1) ARC 436

(Delivered by Hon'ble Saeed-Uz-Zaman
Siddiqi, J.)

1. Counter affidavit filed on behalf
of opposite party no.2 is taken on record.

2. Heard learned counsel for the
petitioner
and
learned
counsel
for
opposite parties and perused the records
of the case.

3. This writ petition has been
preferred by the petitioner with a prayer
that a writ be issued in the nature of
certiorari quashing the order dated
21.12.2011 passed in SCC Suit No.94 of
2010 pending in the Court of Special
Judge (Prevention of Corruption Act),
Lucknow, further prayer is that the order
for
rejection
of
application
for
impleadment be also quashed which has
been passed on 16.03.2012, another
prayer is for quashing of the orders dated
28.05.2012 and 7.8.2012.

4. Relevant facts are that the
petitioner is defendant in SCC Suit
No.94 of 2010 which has been filed
against him by respondent no.2 and is
being heard by respondent no.1.

5. The defendant/petitioner filed
written statement on 4.5.2011 but did not
deposit any amount of rent, damages for
use and occupation, court fees, counsels'
fees or interest till date. Several dates
have been fixed by the learned Trial
Court but no amount has been deposited
by the defendant/petitioner.

6. The landlord/respondent no.2 has
specifically stated in para no.6 of the
counter affidavit that Rs.4,23,500/- is
due as against the tenant as on today. The
defence of the petitioner was struck of
vide order dated 20.12.2011 but he did
not prefer any revision nor challenged
the order anywhere. This order has
attained finality between the parties.
Now at the final stage he has filed this
writ petition with a prayer to quash all
the proceedings of the learned Trial
Court in one stroke. The respondent no.2
has filed his evidence as PW1 on
6.4.2012 but the petitioner has not cross
examined the respondent no.2 and
continued to get the case adjourned on
one pretext or the other exhibiting a
growing tendency of the litigants to
linger on the eviction proceedings on one
pretext or the other.

7. In Atmaram Properties v.Federal
Motors, reported in 2005 (1) S.C.C. 705,
the Hon'ble Apex Court has held as
under:

"The landlord / tenant litigation
constitutes a large chunk litigations
between in the courts and tribunals. The
litigation goes on for unreasonable
length of time and the tenants in
possession of the premises do not miss
any opportunity of filing appeals or
revisions so long as they can, thereby,
afford to perpetuate the life or litigation
and continued in occupation of the
premises."

8. In Gayatri Devi & ors. v. Shashi
Pal Singh, reported in 2005 AIR SCW
2 All] Mukesh Gupta V. Special Judge (P.C.Act) Lucknow and another
967
2070, the Hon'ble Apex Court has held
as under:

"This appeal demonstrates how a
determined and dishonest litigant can
interminably
drag
on
litigation
to
frustrate the results of a judicial
determination in favour of the other
side.......

On
1.11.1987
the
appellant
committed perhaps the gravest blunder
of her life of letting out the suit property
to the respondent-tenant at a monthly
rent of Rs.1300/-, which subsequently
came to be increased to Rs.1500/- w.e.f.
1.1.1990.....

The history of this litigation shows
nothing but cussedness and lack of bona
fides on the part of the respondent. Apart
from his tenacity and determination to
prevent the appellants from enjoying the
fruits of the decree, there appears to be
nothing commendable in the case. Even
before us the same arguments of fraud,
and that the appellants were not legally
owners of the suit property, were
pleaded.....

In our view, the conduct of the
respondent
deserves
condemnation
which we indicate by imposition of
exemplary costs of Rs.20,000/- on the
respondent."

9. In T.Arivandandam v. T.V.
Satyapal and another reported in AIR
1977 SC 2421, the Hon'ble Supreme
Court has held:

"The
sharp
practice
or
legal
legerdemain of the petitioner, who is the
son of the 2nd respondent, stultifies the
court process and makes decree with
judicial seals brutum fulmen. The long
arm of the law must throttle such
litigative caricatures if the confidence
and credibility of the community in the
judicature is to survive."

