# Narendra Kumar Jain Revisionist v. Sunil Kumar Chaurasia Oppo. Party

- **Citation:** (2003) 1 ILRA 14
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-12-05
- **Case number:** Civil Revision No. 443 of 2001
- **Bench:** B.K. Rathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/narendra-kumar-jain-revisionist-v-sunil-kumar-chaurasia-oppo-party-40046
- **Pages:** 4

## Headnote

Code of Civil Procedure 1908- section
115- section 25 of Provincial Small Cause
Court Act- the trial court has shown
more lienoncy than was necessary in
granting adjournments in favour of the
revisionist. Therefore, the argument that
there was no fair trial and proper
opportunity was not given cannot be
accepted.

Held - in para 11

There is absolutely no ground to remand
the case to provide further opportunity
to the revisionist to produce evidence.

## Text

http://www.allahabadhighcourt.nic.in
14 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
order of the District Judge can not be
maintained and the matter should be sent
back for reconsideration.

12. The revision is therefore,
allowed and the impugned order dated
9.7.1998 of the District Judge, Mirzapur
is quashed. The District Judge, Mirzapur
is directed to reconsider the matter in the
light of the observations made above after
opportunity to the parties to produce fresh
evidence.

13. In the circumstances, the parties
shall bear their own costs of this revision.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 5.12.2002

BEFORE
THE HON'BLE B.K. RATHI, J.

Civil Revision No. 443 of 2001

Narendra Kumar Jain
 ...Revisionist
Versus
Sunil Kumar Chaurasia ...Oppo. Party

Counsel for the Revisionist:
Sri B.B. Paul
Sri Vimlesh Srivastava

Counsel for the Opposite Party:
Sri A.K. Gupta

Code of Civil Procedure 1908- section
115- section 25 of Provincial Small Cause
Court Act- the trial court has shown
more lienoncy than was necessary in
granting adjournments in favour of the
revisionist. Therefore, the argument that
there was no fair trial and proper
opportunity was not given cannot be
accepted.

Held - in para 11

There is absolutely no ground to remand
the case to provide further opportunity
to the revisionist to produce evidence.

(Delivered by Hon'ble B.K. Rathi, J. )

1. The opposite party filed the suit
for eviction and recovery of arrears of
rent against the revisionist. The dispute is
regarding house no. 24-E, Bank Road,
Katra, Allahabad.

2. In brief, it was alleged that the
opposite party is the owner and the land
lord of the house in which the revisionist
was tenant and the rate of rent was
Rs.1500/- per month. The house was
constructed in the year 1975 and
thereafter it was given on rent and,
therefore, U.P. Act No. XIII of 1972 does
not apply, that the rent was not paid since
July 1996, that the tenancy has been
terminated by the registered notice dated
24.8.1998
which
was
served
on
31.8.1998. Hence the suit was filed.

3. The revisionist filed the written
statement claiming ownership of the
house. He denied the tenancy.

4. The trial court framed necessary
issues. The opposite party absented and,
therefore, suit proceeded in his absence
and was decreed on the basis of the
evidence adduced by the opposite party.
No evidence of the revisionist was
recorded. Against the decree, the present
revision has been preferred under section
25 of the Provincial Small Causes Court
Act.

