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2012 DIGILAW 1617 (RAJ)

Gwal Das v. Goma Devi

2012-07-24

VINEET KOTHARI

body2012
Hon'ble Dr. KOTHARI, J.—The present second appeal has been filed by the defendant-tenant Gwal Das s/o Dev Das Swami under Section 100 CPC against Smt. Goma Devi w/o Surajmal Swami being aggrieved by the judgment and decree of the first appellate court of learned Addl. District Judge, Bikaner dated 15/11/1995 in Civil Appeal No. 100/85 (Gwal Das vs. Goma Devi) by which the learned appellate court affirmed the decree of eviction granted by the learned trial court of Munsif & Judicial Magistrate, Bikaner on 9/3/1979 in Civil Suit No. 129/1978 (Goma Devi vs. Gwal Das), on the ground of bonafide need of the landlady. 2. The said eviction decree was passed ex-parte by the learned trial court since the defendant tenant, Gwal Das, did not appear before the learned trial court and furnish any written statement nor he appeared in the witness box to defend the eviction suit. However, an application was filed by him under Order 9 Rule 13 CPC soon after the decree for eviction for setting aside the ex-parte decree on 3.4.1979 which came to be rejected by the learned trial court after five years on 19/9/1984. The appeal filed by Gwal Das against that was also rejected by the learned appellate court of Addl. District Judge, Bikaner on 14/10/1992 against which a revision petition being S.B.Civil Revision Petition No. 16/1993 was filed by the defendant Gwal Das before this Court, which is stated to be still pending before this Court in which while admitting the said revision petition, an exparte stay order to the effect that petitioner shall not be evicted from the suit premises was passed on 11.1.1993. Learned counsel for the appellant-defendant-tenant, Mr. L.R.Mehta & Mr. Sajjan Singh submitted that the said ex-parte stay order dated 11/1/1993 was confirmed also till disposal of the revision petition on 27/9/1996. 3. Learned counsel for the appellant-defendant-tenant, Mr. L.R.Mehta & Mr. Sajjan Singh submitted that the said ex-parte stay order dated 11/1/1993 was confirmed also till disposal of the revision petition on 27/9/1996. 3. During the pendency of the said revision petition against the concurrent orders of trial court and appellate court rejecting the application under Order 9 Rule 13 CPC of tenant Gwal Das for setting the ex-parte eviction decree dated 9/3/1979 on the ground that the defendant-tenant acknowledged the receipt of registered AD Post, in which summons of the court were sent to the defendant tenant, Gwal Das by his signatures in Hindi, whereas, it was contended in the application under Order 9 Rule 13 CPC by the defendant tenant that he usually signs in English as was done by him on the said application itself and also on the Vakalatnama. 4. The defendant tenant-Gwal Das, in the meanwhile, also filed regular appeal before the first appellate court under Section 96 of CPC, which was registered as Appeal No. 100/85 and which came to be dismissed on 15/11/1995 and thus, the grievance raised in the present second appeal against that judgment before this Court filed by the defendant tenant was that while the aforesaid civil revision petition No. 16/93 against the dismissal of application under Order 9 Rule 13 CPC was pending before this court, the learned first appellate court below ought not to have decided the pending appeal against eviction decree on 15/11/1995. 5. The following substantial question of law was accordingly framed on 16/1/1996 by the coordinate bench of this Court while admitting the present second appeal, which is required to be decided by this Court:- “Whether the learned appellate court has erred in hearing and deciding the appeal when the matter regarding setting aside of an ex-parte decree under Order 9 Rule 13 CPC was subjudice before this Court?” 6. Shri L.R.Mehta, Mr. Sajjan Singh & and Mr. Shri L.R.Mehta, Mr. Sajjan Singh & and Mr. Durga Ram, learned counsels appearing for the defendant tenant urged that since the matter relating to Order 9 Rule 13 CPC was subjudice before this Court, in which stay was granted against eviction on 11/1/1993, which was also later on confirmed on 27/9/1996, the learned first appellate court ought not to have disposed of the appeal filed by the defendant - Gwal Das under Section 96 CPC on merits on 15/11/1995 because if that application under Order 9 Rule 13 CPC was to be allowed by this Court in revision petition, the decision on said appeal of the defendant tenant on merits would become redundant as exparte eviction decree itself was liable to be set aside. It was, therefore, urged that the aforesaid substantial question of law deserves to be answered in favour of defendant tenant and the impugned order of the first appellate court dated 15/11/1995 deserves to be set aside accordingly. 