A Writ Petition challenging the impleadment of a co-owner in a rent ejectment suit was dismissed as not maintainable because a revision remedy was available before the District Judge. The Court penalized the petitioner with costs for delaying proceedings.
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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 1413 of 2005 (M/S)
Smt. Sabiha Mohamood …….……..Petitioner.
Versus
Civil Judge (Junior Division), Dehradun and others
……………Respondent.
Present: Mr. A.Rab, Advocate for the for the petitioner. Mr. Pankaj Purohit, Deputy Advocate General for Respondent No.1.
Dated: 21st July, 2017
JUDGMENT
Hon’ble Sharad Kumar Sharma, J.
The Civil Court was exercising power under Provincial Small Cause Courts Act or as a Civil Court, even then this Court feels the order would be revisable either under Section 25 of Provincial Small Cause Courts Act or under Section 115 of C.P.C. as the case may be.
On 31.05.2004, the petitioner instituted suit for rent ejectment of Respondent No.2 from tenement, in question, before Civil Judge (Jr. Div.) Dehradun, which was numbered as Suit No. 132 of 2004, Smt. Sabiha Mahamood Vs. Smt. Bashiran, where she claimed eviction and recovery of arrears of rent. Notices were issued to Respondent No.2 and she filed her written statement on 07.02.2005. While the proceedings were pending, respondent No.3 filed an application under Order 1 Rule 10 (2) read with Section 151 for getting himself impleaded in Suit. This application, as filed on 05.08.2005, was numbered as paper 22A by the Court below. The basis of this application was that respondent No. 3 claimed himself to be co-owner of the tenement, in question, according to respondent No. 3, he was necessary and proper party for deciding the Suit.
The Impleadment Application was fixed for arguments on 20.08.2005, but could not be argued and Court fixed 25.05.2005 for arguments on the application.
Case of the petitioner is that though the application was fixed on 27.08.2005, but was not argued, fixed on 14.09.2005. But according to the petitioner on the date fixed 14.09.2005, she got the knowledge that application has been decided on 27.08.2005 by Trial Court. The petitioner’s case is that she filed an application for recalling the order dated 27.08.2005, allowing the application, which was rejected by order dated 22.10.2005. It is these two orders, against which, writ petition has been filed.
Since, any order passed by Subordinate Court in exercise of its power under the Provincial Small Cause Courts Act or even as a Civil Court, as it not clear as to whether would be Revisional Court’s order under Section 25 of the Act, a remedy available to the petitioner was before the District Judge against said order, since the order happened to be passed by the Civil Judge (Junior Division), Dehradun.
As the writ petition is not maintainable and the petitioner has been able to get proceedings delayed, this Court imposes a cost of Rs.5,000/- on petitioner.
This writ petition is not maintainable, hence, it is dismissed.
(Sharad Kumar Sharma, J.) 21.07.2017
Sanjay
3 issues framed by the court
Whether a writ petition challenging the impleadment order in a rent ejectment suit is maintainable when a revision remedy exists.
If the appeal period has lapsed, can the petitioner seek recall of the order allowing impleadment.
Whether the writ petition was filed to delay the underlying proceedings.
3 provisions across 2 enactments
Smt. Sabiha Mohamood
Civil Judge (Junior Division), Dehradun
Bashiran
Respondent No. 3
Sharad Kumar Sharma
As recorded by the court registry
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