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2021 DIGILAW 397 (RAJ)

Himanshu v. Lrs Of Poonam Chand

2021-02-16

ARUN BHANSALI

body2021
JUDGMENT 1. The matter comes upon an application filed by the appellant for modification in order dated 25.8.2020 passed by this Court. 2. The present appeal was filed by the appellant aggrieved against judgment and decree dated 3.10.2019 passed by Additional District Judge No.2, Abu Road, District Sirohi, where by, the suit filed by the plaintiff for eviction, arrears of rent and damages was allowed. 3. When the appeal came up before the Court for admission on 25.8.2020, after hearing the parties, this Court inter alia passed the following order:- "Heard learned counsel for the parties. Admit. Issue notice. Mr. Rishabh Purohit, learned counsel appears for the respondent Nos. 1/1 to 1/5. Issue notice to respondent No.2 only. Heard on stay application. During pendency of the appeal, execution of the impugned judgment & decree dated 03.10.2019 shall remain stayed subject to the appellant depositing the amount of mesne profit as directed by the trial court within a period of two months. Besides deposit of amount of mesne profit till the period 31.08.2020, the appellant would be required to deposit a sum of Rs.1500/- per month w.e.f. 01.09.2020. The amount be deposited by 15th of each subsequent month. The amount of arrears of mesne profit as decreed by the trial court and month to month amount be deposited in the saving bank account of the respondent No.1. The particulars whereof be supplied by learned counsel for the respondents to learned counsel for the appellant within a period of ten days. On failure to deposit the amount of mesne profit as decreed by the trial court or three consecutive failure in depositing the monthly amount of mesne profit, interim order granted by this Court shall stand vacated automatically without reference to the Court. The stay application stands disposed of." 4. Whereafter, on 13.1.2021, an application seeking extension of the interim order granted by the Court was filed by the appellant with the prayer that the interim order be extended for appropriate time and the order dated 5.12.2020 passed by the Executing Court be quashed and set aside. 5. The application was responded to by learned counsel for the respondents. 6. Whereafter, on 13.1.2021, an application seeking extension of the interim order granted by the Court was filed by the appellant with the prayer that the interim order be extended for appropriate time and the order dated 5.12.2020 passed by the Executing Court be quashed and set aside. 5. The application was responded to by learned counsel for the respondents. 6. Whereafter, when the matter came up before a Coordinate Bench of this court on 1.2.2021, learned counsel for the appellant did not press the application for extension of stay order dated 25.8.2020 and sought liberty to file an appropriate application for the redressal of his grievances. Based on the said submission, the application for extension of time was dismissed. 7. In the present application seeking modification in order dated 25.8.2020, it is indicated that appellant's economic condition is very poor, he was not able to pay the mesne profit in terms of order dated 25.8.2020, his wife was also ill at that time and that the applicant did not intentionally disobeyed the directions of the Court and would follow the same strictly in future and, therefore, the order dated 25.8.2020 be modified and the order dated 5.12.2020 be quashed and set aside. 8. Learned counsel for the applicant made submissions that though the directions given by the Court on 25.8.2020 were specific providing for deposit of the amount of arrears and month to month mesne profit and consequences on failure to do so, however, the applicant could not deposit the amount of arrears in time and even the amount of month to month mesne profit also could not be deposited in time and, therefore, earlier the application for extending the interim order was filed and now the same may be modified. 9. Submissions have also been made that on account of failure to deposit the amount within the time granted by the Court, the Executing Court on 5.12.2020 has ordered for issuance of warrant of possession and, therefore, appropriate order in this regard may also be passed. 10. Learned counsel for the respondents vehemently opposed the submissions. 9. Submissions have also been made that on account of failure to deposit the amount within the time granted by the Court, the Executing Court on 5.12.2020 has ordered for issuance of warrant of possession and, therefore, appropriate order in this regard may also be passed. 10. Learned counsel for the respondents vehemently opposed the submissions. It was submitted that the appellant was required to deposit the amount of arrears of mesne profit within a period of two months from the date of passing of the order i.e. by 25.10.2020, however, he chose not to deposit the said amount within the stipulated period, did not move any application seeking extension of time before expiry of the said period, deposited the arrears on 7.12.2020 and, therefore, the interim order granted by this Court on account of the default clause indicated in the order, came to an end automatically. 11. Submissions have been made that the plea pertaining to illness of appellant's wife is per se made up ground, inasmuch as, the documents filed with the earlier application only shows that all the prescriptions are after the expiry of the time granted by the Court. 12. Further submissions have been made that the present application is also wholly cursory and does not make out any case for grant of indulgence by this Court and the same deserves to be dismissed. 13. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 14. The directions contained in order dated 25.8.2020 were very specific, wherein, the appellant was required to deposit the arrears of mesne profit as decreed by the trial court within a period of two months and it was further stipulated that on three consecutive failures in depositing monthly amount of mesne profit, the interim order granted shall stand vacated automatically. 15. It is not the case of the appellant that he was not aware of the order. 15. It is not the case of the appellant that he was not aware of the order. Admittedly, when the needful was not done / could not be done by the applicant within the stipulated period, he could very well have approached the Court seeking extension of time granted by the Court, however, he chose not to move any appropriate application seeking extension of time and on his own deposited the amount on 7.12.2020 that also apparently after the Executing Court ordered for issuance of warrant of possession on 5.12.2020, prior to which, the notice in the execution proceedings had already been served on the applicant. 16. The conduct of the appellant is writ large on record, wherein, despite specific directions issued by the Court qua deposit of arrears of rent and deposit of mesne profit, he apparently did not care to follow the directions given by the Court and only when the warrant of possession was issued by the Executing Court, has chosen to deposit the amount. 17. The plea raised pertaining to the purported illness of appellant's wife, as submitted by learned counsel for the respondents, also indicates that all the prescriptions are subsequent to passing of the period during which the appellant was required to deposit the amount and as such the falling back on the illness of appellant's wife for non-payment within the stipulated period, also cannot be countenanced. 18. In view of the above fact situation, wherein, apparently, the appellant has chosen not to follow the directions issued by this Court and no reason whatsoever is forthcoming in the present application seeking modification of the order, no case is made out. The application (I.A. No.2/2021) is, therefore, dismissed.