# Niyamatullah and 2 others v. 1st A.D.J., Bahraich and 2 others

- **Citation:** (2012) 3 ILRA 1515
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-12-06
- **Case number:** Rent Control No. 9 of 2004
- **Bench:** Saeed-Uz-Zaman Siddiqi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/niyamatullah-and-2-others-v-1st-a-d-j-bahraich-and-2-others-42346
- **Pages:** 5

## Headnote

Constitution of India, Article 226-read
with Small Cause Court Act 1887 Section
23-during pendency of suit before the
Small
Cause
Court-after
40
yearsapplication to return the plaint by
tenant-on ground intricates question of
ownership-JSCC as well as Revisional
Court
dismissed
the
application
on
ground the question of ownership is not
under
consideration
only
with
soul
purpose to prolong the litigation such
foul game has been played-petition
dismissed by imposing cost of Rs.
25,000-direction
to
conclude
the
proceeding within 3 month issued.

Held: Para-17

On the basis of discussions made above,
writ petition deserves to be dismissed.
Writ petition is accordingly dismissed
with a cost of Rs.25,000/- to be paid by
the petitioners to opposite party no.3
within thirty days from today or in case
of refusal by opposite party no.3 the
same shall be deposited before the
learned Judge, Small Causes Courts
within stipulated time, which shall be a
condition precedent for the petitioners to
participate in the proceedings of S.C.C.
Suit No.22 of 1992. Both the order under
challenge are hereby confirmed. Learned
Judge, Small Causes Court, Bahraich,
where the suit is pending is directed to
proceed on with the case, on day to day
basis, in such a fashion, that it is decided
within three months from the date of
production of a certified copy of this
order.
Case Law discussed:
AIR 1973 SC 1034; 1987 (1) ARC 281; 2005
(1) SCC 705; 2005 AIR (SC) 2342; 2000
SCFBRC 321; 2003 AIR SCW 7158; (2010) 2
SCC 114; AIR 1983 S.C. 1015; 2000 AIR SCW
3793

## Text

3 All] Niyamatullah and 2 others V. 1st A.D.J., Bahraich and 2 others
1515
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.12.2012

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

Rent Control No. 9 of 2004

Niyamatullah and 2 others ...Petitioners
Versus
1st A.D.J., Bahraich and 2 others

 ...Respondents

Counsel for the Petitioner:
Mohd. Arif Khan
Sri M.P. Verma

Counsel for the Respondents:
C.S.C.
Sri B.R. Tripathi

Constitution of India, Article 226-read
with Small Cause Court Act 1887 Section
23-during pendency of suit before the
Small
Cause
Court-after
40
yearsapplication to return the plaint by
tenant-on ground intricates question of
ownership-JSCC as well as Revisional
Court
dismissed
the
application
on
ground the question of ownership is not
under
consideration
only
with
soul
purpose to prolong the litigation such
foul game has been played-petition
dismissed by imposing cost of Rs.
25,000-direction
to
conclude
the
proceeding within 3 month issued.

Held: Para-17

On the basis of discussions made above,
writ petition deserves to be dismissed.
Writ petition is accordingly dismissed
with a cost of Rs.25,000/- to be paid by
the petitioners to opposite party no.3
within thirty days from today or in case
of refusal by opposite party no.3 the
same shall be deposited before the
learned Judge, Small Causes Courts
within stipulated time, which shall be a
condition precedent for the petitioners to
participate in the proceedings of S.C.C.
Suit No.22 of 1992. Both the order under
challenge are hereby confirmed. Learned
Judge, Small Causes Court, Bahraich,
where the suit is pending is directed to
proceed on with the case, on day to day
basis, in such a fashion, that it is decided
within three months from the date of
production of a certified copy of this
order.
Case Law discussed:
AIR 1973 SC 1034; 1987 (1) ARC 281; 2005
(1) SCC 705; 2005 AIR (SC) 2342; 2000
SCFBRC 321; 2003 AIR SCW 7158; (2010) 2
SCC 114; AIR 1983 S.C. 1015; 2000 AIR SCW
3793

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

1. By means of this writ petition,
petitioners have sought for a writ in the
nature of certiorari, quashing the order
dated 26.10.1998, passed by the learned
Judge, Small Causes Court / Civil Judge
(J.D.), Bahraich, contained as Annexure
No.1 and judgment and order dated
16.12.2003, passed by First Additional
District Judge, Bahraich, contained as
Annexure No.10, to the writ petition.