7. On the other hand, Mr. Sushil Kumar Bishnoi, learned counsel appearing for the respondent-plaintiff vehemently submitted that there was neither any legal impediment nor any other requirement of propriety or otherwise for the appellate court to have waited till the decision of revision petition, which was against the concurrent findings of two courts below & was virtually without any merit since the summons were actually served on the defendant tenant, Gwal Das. Learned counsel for the respondent-plaintiff, Mr. Sushil Bishnoi further submitted that there was no stay on the proceedings of the learned appellate court by the higher court and the stay against eviction granted in revision petition filed by Gwal Das would not restrain the appellate court from deciding the appeal on merits filed by him under Section 96 CPC. He relied on the decision of Hon'ble Supreme Court in the case of Basant Singh & Anr. vs. Roman Catholic Mission – AIR 2002 SC 3557 = RLW 2003(1) SC 46 and para 11 of the said judgment, which is reproduced below for ready reference: “Once it is proved that summons were sent by registered post to a correct and given address, the defendants' own conduct becomes important. Before the Trial Court, the appellants were allowed to lead evidence in support of their contentions. An order to this effect was passed by the Trial Court on 11.1.1991. Before the Trial Court, the appellants were allowed to lead evidence in support of their contentions. An order to this effect was passed by the Trial Court on 11.1.1991. The premises in question is occupied by two defendants jointly - Hari Singh and Basant Singh. Hari Singh appeared and examined himself stating that he did not receive the registered letter. However, the defendant Basant Singh did not appear and no evidence whatsoever, on his behalf, has been led to rebut the presumption in regard to service of summons sent to him under registered post with acknowledgment due. His own conduct shows that the registered summons had been duly served on him. As already noticed, Hari Singh appeared and save and except the bald statement that registered letter was not tendered to him, no evidence whatsoever was led to rebut the presumption. He could have examined the postman, who would have been the material witness and whose evidence would have bearing for proper adjudication. He has failed to discharge the onus cast upon him by the Statute. This apart, it is inherently improbable that the registered summons were duly served on Basant Singh but not to Hari Singh when they occupied the tenanted premises jointly.” As against this, Shri L.R.Mehta relied upon the decision of Allahabad High Court in the case of Nawabzada Mohd. Ishaq Khan vs. The Delhi Iron & Steel Co. Ltd. - AIR 1979 All. 366 , & submitted that it was not necessary for Gwal Das while pursuing his application under Order 9 Rule 13 CPC to produce and examine the postman, who obtained AD purportedly signed by him and his own evidence by way of affidavit being the aggrieved person was sufficient. The said Single Bench judgment of Allahabad High Court obviously cannot be relied upon in view of aforesaid Supreme Court decision cited by learned counsel for the respondent landlady, Mr. Sushil Bishnoi. 8. This Court also perused Ex.A/1 – the AD Receipt in question, which bears the signature of Gwal Das from A to B in Hindi with date 16.10.78. The part A to B of Ex.A/1 reads as under:- “ Xokynkl Date 16.10.78” 9. According to this AD receipt, summons were served on the defendant-tenant-Gwal Das on 16/10/1978. Sushil Bishnoi. 8. This Court also perused Ex.A/1 – the AD Receipt in question, which bears the signature of Gwal Das from A to B in Hindi with date 16.10.78. The part A to B of Ex.A/1 reads as under:- “ Xokynkl Date 16.10.78” 9. According to this AD receipt, summons were served on the defendant-tenant-Gwal Das on 16/10/1978. In the application under Order 9 Rule 13 CPC, however, it was claimed that defendant Gwal Das usually signs in English, even in the affidavit dated 3.4.1979 filed before the learned trial court along with the application under Order 9 Rule 13 CPC, he has signed in English. This Court compared the two signatures, one in English in the affidavit dated 3.4.1979 and another in Hindi in Ex.A/1 from A to B with date 16/10/1978. In the said Hindi signatures accompanying the words, “Date 16.10.78”, the letter capital `D' in the word Date written in English by him and letter capital `D' in his English signatures are identical and same, with same curve and style. In the first blush comparison, the said letter `D' is identical at two places and, therefore, the courts below could not be said to have drawn wrong inference in treating the service of summon effected upon Gwal Das on the basis of acknowledgment given by the Postal Department, Ex.A/1 as sufficient. The said acknowledgment – Ex. A/1 is sufficient proof of service on the defendant tenant – Gwal Das in the eviction suit. Looking to the background of Gwal Das, it cannot be believed that he would sign only in English & not in Hindi also, as done by him on Ex.A/1, AD receipt. Despite service on 16/10/1978, if the defendant tenant did not chose to appear before the learned trial court, it was his choice and the learned trial court was prima facie justified in proceeding ex-parte and for the similar reasons even in dismissing the application under Order 9 Rule 13 CPC. 10. It is made clear that it is only a prima facie satisfaction of this Court and since the revision petition is separately filed by the defendant, which is said to be pending, no firm & conclusive findings are given here and it is left to be decided when such revision petition is finally decided on its merits. 