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2019 DIGILAW 453 (JK)

Onkar Singh v. Ashok Wardhan

2019-10-16

RAJESH BINDAL

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JUDGMENT : 1. Appellant has approached this court impugning the order dated 28.02.2013 passed by the learned Court below whereby application filed by him under Order 41 Rule 19 CPC for readmission of the appeal, was dismissed. 2. Learned counsel for the petitioner submitted that non appearance of the counsel for the appellant on the date when the appeal was taken up for hearing by the learned Court below was not intentional as the father of the appellant was not keeping good health and in March 2012 he suffered a paralytic stroke. Entire family was busy in taking care of him. The appellant was also under depression. As a result, he could not contact his counsel and know the progress of the case. Even the counsel did not inform him. After recovering from the illness when he contacted the counsel, he was informed in September 2012 that the appeal had been dismissed in default. Under mistaken advice, application for restoration was filed though there was no such provision. However, after withdrawal of the same, application for readmission of the appeal was filed. 3. It was further submitted that the petitioner was not going to gain anything by not appearing before the Court as it was a highly contested litigation whereby the respondent had sought eviction of the petitioner from the shop in dispute on flimsy grounds. In appeal the judgment and decree of the trial court had been stayed. That itself shows that there was, prima facie, merit in the appeal. All what the petitioner is praying for is that the appeal be directed to be readmitted, while setting aside the order passed by the learned Court below and the petitioner be heard on merits. 4. On the other hand, learned counsel for the respondent submitted that he is being harassed by the petitioner for the last 28 years. Ever since the suit was filed for eviction, the petitioner is playing the game of hide and seek. He was able to ensure that the suit for eviction itself remained pending for more than 17 years. All the issues were decided in favour of the respondent. The petitioner very well knew about the pendency of the suit but still choose not to contest the same. Even appeal filed by him was also dismissed for non prosecution. He was able to ensure that the suit for eviction itself remained pending for more than 17 years. All the issues were decided in favour of the respondent. The petitioner very well knew about the pendency of the suit but still choose not to contest the same. Even appeal filed by him was also dismissed for non prosecution. The grounds sought to be raised by the petitioner for seeking condonation of huge delay in filing application for readmission of the appeal are not tenable. There is no material produced on record to justify the same even if earlier conduct of the petitioner is ignored though same certainly deserves consideration. In fact in the execution filed by the respondent the possession of the shop in question has already been delivered to him way-back on 09.03.2013. Hence, nothing survives in the present petition at this stage. It is merely a luxury litigation. 5. Heard learned counsels for the parties and perused the paper book. 6. Some of the important dates and the proceedings which had taken place in the matter at trial and appellate stage, are summed up hereunder : 9.9.1992 Suit for ejectment was filed by the respondent against the petitioner. 04.04.1997 The petitioner/tenant was proceeded against ex-parte. 14.10.1997 After the evidence of the plaintiff was closed and the case was fixed for arguments application for setting aside of ex-parte order was filed. 16.09.2000 Application for setting aside of ex-parte order was allowed. 24.10.2002 The petitioner/tenant was proceeded against ex-parte. 13.03.2003 Application was filed by the petitioner/tenant for setting aside ex-parte order. As the petitioner/tenant failed to put in appearance before the Court, the application for setting aside the ex-parte order was dismissed in default. 31.12.2009 The aforesaid suit was decreed, directing ejectment of the petitioner from the shop in dispute. 20.08.2010 Though the time to file appeal against judgment and decree of the trial court is 30 days and despite having knowledge of the pendency of the suit for eviction, the petitioner/tenant filed the appeal after a delay of 142 days. 09.01.2012 The aforesaid appeal was dismissed in default. 01.10.2012 Application was filed for readmission of the appeal filed under Order 41 Rule 19 CPC along with application seeking condonation of appeal. 28.02.2013 The aforesaid application was dismissed by the learned Court below. 03.06.2010 Execution application filed. 09.03.2013 Possession of the shop in question delivered to the decree holder. 7. 09.01.2012 The aforesaid appeal was dismissed in default. 01.10.2012 Application was filed for readmission of the appeal filed under Order 41 Rule 19 CPC along with application seeking condonation of appeal. 28.02.2013 The aforesaid application was dismissed by the learned Court below. 03.06.2010 Execution application filed. 09.03.2013 Possession of the shop in question delivered to the decree holder. 