5. I have heard Sri Vimlesh
Srivastava,
learned
counsel
for
the
revisionist and Sri A.K. Gupta, learned
counsel
for
the
opposite
party.
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1 All] Narendra Kumar Jain Vs. Sunil Kumar Chaurasia
15
6. The first argument of the learned
counsel for the revisionist is that there
was no fair trial of the case and no
opportunity to produce evidence was
given to the revisionist. Therefore, the
decree has to be set aside. It has been
argued that the case was fixed for
evidence on 28.2.2001. On that date, an
application for adjournment was moved
by the revisionist on the ground of illness
of his counsel which was allowed subject
to payment of Rs.300/- as costs and
29.3.2001 was fixed in the case, that again
on the date, application for adjournment
was moved by the revisionist for the
reason that the file has been misplaced
from the counsel due to white wash at his
house. This application for adjournment
was allowed on payment of Rs.600/- as
costs and 16.4.2001 was fixed for
evidence. On that date, the case was
adjourned to 30.4.2001 as the presiding
officer was on leave on 16.4.2001. The
revisionist again moved an application for
adjournment for the reason that the father
of the counsel died on 18.4.2001. This
application for adjournment was allowed
on payment of Rs.1200/- as costs and
3.5.2001 was fixed for evidence, that on
3.5.2001
the
revisionist
moved
an
application that he want to apply for
transfer of the case before the District
Judge, that application was rejected. The
evidence of the opposite party was
already recorded in the case. His
argument was heard and 14.5.2001 was
fixed for judgment.

7. In the meantime, the revisionist
moved an application for transfer before
the District Judge on 9.5.2001. It was
taken up on 11.5.2001. Unfortunately, on
that date, the counsel for the revisionist
became late and, therefore, it was rejected
for default.
8. It has also been argued that
thereafter the request was made by the
counsel to the District Judge to reconsider
the matter and the learned District Judge
on his request called for the file of the
case. Thereafter the file remained with the
District Judge and subsequently, it was
sent to the trial court. The trial court on
receipt of the file decreed the suit by
judgment dated 24.5.2001.

9. On the basis of these facts, it has
been
argued
that
application
for
adjournments were moved for sufficient
reasons on the personal grounds of
counsel,
that
the
applications
for
adjournments had to be moved for
unavoidable reasons. Inspite of that penal
costs were imposed and sufficient time
was not granted; that therefore, there was
no fair trial and the matter should be sent
back for re-hearing.

10. Opposing the request, Sri A.K.
Gupta, learned counsel for the opposite
party argued that the suit was filed on
25.10.1998. On every date fixed in the
case, the revisionist moved application for
adjournment. He took adjournments as
detailed in paragraph 7 of the counter
affidavit. It has not been denied that after
taking as many as 18 adjournments, the
written
statement
was
filed
under
compulsion as the court ordered that no
further time shall be allowed. The
revisionist
again
started
taking
adjournment
and
the
statement
of
opposite
party
was
recorded
on
15.11.2000. However, he was not crossexamined and the revisionist started
taking adjournments again on every date.
Several dates were fixed for crossexamination and ultimately on 30.4.2001
the statement of P.W. 2 Mohan Lal was
written. Thereafter, the revisionist took
http://www.allahabadhighcourt.nic.in
16 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
more than 12 adjournments and neither
cross-examined the witness adduced by
the opposite party nor produced his
evidence. Therefore, the evidence was
closed and the court proceeded under
Order 17 Rule 2 C.P.C.

11. After considering the facts of the
case, I am of the opinion that the trial
court
granted
more
than
necessary
adjournments
to
the
revisionist.
Therefore, it cannot be accepted that there
was no fair trial. On the other hand, it
appears that the trial court has shown
more licency than was necessary in
granting adjournments in favour of the
revisionist. Therefore, the argument that
there was no fair trial and proper
opportunity was not given cannot be
accepted and there is absolutely no
ground to remand the case to provide
further opportunity to the revisionist to
produce evidence.

12. Now coming to the merits of the
case, the first argument of the learned
counsel for the revisionist is that he is real
owner of the house. It is contended that
the land was purchased by the revisionist,
but the sale deed was got executed in the
name of the opposite party in the
circumstances explained by him in the
written statement; that the house was also
got constructed by him. Site plan was also
got sanctioned by him and on the front of
the house Jain Bhawan; has been written.
That all these facts shows that he is the
real owner of the house.