10.

Later
on
in
Rajappa
Hanamantha
Ranoji
v.
Mahadev
Channabasappa & ors, reported in 2000
SCFBRC 321, the Hon'ble Supreme
Court has held as under:

"It is distressing to note that many
unscrupulous litigants, in order to
circumvent orders of the courts adopt
dubious ways and take recourse to
ingenious methods including filing of
fraudulent litigation to defeat the orders
of the courts. Such tendency deserves to
be taken serious note of and curbed by
passing appropriate orders and issuing
necessary directions including imposing
or exemplary costs."

11. In Ravinder Kaur v. Ashok
Kumar & anr. reported in 2003 AIR
SCW 7158, the Hon'ble Supreme Court
has held as under:

"Courts of law should be careful
enough to see through such diabolical
plans of the judgment-debators to deny
the decree-holders the fruits of the
decree obtained by them. These type of
errors on the part of the judicial forums
only
encourage
frivolous
and
cantankerous litigations causing law's
delay and bringing bad name to the
judicial system."

12. In Dalip Singh v. State of U.P.
and others, reported in (2010) 2 SCC
114, the Hon'ble Supreme Court has held
as under:
968 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

"In exercising jurisdiction under
Article 226 of the Constitution, the High
Court will always keep in mind the
conduct of the party who is invoking such
jurisdiction. If the applicant does not
disclose full facts or suppresses relevant
materials or is otherwise guilty of
misleading the Court, then the Court may
dismiss the action without adjudicating
the matter on merits. The rule has been
evolved in larger public interest to deter
unscrupulous litigants from abusing the
process of Court by deceiving it. The
very basis of the writ jurisdiction rests in
disclosure of true, complete and correct
facts. If the material facts are not
candidly stated or are suppressed or are
distorted, the very functioning of the writ
courts would become impossible."

13. The Hon'ble Supreme Court in
the above said case has further held as
under:

"In K.D. Sharma v. Steel Authority of
India Ltd. and others (2008) 12 SCC 481,
the court held that the jurisdiction of the
Supreme Court under Article 32 and of the
High Court under Article 226 of the
Constitution is extraordinary, equitable
and discretionary and it is imperative that
the petitioner approaching the Writ Court
must come with clean hands and put
forward all the facts before the Court
without
concealing
or
suppressing
anything and seek an appropriate relief. If
there is no candid disclosure of relevant
and material facts or the petitioner is
guilty of misleading the Court, his petition
may be dismissed at the threshold without
considering the merits of the claim. The
same rule was reiterated in G. Jayshree
and others v. Bhagwandas S. Patel and
others (2009) 3 SCC 141."

14. This is the experience of this
Court that in last 40 years, a new breed of
litigants has cropped up. Those, who
belong to this breed, do not have any
respect for truth. They shamelessly resort
falsehood
and
unethical
means
for
achieving their goals. In order to meet the
challenge posed by this new breed of
litigants, the Courts have, from time to
time evolved new rules and, it is now well
established, that the litigants, who attempt
to pollute the stream of justice or who
touches the pure fountain of justice with
tainted hands, are not entitled to any relief
interim or otherwise. I find force while
holding this by the law laid down in Dalip
Singh v. State of U.P. (2010) 2 SCC, 114
by Hon'ble Supreme Court. The Hon'ble
Apex Court has held in Welcome Hotel v.
State of A.P. AIR 1983 S.C. 1015 that a
party who has mislead the Court in passing
an order in its favour, is not entitled to be
heard on the merits of the case.

15. In view of the discussions as
made above, the petitioner is unnecessarily
dragging the landlord into this controversy
and getting the disposal of case delayed by
hook or by crook. Reliance has been
placed by the petitioner on the judgments
passed by this Court in Pyare Lal v.
District Judge, Lucknow and others
reported in 2010 (2) ARC 260 and Mahesh
Kumar v. Shibbo Singh & anr, reported in
2008 (1) ARC 436, which are of no help.