2. Heard learned counsel for both
the parties and gone through the records.

3. The admitted facts between the
parties are that the petitioners are tenants
of the disputed premises. The opposite
party no.3, claiming himself to be
landlord filed a small cause case for
eviction and recovery of rent and damages
for use and occupation before the learned
Trial Court. Opposite party no.2 filed
written statement and challenged the
ownership of opposite party no.3, who
was plaintiff before the Judge, Small
Causes Court. Replication was also filed
by opposite party no.3. The suit was filed
1516 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
on 2.9.1992. Written statement was filed
by the petitioners on 21.10.1993. The
replication was filed on 22.3.1994, against
which the defendants / petitioners filed
another application on 22.08.1996. On the
same
date,
the
petitioners
moved
application before the learned Judge,
Small Causes Court under Section 23 of
the Provincial Small Cause Courts Act,
1887, for returning the plaint on the
ground
that
intricate
question
of
ownership is involved in this case, which
was numbered as Paper No.116-C. It was
rejected vide order dated 26.10.1998. The
petitioners filed S.C.C. Revision No.21 of
1998, which was also dismissed vide
judgment and order dated 16.12.2003.
Aggrieved by both the orders, petitioners
have knocked the door of this Court.

4. Admittedly, the petitioners are
tenants of the disputed shop. They are
raising issue of ownership on the ground
that Nazar Mohammad was the owner of
the disputed premises who executed will
on 25.05.1968 in favour of his widow
who along with her five sons and one
daughter sold it. In the said sale deed all
the heirs of Nazar Mohammad were not
party. The petitioners have raised a plea
that since Smt. Sughra Bano widow of
Nazar Mohammad was heir and under
Islamic law a will cannot be executed in
favour of an heir. The will was void. It is
undisputed that a muslim can bequeath his
property up to the extent of one third but
if the said will is in favour of an heir all
the other co-heirs must consent to it. In
either case, through sale deeds the
opposite party no.3 became owner. His
ownership can be challenged by the heirs
of Nazar Mohammad. That may be a
question of title involved as amongst the
heirs of Nazar Mohammad, but such
dispute cannot entitle the tenant to raise it
in a small cause case and plead that it is
an intricate question of title, upon which
the
plaint
should
be
returned
for
presentation to the proper court. This
misconception of law and creation of the
ground of a mischievious tenant to
prolong the possession in the disputed
premises. Section 23 of the Small Cause
Courts Act, 1887 is reproduced as under:-

"Return of plaints in suits involving
question of title-(1) Notwithstanding
anything in the foregoing portion of this
Act, when the right of a plaintiff and the
relief claimed by him in a Court of Small
Cases depend upon the proof or disproof
of a title to immovable property or other
title which such a Court cannot finally
determine, the Court may at any stage of
the proceedings return the plaint to be
presented to a Court having jurisdiction
to determine the title.

(2) When a Court returns a plaint
under sub-section (1), it shall comply with
the provisions of the second paragraph of
section 57 of the Code of Civil Procedure
(14 of 1882) and make such order with
respect to costs as it deems just, and the
Court shall, for the purposes of the Indian
Limitation Act, 1877 (15 of 1877), be
deemed to have been unable to entertain
the suit by reason of a cause of a nature
like to that of defect of jurisdiction."

5. In view of the above mentioned
provisions of law the right of plaintiff and
the relief claimed by him must depend
upon proof or disproof of title. Title of the
plaintiff is not at all involved in this case
which is based upon relationship of
landlord and tenant. Admittedly the
plaintiffs are the tenants. The factum of
ownership is foreign to the scope of
Judge, Small Causes Court.
3 All] Niyamatullah and 2 others V. 1st A.D.J., Bahraich and 2 others
1517

6. In M/s. Hiralal Ratanlal v. STO,
AIR 1973 SC 1034, this court observed:-

"In construing a statutory provision
the first and foremost rule of construction
is the literally construction. All that the
Court has to see at the very outset is what
does the provision say. If the provision is
unambiguous and if from the provision
the legislative intent is clear, the Court
need not call into aid the other rules of
construction of statutes. The other rules of
construction are called into aid only when
the legislative intent is not clear."

7. A full Bench of this Court has
held in Gopal Das v. Additional District
Judge, Varanasi, 1987 (1) ARC 281, in
which it was held that one co-owner is
competent to maintain an action for
eviction of the tenant of the entire
premises, since he can be considered as a
"landlord" within the meaning of Section
3(5) of U.P. Act No.13 of 1972. It was
further held that one co-owner alone
would be competent to sign such
application.

