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2009 DIGILAW 755 (DEL)

Devraj Mason v. Shanti Devi

2009-07-16

SHIV NARAYAN DHINGRA

body2009
ORDER Shiv Narayan Dhingra, J. CM 8336 OF 2009 1. This application under Section 151 CPC has been made on behalf of petitioners for revival of the instant petition in view of the judgment of the Honble Supreme Court in Municipal Corporation of Delhi v. Harish Chander and Ors. reported in JT 2001 (Supp) 2 SC 205. 2. The petitioner had suffered an eviction order at the hands of learned Additional Rent Controller on 18th July 1991 under Section 14(1)(a) & (b) of the Delhi Rent Control Act (DRC Act). Against this order, the petitioner preferred an appeal before the learned Rent Control Tribunal which was dismissed by the learned RCT on 1st October 1999. The petitioner assailed the appellate Tribunals order by filing a CM (Main) petition being CM(M) 665 of 1999 and petitioner obtained a stay order from this Court in 1999 against the aforesaid order. The CM Main petition was listed for final disposal vide order dated 18th November 2000. The petitioner continued to enjoy the stay throughout and whenever the matter came up for final hearing, it was not argued for one reason or the other. In the meantime, respondent/landlord died and an application to bring Lrs of respondent/landlord on record along with an application for condonation of delay was moved. The matter proceeded on this application and ultimately Lrs were brought on record. The matter again came up for hearing several times on the Board of the Court for final disposal, but it was not argued. On 6th September, 2006, 26th April 2007, none appeared for the petitioner but the matter was not dismissed and kept on board. On 30th April 2007, 1st May, 2007, 7th May, 2007, 2nd July, 2007, requests were made on behalf of the petitioner for adjournment. On 10th July, 2007 counsel for petitioner was not present. Again on 1st August 2007 and 1st July 2008 adjournments were sought on behalf of petitioner when the matter was taken up for final arguments. On 10th November 2008 again none appeared for the petitioner. This Court vide order dated 10th November 2008 dismissed this petition on merits. 3. Counsel for petitioner made an application for recalling the order on the ground that on 10th November 2008, none had appeared for the petitioner when the matter was disposed of. On 10th November 2008 again none appeared for the petitioner. This Court vide order dated 10th November 2008 dismissed this petition on merits. 3. Counsel for petitioner made an application for recalling the order on the ground that on 10th November 2008, none had appeared for the petitioner when the matter was disposed of. This application was heard and when the order on this application was being dictated, the counsel for petitioner made submissions in the Court that the order dated 10th November 2008 be recalled and the petitioner be allowed to withdraw the petition as the petitioner intends to prefer a second appeal against the order of the first appellate court since the law permits the petitioner to prefer a second appeal. This Court although observed that sufficient opportunities had been granted to the petitioner for hearing the petition and no case was made out for recalling the order on the ground of not giving opportunity, but considering the request of the petitioner to withdraw the petition so as to have an opportunity to file second appeal, if permitted by law, allowed the prayer to that extent and recalled the order dated 10th November 2008 and dismissed the petition as withdrawn. Now, the present application has been made by the petitioner submitting that he preferred a second appeal but learnt that the second appeal was not maintainable, therefore, he should be allowed to revive this petition. 4. I consider that the petitioner was playing game with the Court. The petitioner did not appear in the Court whenever the matter was fixed for arguments. Once the matter was disposed of as withdrawn on prayer of the petitioner, the petitioner filed this application for revival on the ground that the petitioner was given wrong advice for filing second appeal. In Smt. Ujjam Bai v. State of Uttar Pradesh and Anr. AIR 1962 SC 1621 : V 49 C 231, the Supreme Court had considered similar situation and observed: No sufficient cause has been made out for allowing the application for restoration. The assessee firm deliberately allowed the appeal, which was pending in this Court, to be dismissed for non-prosecution and after deliberately taking that step it cannot be allowed to get the dismissal set aside on the ground of wrong advice. The application for restoration is therefore dismissed with costs. The assessee firm deliberately allowed the appeal, which was pending in this Court, to be dismissed for non-prosecution and after deliberately taking that step it cannot be allowed to get the dismissal set aside on the ground of wrong advice. The application for restoration is therefore dismissed with costs. Now coming to Civil Appeal No. 572 of 1960, the said appeal was dismissed for non-prosecution by order of this Court dated February 20, 1961. The assessee-firm has filed an application for restoration of the said appeal on the ground that it did not press the appeal in view of the decisions of this Court in (S) : AIR 1957 SC 790 , but as I have said that the said decision is still good law, this ground is not open to the said firm. In the result the application for restoration of Civil Appeal No. 572 of 1960 is dismissed with costs. As regards the application for restoration of the appeals, I am of opinion that the party was negligent in not prosecuting it. I would, therefore, dismiss the application for restoration but without any order about costs. As regards the application to restore the appeal to the file, I do not consider that the request ought to be allowed and for two reasons: Firstly, the applicant having voluntarily withdrawn the appeal I do not see any justification for acceding to this present request. Secondly, if as I have held, the error in the order of the officer was not such as to justify the issue of a writ of certiorari to quash the same the judgment of the High Court under Article 226 was correct and the petitioner would not gain any advantage by the revival of the appeal. In the circumstances I would dismiss the petition for restoration of the appeal. 5. The aforesaid decision of the Supreme Court is of a Bench of Five Judges and in view of this decision of the Supreme Court, I consider that this petition cannot be revived. This application is hereby dismissed with no orders for costs. CM 8337 OF 2009 Since I have dismissed the CM 8336 of 2009, this application has become infructuous and is hereby dismissed as such. Application dismissed.