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2010 DIGILAW 1098 (ALL)

Sumitra Jain v. Sri Rajnish Kumar

2010-04-02

DEVENDRA PRATAP SINGH

body2010
JUDGMENT 1. Respondent no.1 is represented by Sri K.L.Grover and Sri Ramesh Singh. The service on the other respondents is sufficient as is evident from the affidavit filed on 12th of February 2009 but no one has entered appearance on their behalf. However, their interest is common with that of respondent no.1 who is contesting the case. 2. Heard learned counsel for the petitioner and Sri Ramesh Singh for the respondents. 3. This petition is directed against an order dated 23rd of January 2007 passed in a revision setting aside the order of the trial court dated 26th of August 2006 rejecting an application for condonation of delay. 4. Brief facts are that the landlord petitioner instituted a Small Causes Court Suit no.25 of 1994 against the respondent tenant claiming arrears of rent and eviction. After filing written statement, the tenants absented themselves and therefore an order for exparte hearing was passed on 11th of February 2003 whereafter the suit was decreed on 31st August 2003. The landlord put the decree in execution through execution case no.27 of 2004 where registered notices were served on the respondents in January 2005 whereafter an application under Order 9 Rule 13 C.P.C. alongwith an application for condonation of delay was filed on 19th January 2006. After contest the Court refused to condone the delay vide order dated 26.8.2006 which was subjected to challenge in revision which has been allowed by the impugned order and the issue on condonation of delay has been remanded for reconsideration. 5. It is urged on behalf of the petitioner that the revisional court erred in allowing the revision on the facts of this case without even setting aside the findings recorded so far as the service of summons in the execution case are concerned. 6. It is no doubt true that the Courts generally lean in favour of giving hearing to the parties and liberal in condoning delay, but it is also correct that there should be some reasonable ground and truthfulness in support of a plea for recall of an exparte order or for condoning the delay. Invariably the background of the case offers a good barometer in such cases. 7. The eviction suit was filed on 4th of March 1994 with the allegation that the tenants were in arrears of rent from Ist of March 1987. Invariably the background of the case offers a good barometer in such cases. 7. The eviction suit was filed on 4th of March 1994 with the allegation that the tenants were in arrears of rent from Ist of March 1987. After filing of the written statement, the tenants firstly absented themselves leading to the passing of an order of exparte hearing on Ist of March 2001 but the application for recall was made after about 11 months and the order was recalled on 11th of April 2002. But yet again, subsequently, the tenants absented on four consecutive dates leading to the passing of another exparte order on 11th of February 2003 and the exparte decree on 31st of March 2003. It appears that either the tenants were oblivious of the message that an old proverb "once bitten twice shy" conveys or in fact their disappearance from the proceedings was justified and grounds given were truthful. 8. The Court, to verify the truthfulness of the grounds for absence is purposely ignoring plea of wife's illness, death of son and the misleading attitude of the brother, but presently is confining itself only to the facts which stand proved on the record. 9. In the recall and condonation applications, the tenants have stated that they came to know about the exparte decree and execution on 18th of January 2006 and immediately on the next date they filed the two applications. The petitioner in his objection denied it and added that the registered summons in the execution case was served on the tenants in January 2005. The trial court, which also happens to be the executing court, after examining the records of the execution case, found as a matter of fact that the notices in the execution case were duly served upon them in January 2005. Neither in the two applications nor in the grounds of revision or even in the counter affidavit filed before this Court, the tenants have disclosed the source of knowledge about the exparte decree or execution proceedings. There is not even a wishper how they came to know about it on 18th of January 2006. In fact they did not even challenge the findings of the trial court on this aspect in the grounds of revision. These facts which are proven on the record totally blast their truthfulness. Should the Court lean in their favour? 10. There is not even a wishper how they came to know about it on 18th of January 2006. In fact they did not even challenge the findings of the trial court on this aspect in the grounds of revision. These facts which are proven on the record totally blast their truthfulness. Should the Court lean in their favour? 10. More than 26 years have expired since the filing of the suit, should the Court force the plaintiffs to wait for eternity or till his death so that a recalcitrant tenant has an opportunity which he himself floundered ? Sense of justice says, yes, but only when he is truthfull, because justice invariably has to be even handed. It has to lean against falsehood and in favour of truth. 11. It is obvious that the averment that they came to know about the exparte decree and the filing of the execution case on 18.1.2006 is based on falsehood. Justice to be even handed will have to lean against it. 12. Let us now examine the judgment of remand. 13. The Revisional Court has not set aside the finding that the execution notices were served on the tenants but only on the ground that there was a bald denial of the tenant, it has remanded the issue with the comment that it was subject to evidence I Firstly, all the evidence was there on the record. Secondly, the tenants did not challenge this finding in the grounds of revision nor they set up any plea that the address was wrong, the endorsement was false etc. etc. Even before this Court, there is only a bald denial. At the cost of repetition, it may be reiterated that throughout the case of the petitioner landlords was that the tenants were duly served with registered AD notices in the execution case and so also is the case in the present writ petition. It is stated in paragraph 21 that both the respondent nos. 1 and 2 were duly served and the postal receipts were also filed, the paragraph runs as under : "That the trial court also recorded the findings that both the applicants had knowledge in as much as both of them were duly served in execution case no.27/2004 in the month of January 2005. 1 and 2 were duly served and the postal receipts were also filed, the paragraph runs as under : "That the trial court also recorded the findings that both the applicants had knowledge in as much as both of them were duly served in execution case no.27/2004 in the month of January 2005. The photostat copy of postal receipts served upon the respondent no.1 and 2 are being filed herewith and marked as Annexure 7 to this writ petition." 14. The respondents in their reply have conveniently been vague as they have been throughout the proceedings. They have replied to the said paragraph in the following paragraph 19 of the counter affidavit filed in this Court : "That in reply to the contents of paragraph 21 of the writ petition it is submitted that the findings recorded by the trial court are perverse and against the material on record. It is also denied that respondents had knowledge and they were duly served in execution case." 15. The Court after commenting upon the fact that so far as service in the execution case is concerned, that could be decided on the basis of evidence but it goes on to hold that so far as illness of the wife and son's death is concerned, it is proved from the record and therefore he allowed the revision on the ground that the trial court has not considered the documentary evidence on record while passing the order. However, nothing has been disclosed in the two applications about the nature of the illness of his wife or the exact period when she was so ill that he could not prosecute his case before the Court. Further, admittedly the son died only after the exparte decree but again the cause and nature of his death and the exact date of his death was never disclosed nor it is mentioned in the revisional order and in the two applications. 16. For the reasons above, this petition succeeds and is allowed and the order dated 23.1.2007 is quashed and the order of the trial court is restored. 17. In the circumstances of the case, no order as to cost.