8. In view of the legal propositions
as mentioned above the petitioners are
dragging the landlord / opposite party
no.3 in the litigation since 1992. Twenty
years have elapsed and suit is yet to see
light of the day. This is a case of sheer
abuse of court process. In Atma Ram
Properties (P) Ltd. v. Federal Motors
Pvt. Ltd., 2005 (1) SCC 705, Hon'ble
Supreme Court has held as under:-

"Landlord-tenant
litigation
constitutes a large chunk of litigation
pending 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
of
litigation
and
continue
in
occupation of the premises."

9. This writ petition demonstrates
how a determined and dishonest litigant
can interminably drag on litigation to
frustrate
the
results
of
a
judicial
determination.
The
history
of
this
litigation shows nothing but cussedness
and lack of bonafide on the part of the
petitioners. Apart from their tenacity and
determination to prevent the opposite
party no.3 from enjoying the fruits of
decree, there appears to be nothing
commendable in the case. In view of the
conduct of the petitioner they deserves
condemnation
which
can
only
be
indicated by imposition of cost on the
petitioners.

10. While holding this I rely upon
the law laid down by the Hon'ble Apex
Court in Gayatri Devi and others v.
Shashi Pal Singh, 2005 AIR (SC) 2342.

11. In Rajappa Hanamantha
Ranoji v. Mahadev Channabasappa &
ors. Reported in 2000 SCFBRC 321, the
Hon'ble Supreme Court also made the
following observations:

"It is distressing to note that many
unscrupulous
litigants
in
order
to
circumvent orders of Courts adopt
dubious ways and take recourse to
ingenious methods including filing of
fraudulent litigation to defeat the orders
of Courts. Such tendency deserves to be
taken serious note of and curbed by
passing appropriate orders and issuing
necessary directions including imposing
of exemplary costs. As noticed, despite
1518 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
eviction order having become final nearly
a quarter century ago, respondent no.1
still could not enjoy the benefit of the said
order and get possession because of the
filing of the present suit by the brother of
the person who had suffered the eviction
order. Under these circumstances, we
quantify the costs payable by the
appellant
to
respondent
no.1
at
Rs.25,000/-."

12. 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."

13. 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:

"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."

14. 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."

15. 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 generation 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
3 All] Dr. Vinay Kumar Pandey V. Chancellor D. D. U. Gorakhpur University Gorakhpur 1519
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 which has mislead the
Court in passing an order in its favour, is
not entitled to be heard on the merits of
the case.

16. The law laid down by this Court
as well as Hon'ble Apex Court in Shamim
Akhtar
v.
Iqbal
Ahmad
and
another,2000 AIR SCW 3793, supports
the cause of opposite party no.3.

17. On the basis of discussions made
above, writ petition deserves to be
dismissed. Writ petition is accordingly
dismissed with a cost of Rs.25,000/- to be
paid by the petitioners to opposite party
no.3 within thirty days from today or in
case of refusal by opposite party no.3 the
same shall be deposited before the learned
Judge, Small Causes Courts within
stipulated time, which shall be a condition
precedent for the petitioners to participate
in the proceedings of S.C.C. Suit No.22 of
1992. Both the order under challenge are
hereby confirmed. Learned Judge, Small
Causes Court, Bahraich, where the suit is
pending is directed to proceed on with the
case, on day to day basis, in such a
fashion, that it is decided within three
months from the date of production of a
certified copy of this order.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.12.2012

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE MAHENDRA DAYAL, J.

Service Bench No. - 189 of 2012

Dr. Vinay Kumar Pandey
 ...Applicant
Versus
Chancellor
Deen
Dayal
Upadhyay
Gorakhpur University Gorakhpur

 ...Respondents

Counsel for the Petitioner:
Sri Chandra Bhushan Pandey
Sri Rohit Tripathi

Counsel for the Respondents:
C.S.C.
Sri Alok Mathur
Sri Rajesh Chandra Mishra

Constitution
of
India,
Article
226dismissel order-without giving inquiry
report-without
issuing
show
cause
notice before passing major punishmentheld-clear violation of settled principles
of Law & Natural Justice as well-order
quashed-liberty to conduct fresh inquiry
in accordance with law.

Held: Para-17

In the present case, the manner in which
the Executive Council of the University
has acted in awarding punishment to the
petitioner is totally illegal and against
the principles of natural justice as
neither the copy of the Inquiry Report
was provided to the petitioner nor any
opportunity of hearing was given to him
before
awarding
him
the
major
punishment of dismissal.
Case Law discussed:
AIR 1994 SC 1074