16. Under these circumstances, the
writ petition is devoid of merits and is,
hereby, dismissed with special cost of
Rs.25,000/-. However, the learned Trial
Court may exercise its discretion liberally,
if the petitioner deposits entire amount of
Rs.4,23,500/-, due as against him and the
cost of Rs.25,000/- on the date fixed before
the learned Trial Court and may allow him
2 All] M/S. Fartuna Foundations Engineers & Consultant (Pvt.) Ltd V. I. F.C. of India Ltd. & others
969
to cross examine PW1 but, shall not
adjourn the case so as to delay its disposal.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.08.2012

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE VISHNU CHANDRA GUPTA, J.

Misc. Bench No. - 2965 of 2012

M/S. Fartuna Foundations Engineers &
Consultant (Pvt.)Ltd.

...Petitioner
Versus
Industrial Financial Corporation Of India
Ltd. And Others

...Respondents

Counsel for the Petitioner:
Sri A.P.Singh
Sri A S Rakhra

Counsel for the Respondents:
Sri G S Mishra

Constitution
of
India,
Article
226quashing of auction-sale proceeding -
after fall of hamper-highest bidder fail to
deposit 25% of auction sale amountadmittedly deposited 25 % amount on
next date-held-vitiate entire proceeding
of auction and sale-accordingly quashed.

Held: Para 12

In view of above, there appears to be no
room of doubt that immediately after fall
of hammer it shall be necessary for the
auction purchaser to deposit 25 per cent
of the amount of bid. Non-deposition
shall
vitiate
the
auction
and
sale
proceeding.
Accordingly,
the
writ
petition deserves to be allowed on this
solitary ground.
Case law discussed:
AIR 1950 SC 163; AIR 1969 SC 556; AIR 1954
SC 403; AIR 1953 SC 252; AIR 1961 SC 372;
AIR 1967 SC 549; 2000 (10) SCC 482; 2002
(3) SCC; AIR 1990 SC 772; 2001 (9) SCC 99;
1980 (2) SCC 437
(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Heard Shri A.P.Singh, learned
counsel for the petitioner and Shri
G.S.Mishra learned counsel for the opposite
parties no. 1 to 3. According to office
report, notice was served on opposite party
no. 4 but he didn't turn up. There is
endorsement in the order sheet with regard
to sufficiency of service of notice on
opposite party no. 4. With the consent of
parties' counsel, we proceed to decide the
writ petition finally at admission stage.

2. Shri G.S. Mishra, learned counsel
for the respondents has vehemently argued
that the controversy may be relegated to
alternative forum i.e. Tribunal. However,
after hearing learned counsel for the parties
at length, we are of the view that the
petition may be decided on pure question of
law, hence, it is not necessary to relegate the
matter to alternative forum. It has been
settled by a catena of decisions of Hon'ble
Supreme Court that the statutory alternative
remedy is no bar for this Court to exercise
power under Art. 226 of the Constitution of
India in case petition does not involved
disputed question of facts vide AIR 1950
SC 163, Rasid Ahmad Vs. Municipal
Board Kairana; AIR 1969 SC 556, Babu
Ram Vs. Zila Parishad; AIR 1954 SC
403, Himmat Lal Vs. State of Madhya
Pradesh,AIR 1953 SC 252, State of
Bombay Vs. United Motors, Calcutta
Discount Company Vs. I.T.O. AIR 1961
SC 372; Bhopal Sugar Industry Vs. STO,
AIR 1967 SC 549,2000 (10) SCC 482,
Union of India Vs. State of Haryana,
2002
(3)
SCC,
Maharashtra
State
Judicial Services Association Vs. High
Court of Judicature at Bombay,AIR
1990 SC 772, Salonah T. Company Vs.
Superintendent of Taxes; 2001 (9) SCC
99,
T.N.Transport
Corporation
VS.