Surya Prakash Kesarwani, J. - (1.) Heard Sri A. K. Srivastava, learned counsel for the defendant-tenant/petitioner and Sri Rahul Sahai, learned counsel for the plaintiff-landlord/respondents.
(2.) Briefly stated facts of the present case are that the plaintiff-landlord/respondents filed Rent Control Case No.03 of 2016 (Smt. Deep Sikha Vs. Rajendra Kumar) on 11.04.2016. Perusal of the copy of order sheet of the court below filed as Annexure 6 to the petition shows that about 76 dates were fixed in the said case. It further shows that various applications were moved by the defendant-tenant/petitioner from time to time. On 31.08.2018 the court below rejected the Application 93-Ga of the defendant-tenant/petitioner for amendment, observing that the defendant-tenant wants to keep the case pending by adopting delaying tactices. On 29.09.2018, the defendant-tenant filed some evidences. He was granted time till 06.10.2018 to file complete evidences. On 06.10.2018 further time was granted to the defendant-tenant. On 11.10.2018 the defendant-tenant again moved an Adjournment Application which was allowed subject to payment of cost of Rs.500/- and the next date was fixed for 17.10.2018 on which date he again moved an Adjournment Application 101-Ga on the ground that he being busy in some essential work could not make preparation for evidence. He had also not deposited the cost of Rs.500/- subject to which his Adjournment Application was allowed on 11.10.2018. By the impugned order dated 17.10.2018, the court below has rejected the Adjournment Application 101-Ga on the ground that firstly the cost imposed on 11.10.2018 has not been deposited and secondly, the defendant wants to delay the disposal of the case. Thereafter, the defendant-tenant/petitioner filed a Recall Application for recall of the order dated 17.10.2018. In his Recall Application he took entirely a new ground for seeking adjournment on 17.10.2018. In paragraph 2 of his Recall Application he stated that on 17.10.2018 his counsel was ill and was busy in his personal work and therefore, evidence could not be prepared. The court below rejected this Application 102-Ga by the impugned order dated 27.11.2018 observing that the rejection of Adjournment Application was on merit and therefore, it cannot be recalled. Aggrieved with these two orders, namely, the order dated 17.10.2018 rejecting the Adjournment Application 101-Ga and the order dated 27.11.2018 rejecting the Recall Application (Paper No.102-Ga), the defendant-tenant/petitioner has filed the present petition under Article 227 of the Constitution of India.
(3.) Sri A. K. Srivastava, learned counsel for the defendant-tenant/petitioner submits as under: (i) Both the impugned orders are illegal, inasmuch as, the right to file evidence should not have been taken away, particularly in view of the law laid down by Hon'ble Supreme Court in Bashir Ahmed Vs. Mehmood Hussain Shah, 1995 AIR(SC) 1857 (para 8). (ii) The court below, who passed the order rejecting the Adjournment Application 101-Ga is competent to recall its own order. Therefore, the rejection of Recall Application on the ground that since the order dated 17.10.2018 was on merit and therefore, it cannot be recalled, is wholly arbitrary and illegal. (iii) Non payment of cost cannot be made a ground to reject the second Adjournment Application and such unpaid cost may be recovered only in execution proceedings.;