11. 10. It is made clear that it is only a prima facie satisfaction of this Court and since the revision petition is separately filed by the defendant, which is said to be pending, no firm & conclusive findings are given here and it is left to be decided when such revision petition is finally decided on its merits. 11. Irrespective of that, the only substantial question, which was framed in the present second appeal filed by the defendant tenant against the eviction decree passed by the two courts below, this court is of the clear opinion that the said question deserves to be answered in negative and against the appellant-defendant-tenant. 12. The learned first appellate court cannot be said to have erred in hearing and deciding the appeal No. 100/85 (Gwal Das vs. Smt. Goma Devi) on merits during the pendency of the revision petition before this Court, which was filed against the concurrent orders of the two courts below rejecting the application under Order 9 Rule 13 CPC for setting aside of ex-parte eviction decree. Even if the argument of propriety as canvassed by the learned counsels for the appellant-defendant-tenant was to be considered that the appellate court ought to have waited for the fate of the civil revision petition because if such revision petition were to be allowed allowing the application under Order 9 Rule 13 CPC, the appellate court's decision on eviction suit on merits would be an exercise in futility, there is another side of the coin also. The said revision petition is pending in this Court since 1993 and more than 19 years have passed and same has not been decided yet. If the said revision petition is to be dismissed now or even few months or years later, the question equally arises as to why the eviction decree, which the plaintiff deserved much earlier, could not have been granted to her by the first appellate court and even by this Court in the present second appeal. The decision on merits by the lower appellate court, was never restrained by the higher court. The stay granted in civil revision petition only against eviction does not amount to any stay on the proceedings before the lower appellate court. The decision on merits by the lower appellate court, was never restrained by the higher court. The stay granted in civil revision petition only against eviction does not amount to any stay on the proceedings before the lower appellate court. The defendant tenant only chose to file the regular appeal also under Section 96 CPC against the ex-parte eviction decree, even though he was pursuing his application under Order 9 Rule 13 CPC for setting aside the same ex-parte decree against him right upto High Court. It is he who has chosen to ride on two horses by availing two remedies against the same decree and if he falls to the ground, it is his fate & he could not be allowed in these circumstances to make hue and cry and complain. He could have chosen only one course and taken it to logical end but if he has chosen both the remedies, he cannot contend that decision on merits of one remedy should necessarily await the decision of the other. This Court has time and again observed that in frivolous and flimsy cases also the defendant-tenant succeeds practically merely on account of long lapse of time which the long channels of litigation take for the reasons beyond control. In these circumstances, this Court does not find it appropriate to hold that the first appellate court ought to have waited for the decision of civil revision petition filed by the defendant tenant against the concurrent dismissal of his application under Order 9 Rule 13 CPC, whatever be the worth and merit in the said revision petition & should not have decided the regular appeal on its own merits. 13. Consequently, the present second appeal filed by the defendant tenant is found to be devoid of merit and same is accordingly dismissed & the concurrent eviction decree of two courts below on the ground of bonafide need is upheld. 14. 13. Consequently, the present second appeal filed by the defendant tenant is found to be devoid of merit and same is accordingly dismissed & the concurrent eviction decree of two courts below on the ground of bonafide need is upheld. 14. The appellant-defendant-tenant shall hand over the peaceful and vacant possession of the suit property to the respondent-plaintiff (landlady) or her legal representatives taken on record upon her death within a period of six months from today and shall pay mesne profit @ Rs.500/- per month commencing from August, 2012 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent-plaintiff till the vacant possession is handed over to the plaintiff and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The defendant-tenant shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over or mesne profits are not paid to the respondent-plaintiff/ landlady within a period of six months from today, besides execution of the decree in normal course, the respondent-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to the opposite party and learned courts below forthwith. No order as to costs.