13. Regarding it, the first argument
of Sri A.K. Gupta, learned counsel for the
opposite party is that plea of benami is not
open to the revisionist. According to
Section 4 of the Benami Transactions
(Prohibition) Act, 1988. Clause (1) of
Section 4 deals with the suits and clause
(2) with the defence in the suits. It reads
as under :

"(2) No defence based on any right in
respect of any property held benami,
whether against the person in whose name
the property is held or against any other
person, shall be allowed in any suit, claim
or action by or on behalf of a person
claiming to be real owner of such
property."

14. In view of this section, the
defence that the opposite party is benami
of the house and revisionist is real owner
is not open to the opposite party. Learned
counsel could not show as to how this
case is covered under the exception given
in clause (3) to the above section.

15. Secondly, it has been argued that
no document was filed in the court below
in support of the defence. There is no
document
to
show
that
the
sale
consideration was paid by the revisionist
or he got sanctioned the site plan or he
has spent money on the constructions. As
against this, there is statement of opposite
party and Mohan Lal P.W. 2 which is
unrebutted.

16. Accordingly, I find that it
cannot be accepted that the revisionist is
the real owner of the house and the
opposite party is only benamidar.

17. Lastly, it has been argued by Sri
Vimlesh Srivastava, learned counsel for
the revisionist that there is no evidence
that the house was ever given on rent, that
there is no rent deed and no rent receipt
has been produced. There is no entry in
the Nagar Nigam that the revisionist is in
possession of the house as tenant. This
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1 All] Kumar Gandrva & others Vs. The Principal, M.M.M. Eng. College, Gorakhpur & ors.
17
argument of the learned counsel cannot be
accepted. There is unrebutted statement of
the opposite party and Sri Mohan Lal.
Their
statements
have
not
been
challenged in the cross-examination and
no evidence was produced in rebuttal. The
notice of the opposite party was not
replied.

Therefore, the learned trial court
rightly believed the unrebutted evidence
of the opposite party.

18. I do not find any ground to
interfere in the judgment and decree of
the trial court.

19. The revision fails and is hereby
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 4.12.2002

BEFORE
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 27582 of 2002

Kumar Gandrva and others ...Petitioners
Versus
The Principal, Madan Mohan Malviya
Engineering
College,
Gorakhpur
and
others

 ...Respondents

Counsel for the Petitioner:
Sri H.R. Misra

Counsel for the Respondents:
Sri Rakesh Upadhyaya
Sri Neeraj Tiwari

Constitution of India, Article 226 -
Education of B. Ech - Ist year- not
permitted to appear in examination on
the pretext- shortage of attendance than
60%-
pursuant
to
interim
order-
permitted to appear in IInd semester-
direction issued to declare the result -
circular dated 30.5.2002 not brought to
the knowledge of the college concern- in
similar circumstances other student less
then 60% attendance- already permitted
to appear in further examination but
debarring petitioner- held- arbitrary.

Held- Para 15

Court at the time of initial hearing of the
matter has permitted the petitioners to
appear in their respective examinations
of
IInd
semester
and
now
on
examination of the fact it is a clear case
in which it can be safely said that the
respondents have acted in an arbitrary
and
discriminatory
manner,
the
petitioners are entitled to get relief from
this Court so prayed in this petition. At
the same time it will be also the concern
of the Vice Chancellor, U.P. Technical
University who has issued the circular
dated 30.5.2002 reference of which has
come in the preceding paragraphs to
again issue circular to the concerned
institution under its control to do the
needful
in
furtherance
to
earlier
instructions which is clearly bonafide,
pious and in the best interest of the
students at large who are the future of
our society.
Case law discussed:
1987 UPLBEC-517,
JT 2000 (10) SC -216,
AIR 1995 SC-705
W.P.No. 8426 /02 decided on 25.2.2002

(Delivered by Hon'ble S.K. Singh, J.)

1. The prayer in this petition is for
issuance of writ in the nature of
mandamus commanding the respondents
to permit the petitioners to appear in the
examination of II Semester of B. Tech. Ist
year which has already commenced and
further to permit the petitioners to appear
in
the
examinations
of
those
subjects/papers of the aforesaid Semester
in which they could not appear. There is