Kanta Malhotra (Smt. ) Widow of Ramesh Kumar Malhotra v. Lajpat Rai Sethi and Another
2013-03-14
SIBGHAT ULLAH KHAN
body2013
DigiLaw.ai
Sibghat Ullah Khan, J.— Heard Sri A.R. Singh, learned counsel for the tenant applicant and Apurva Hajela, learned counsel for landlords respondents. This revision under Section 25, Provincial Small Causes Court Act is directed against order dated 11.11.2011 passed by J.S.C.C./VII A.D.J., Kanpur Nagar in S.C.C. Suit No.59 of 2010, Sri Lajpat Rai Sethi and others Vs. Smt. Kamta Malhotra. The suit has been filed by the landlord for eviction of the tenant. Property in dispute is a shop, which was allotted to the husband of the tenant applicant. Rate of rent is Rs.265/- per month. Through the impugned order application of the tenant applicant seeking permission for depositing the rent under Order XV Rule 5, C.P.C. and condonation of delay has been rejected. The only ground taken in the application explaining the delay was that the previous counsel of the tenant did not advise her to deposit the rent hence it could not be deposited. Relevant dates are given below: (i) 09.06.2010 - suit filed (ii) 11.07.2010 - defendant tenant appeared through advocate by filing vakalatnama (iii) 01.11.2010 - written statement filed (iv) 20.01.2011 - plaintiff adduced his examination-in-chief on affidavit (v) 22.03.2011 - points for decision framed and 01.04.2011 fixed for cross-examination of the plaintiff (vi) 18.04.2011 - tenant defendant filed application along with tender for depositing the rent. Application for getting the tender passed was filed on 31.10.2011, which was accompanied by affidavit, copy of which is Annexure-4 to the affidavit filed in support of the stay application in this revision. Another application was given on the same date i.e. 31.10.2011 supported by affidavit for condoning the delay copy of which is Annexure-5 to the affidavit. From 18.04.2011 till 31.10.2011 i.e. six and a half months, tenant did not take any steps to get the tender passed which was submitted on 18.04.2011 along with application 41-ga-2. The court below rejected the applications for permission to make deposit and for condonation of delay on the ground that date of first hearing had passed long before. I do not find any error in the impugned order. The tenant applicant was utterly negligent in depositing the rent, which is negligible. Tenant appeared through advocate in July, 2010 and filed application for permission to deposit in October, 2011, i.e. after more than one year and three months. Even the application filed along with the tender was given in April, 2011.
The tenant applicant was utterly negligent in depositing the rent, which is negligible. Tenant appeared through advocate in July, 2010 and filed application for permission to deposit in October, 2011, i.e. after more than one year and three months. Even the application filed along with the tender was given in April, 2011. If a party files an application and does not press it, he cannot take any benefit thereof. Continuance of deposit in proceedings under Section 30 of U.P. Act No.313 of 1972 after receiving notice of termination of tenancy and after filing of suit for eviction is of no value. Learned counsel for the applicant has cited two authorities. One is reported in Rajendra Kumar Verma Vs. Smt. Padma Jindal, 2006 ACJ 1328 and the other in Anil Kumar Jain Vs. Promod Kumar Gupta and others, 2009 (3) AWC 2398 . Both the authorities do not support the applicant. The ground that previous counsel of the applicant Sri Sri C.L. Verma did not advise her to deposit the rent and he died in July, 2011 was bogus. It is mentioned in the impugned order that tender for depositing the rent had been submitted along with application on 18.04.2011 numbered as 41-ga-2 i.e. before the death of Sri Verma. In any case not advising to comply with the provision of law by an advocate can firstly not be believed and secondly is of no help. Every one particularly advocates are supposed to know the law. Accordingly, there is no merit in the revision, hence it is dismissed. _____________