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2010 DIGILAW 614 (ALL)

Saleemuddin v. D. J.

2010-02-16

DEVENDRA PRATAP SINGH

body2010
JUDGMENT Hon'ble Devendra Pratap Singh,J. Heard learned counsel for the petitioner and perused the record. 2. The respondent landlord filed Suit No. 50 of 1996 on the basis of default for eviction of the petitioner and for arrears of rent. 3. It appears that after entering appearance the petitioner tenant was granted time for filing written statement but no written statement was filed even after expiry of two years when an order was passed on 26.2.1998 for proceeding ex parte against the petitioner fixing 1.4.1998. On 1.4.1998 the petitioner appeared along with an application for recall of the order to proceed ex parte which was allowed and 28.4.1998 was fixed for hearing. On 28.4.1998 the petitioner again moved an application for adjournment which was rejected and 16.7.1998 was fixed for ex parte hearing. The ex parte hearing could not be concluded and again an application for recall of the said order was filed which was rejected vide order dated 18.12.1998 and 6.1.1999 was fixed for ex parte hearing. On 13.1.1999 the petitioner again made an application for recall of the order dated 18.12.1998 which was rejected vide order dated 8.2.1999. Against the said order he preferred a revision which was dismissed noticing all the facts vide order dated 19.3.1999. 4. While entertaining this writ petition a learned Single Judge of this Court passed the following order on 27.3.1999: "Issue notice to respondent nos. 3 to 5 by personal service and by registered posts. Steps be taken by petitioner for dasti summon within a week from today. List this matter for admission on 10th May, 1999. For a period of four months from today further proceeding in the suit no. 50 of 1996 shall remain stayed. The petitioner shall file a certified copy of this order before the Judge Small Causes Court, Ghaziabad after serving a certified copy of this order on the counsel for respondent nos. 3 to 5. It will be open to respondents to file an application for proposing the date of hearing of the case. On the next date the petitioner shall file affidavit to the effect that he has filed a copy of order after serving it on the counsel for respondents no. 3 to 5. The petition shall also annexe, along with the affidavit, the copy of written statement which is to be filed in the proceeding. On the next date the petitioner shall file affidavit to the effect that he has filed a copy of order after serving it on the counsel for respondents no. 3 to 5. The petition shall also annexe, along with the affidavit, the copy of written statement which is to be filed in the proceeding. In absence of any of these things the aforementioned writ petition shall be dismissed." However, the said order does not appear to have been complied as there is an office report dated 4.2.2010 that no such affidavit annexing the proposed written statement has been filed. Learned counsel for the petitioner has also failed to produce the receipt of the service filing of the affidavit. Further, when the matter was taken up on 18.7.2008 the following order was passed: "This is tenant's writ petition. Eviction has been stayed through interim order. Supreme Court in Carona Ltd. Vs. M/s Parvathy Swaminathan and sonc, AIR 2008 SC 187 (Para-45) and R.K. Shukla Vs. Sudhrist Narain Anand, 2008 (2) A.R.C. 613 (Para-17) has held that equitable relief under Article 136 of the Constitution of India cannot be granted to a tenant appellant, who has not paid rent/mesne profit particularly during the pendency of appeal. Same principle will apply to writ jurisdiction, which is also equitable relief. If the petitioner behaves in an unjust manner (by not paying the rent), then he is not entitled to equitable relief under Article 226/227 of Constitution of India even though impugned judgments may be erroneous in law. Accordingly, list peremptorily on 6.8.2008. 5. On the next date, an affidavit must be filed by or on behalf of petitioner to show the position of payment/deposit of rent up to date along with documentary evidence, i.e. rent receipt, money order coupon or tender failing which writ petition would be dismissed on the ground of non-payment of rent alone." 6. In pursuance thereof, a supplementary affidavit dated 3.8.2008 has been filed stating that the rent of the shop in dispute for the period between August, 2007 and December, 2007 was deposited vide challan dated 5.9.2007. It is also averred from the record that rent for the period January, 2008 to June, 2008 was also deposited on 18.1.2008 and rent from July, 2008 to December, 2008 was deposited on 26.7.2008. It is also averred from the record that rent for the period January, 2008 to June, 2008 was also deposited on 18.1.2008 and rent from July, 2008 to December, 2008 was deposited on 26.7.2008. There is absolutely no evidence or averment to show that rent for the disputed shop for the period April, 1999 till August, 2007 has been deposited. It is apparent that the petitioner is only interested in prolonging the pendency without complying with the orders dated 27.3.1999 and 18.7.2008 and has not even paid the rent due for the period April, 1999 to July, 2007. 7. Thus, the Court declines to exercise its extraordinary power under Article 226 of the Constitution of India. 8. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.