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2014 DIGILAW 3567 (ALL)

Sanjeev Tyagi v. Kamlesh Kumar

2014-12-01

RAN VIJAI SINGH

body2014
JUDGMENT Ran Vijai Singh, J. Heard Sri Sushil Kumar Shukla, learned counsel for the petitioner. 2. This writ petition has been filed for issuing a writ of certiorari quashing the orders dated 9.9.2011 passed by the Additional District Judge, Court No. 2, Ghaziabad in SCC Suit No. 11 of 2007 (Smt. Kamlesh Kumari and another Vs. Sanjeev Tyagi) as well as the order dated 13.4.2012 passed by the same learned Judge. 3. Vide order dated 9.9.2011, suit filed by the respondents has been decreed. Whereas by the subsequent order dated 13.4.2012, the petitioner's application, filed under Order 9, Rule 13 of Code of Civil Procedure (in short 'C.P.C.') along an application to condone the delay under Section 5 of Limitation Act, has been rejected. 4. The facts giving rise to this case are that the respondents herein have filed suit for eviction of the petitioner on the ground of default in payment of rent and damages etc. The suit was numbered as SCC Suit No.11 of 2007. In the aforesaid suit, the petitioner, herein, has appeared before the court and filed his written statement and admitted the tenancy. After exchange of pleadings, three issues were framed by the Judge Small Causes Court. (i) As to whether there is any default in payment of rent by the defendant (the petitioner). (ii) As to whether the relation of landlord and tenant exist in between the parties. (iii) The relief to which plaintiff is entitled for. 5. All the issues were decided in favour of the plaintiffs (the respondents) holding the petitioner to be defaulter in payment of rent and existence of relation ship of landlord and tenant in between the parties. 6. The suit was decided exparte. Seeking recall of this order, application no. 49 Ga was filed under Order IX, Rule 13 of C.P.C., which was allowed on payment of Rs. 400/-cost with the direction to deposit the cost within seven days. The petitioner neither deposited the cost nor appeared before the court on several dates, therefore on 27.8.2011 the right of defendant's (the petitioner) argument has been closed and 9.9.2011 was fixed for judgment. On that date, the court has decreed the suit. 7. Challenging the aforesaid judgment, Civil Misc. Writ Petition No. 57956 of 2011 (Sanjeev Tyagi Vs. A.D.J., Court No. 2, Ghazibad) was filed, which was dismissed by this Court. On that date, the court has decreed the suit. 7. Challenging the aforesaid judgment, Civil Misc. Writ Petition No. 57956 of 2011 (Sanjeev Tyagi Vs. A.D.J., Court No. 2, Ghazibad) was filed, which was dismissed by this Court. Thereafter the petitioner has filed Revision No. 568 of 2011 before this Court against the judgment and decree dated 9.9.2011. The revision too was dismissed. 8. Prior to that, the petitioner has filed a review application no. 49469 of 2012 seeking review of the judgment passed in the writ court, that too has been dismissed. Now after this round was over, it is stated that the petitioner has been advised to file an application under Order IX, Rule 13 of C.P.C. for setting aside the exparte decree along with an application under Section 5 of Limitation Act to condone the delay in filing the application. The court below, after hearing counsel for the petitioner, has rejected the petitioner's application on the ground that the application is not maintainable for the simple reason that the revision against the decree has already been filed and that has been dismissed by this Court. 9. Sri Shukla, learned counsel appearing for the petitioner submits that the petitioner is semi-literate person and he has been victimized because of the wrong legal advice. In his submissions, the petitioner never sat idle and has been pursuing the remedy as per legal advice may be not the proper remedy as the petitioner was dependent on the skill of the counsel. 10. Be that as it may, since the petitioner's revision against the judgment and decree dated 9.9.2011 passed by the Judge Small Causes Court in SCC Suit No. 11 of 2007 has been dismissed by this Court, I find no error in the impugned judgments in which it has been held that the application, after dismissal of the revision, is not maintainable. Apart from this, this writ petition suffers from laches by two years ,132 days. No good ground is made out to interfere with the impugned orders. 11. The writ petition lacks merit and it is hereby dismissed.