7. A perusal of the aforesaid table shows that repeatedly at different stages of the case, the petitioner/tenant had been taking the litigation in question at his own convenience. Twice he was proceeded against ex-parte before the trial court. As a result a simple suit for eviction remained pending for 17 years. Even application for setting aside the ex-parte order filed when he was proceeded against ex-parte second time, was also dismissed in default. As a result finally the ex-parte decree of eviction was passed. The fact cannot be denied that the petitioner was in knowledge of the proceedings pending against him. Still he slept over the matter. Appeal was filed on 20.08.2010 nearly 8 months after the passing of the ex-parte decree. The learned Appellate Court was considerate enough as the delay in filing thereof was condoned and as claimed by the petitioner even judgment and decree of the trial court was stayed. However, still the intention of the petitioner was to delay the proceedings. He stopped appearance in the appeal and on 09.01.2012, the appeal was dismissed for non prosecution. Though it is sought to be claimed that under the mistaken advice the petitioner had filed an application seeking restoration of the appeal, however, there are no details forthcoming as to when such an application was filed and when the same was withdrawn. The fact remains that the application for readmission of the appeal was filed on 06.11.2012. During the interregnum the respondent/decree holder was delivered possession of the shop in dispute. Hence, the decree stands satisfied. 8. The contention raised by learned counsel for the petitioner while placing reliance upon judgment of the Madras High Court in Sumitra Bai v. V.G. Shyamsundar, (1992) 1 MLJ 595 is totally misconceived. In the case in hand, the conduct of the petitioner is such that it does not deserve any concession by the Court. In fact the petitioner had been misusing the magnanimity of the Court. In the case in hand, the conduct of the petitioner is such that it does not deserve any concession by the Court. In fact the petitioner had been misusing the magnanimity of the Court. On every occasion the Court had been considerate but every aspect has a limit and the petitioner crossed the same. The Court will not come to the rescue of such a person who misuses the process of Court. The case in hand is a glaring example of the same. The petitioner did not allow a simple suit for eviction to be decided for 17 years. 9. To take care of such type of litigants, especially the tenants, who used to contest litigation at the cost of the land lord, Hon'ble the Supreme Court in Atma Ram Properties Private Limited v. Federal Motors Private Limited, (2005) 1 SCC 705 opined that in case a tenant is in appeal against an order or eviction, for any stay in appeal, he will be liable to pay damages for use and occupation of the premises which are close to the market rent. It was to balance the equities as a landlord is deprived of fruits of the decree passed in his favour only because tenant is able to take benefit of large pendency of cases. The relevant observations are extracted below : “4. ....... Landlord-tenant litigation constitutes a large chunk of litigation pending in the courts and tribunals. The litigation goes on for unreasonable length of time and the tenants in possession of the premises do not miss any opportunity of filing appeals or revisions so long as they can thereby afford to perpetuate the life of litigation and continue in occupation of the premises. The litigation goes on for unreasonable length of time and the tenants in possession of the premises do not miss any opportunity of filing appeals or revisions so long as they can thereby afford to perpetuate the life of litigation and continue in occupation of the premises. If the plea raised by the learned Senior Counsel for the respondent was to be accepted, the tenant, in spite of having lost at the end, does not lose anything and rather stands to gain as he has enjoyed the use and occupation of the premises, earned as well a lot from the premises if they are non-residential in nature and all that he is held liable to pay is damages for use and occupation at the same rate at which he would have paid even otherwise by way of rent and a little amount of costs which is generally insignificant.” The conclusions in the above said judgment were summed up as under: “(1) While passing an order of stay under Rule 5 of Order 41 of the Code of Civil Procedure, 1908, the appellate court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably compensate the decree-holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed and insofar as those proceedings are concerned. Such terms, needless to say, shall be reasonable. (2) In case of premises governed by the provisions of the Delhi Rent Control Act, 1958, in view of the definition of tenant contained in clause (l) of Section 2 of the Act, the tenancy does not stand terminated merely by its termination under the general law; it terminates with the passing of the decree for eviction. With effect from the date, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree.” 10. No doubt every litigant has to be heard on merits. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree.” 10. No doubt every litigant has to be heard on merits. But the conduct of the petitioner in the case is hand is such that despite repeated opportunities afforded to him his only effort was to, somehow or the other, delay the process instead of contesting the litigation on merits. Apparently, he knew the merits of his case. Past conduct of any litigant is always relevant for consideration of his prayer. 11. Even otherwise, the grounds mentioned in the application seeking readmission of appeal, in an application filed after 11 months of the dismissal of the appeal in default, was like a gospel truth as no material was produced to show that for the entire period the petitioner was unable to follow up his case. 12. For the reasons mentioned above, I do not find any merit in the present appeal. The same is accordingly dismissed.