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2023 DIGILAW 828 (RAJ)

Dhai Devi v. Bhanwar Lal

2023-04-13

DINESH MEHTA

body2023
JUDGMENT : DINESH MEHTA, J. I.A. No. 01/2021:— 1. The present application filed on 07.12.2021, captioned under Section 151 of the Code of Civil Procedure for extension of time for compliance of the order dated 16.05.2019 has come up for consideration of the Court. 2. Mr. Anirudh Purohit, learned counsel for the appellants submitted that appellants have failed to comply with condition No. (ii) of the order dated 16.05.2019 on account of communication gap, inasmuch as the interim order dated 16.05.2019 could not be conveyed to the appellants. 3. He submitted that it was only when the appellants received notice of execution, they realized that they were required to deposit the mesne profit of Rs. 8,000/- per month in the trial Court and the present application seeking extension of time was filed. 4. It was submitted that immediately upon learning of such requirement, the appellants moved an application before the trial Court on 16.05.2022, along with a banker's cheque dated 05.05.2022 in the sum of Rs. 2,88,000/- and requested the trial Court to accept the same and keep the execution proceedings in abeyance. 5. Learned counsel for the appellants submitted that the delay in depositing the arrears of mesne profit was bonafide, while maintaining that the appellants who have been protected by way of interim order would normally not commit such default wilfully. It was asserted that the default was on account of financial constraints, pandemic and circumstances beyond their control. 6. It was prayed by Mr. Purohit that the present application for extension of time be allowed and the period for depositing the amount be extended/modified accordingly. 7. Mr. Thanvi, learned counsel appearing for the respondents submitted that in normal circumstances, he would not have opposed such prayer of the appellants, but in the present case, the facts reveal that the appellants have deliberately not cared to fulfil the requirements of the conditional interim order or have taken the interim order in question casually, inasmuch as having enjoyed the interim order dated 16.05.2019 for about three years, they came into action only on realising that the warrant of possession has been issued. He added that the appellants have offered the amount, fearing that they would be dispossessed by the executing Court. 8. He added that the appellants have offered the amount, fearing that they would be dispossessed by the executing Court. 8. Learned counsel for the respondents argued that no mesne profit had been awarded by the trial Court, hence, the excuse of financial crunch to show the inability to deposit the amount, is baseless. He emphasized that they were supposed to deposit a meagre amount of mesne profit (Rs. 8,000/- per month) in the trial Court, which they failed and hence, no indulgence can be granted to the appellants given that not even once the appellants offered the monthly amount before the trial Court. 9. It was also argued that applicants’ plea that because of financial crunch, they could not deposit the amount is untenable and self - defeating inasmuch as they have deposited a rather huge amount of Rs. 2,88,000/- in one go, when they found that they were about to be dispossessed. 10. Learned counsel further submitted that the appellants had moved the present application on 07.12.2021 (after about 30 months of passing of the interim order) and if the appellants were bonafide and really under financial constraints, they would have moved the application immediately and in such event perhaps the respondents would not have objected to appellants’ prayer. 11. Learned counsel for the respondents expressed his concern about appellants conducts by highlighting the fact that when learned executing Court issued warrant of possession on 13.04.2022, instead of pressing the present application for extension of time, the appellants have chosen to prefer a separate writ petition being S.B. Civil Writ Petition No. 8088/2022 that too without informing the respondents knowing it fully well that their application would be opposed. He submitted hat the respondents were shocked to learn that the appellant have secured an interim order by a co-ordinate Bench of this Court behind the back of the contesting respondents. 12. Without prejudice to above, learned counsel argued that the appellants’ such conduct dis-entitles them from claiming discretionary relief from this Court and prayed that the present application be dismissed. 13. Last, but not the least, it was argued that condition No. 8 of the order dated 16.05.2019 was clear and categorical; on appellants’ failure to comply with any of the conditions mentioned in such order, the interim order dated 16.05.2019 had come to an end automatically. 13. Last, but not the least, it was argued that condition No. 8 of the order dated 16.05.2019 was clear and categorical; on appellants’ failure to comply with any of the conditions mentioned in such order, the interim order dated 16.05.2019 had come to an end automatically. He concluded by submitting that the present application need not even be entertained much less allowed. 14. In rejoinder, Mr. Purohit, learned counsel for the appellants submitted that the applicants/appellants have been pursuing their application bonafidely and all endeavours to get the matter listed were made by mentioning the case before the Bench having roaster, but to the appellants’ dismay the application/matter could neither be heard nor could it be placed before the concerned Court for consideration of the application. 15. Heard learned counsel for the applicants and respondents and perused the record. 16. Before dilating upon the rival contention, it would be apt to reproduce the conditions of the order dated 16.05.2019, which run as under:— “(1) Appellants shall deposit the entire arrears of ‘mesne profit’ awarded by the trial Court on or before 30.06.2019 in the trial Court. (ii) Appellants shall pay ‘mesne profit’ of Rs.8.000/- per month w.e.f. 01.06.2019 on or before 7th day of the next month in the trial Court. First such payment shall be made on or before 07.06.2019. (iii) Upon the amount of para no. (1) above being deposited, the trial Court shall prepare an interest bearing auto renewable FDR of the arrears of mesne profit in some nationalized bank in the name of respondents. (iv) It is also directed that the on completion of every one year, the trial Court shall prepare interest bearing auto renewable FDR of the amount stipulated in para No. (ii) above (Rs. 96,000/-), if deposited by the appellants. (v) The FDR's so prepared be kept in the safe custody. (vi) The fate of the FDR's and their entitlement shall be determined at the time of final decision of the appeal. (vii) The appellants shall neither part with the possession nor bing about any material change in the nature and use of the subject premises. (viii) Needless to observe that the failure to pay any of the abovementioned amounts within the time prescribed, would entail automatic annulment of the order instant. (ix) The stay application stands disposed of accordingly.” 17. (vii) The appellants shall neither part with the possession nor bing about any material change in the nature and use of the subject premises. (viii) Needless to observe that the failure to pay any of the abovementioned amounts within the time prescribed, would entail automatic annulment of the order instant. (ix) The stay application stands disposed of accordingly.” 17. A simple look at the above conditions reveals that as per condition No.(ii) and in light of other terms therein, the appellants were required to deposit Rs. 8,000/- per month with effect from 07.06.2019. Concededly, the appellants have failed to comply with the same. 18. As the facts have unfurled, on 16.05.2019, there was no arrear of mesne profit, because the mesne profit of Rs. 8,000/- has been fixed by this Court firstly, by order dated 16.05.2019. 19. The appellants’ contention that because of the COVID-19 and financial crunch, the appellants could not deposit the amount of mesne profit is a lame excuse, inasmuch as the appellants have not produced any evidence showing the so called financial constraint due to which they were unable to deposit even a meagre sum of Rs. 8,000/- per month. 20. It is to be noted that the order was passed in May, 2019, whereas, the pandemic spread in the month of March, 2020 and the lockdown was imposed from 19.03.2020. 21. The applicants have not placed any documentary evidence or other evidence showing that any of the earning family member was infected by COVID-19 to such an extent that they were unable to pay the monthly mesne profit of Rs. 8,000/- for about 30 months. That apart, pandemic did not continue till May, 2022, when the appellants moved the instant application and even the arrears to the tune of Rs. 2,88,000/- were tendered before the trial Court, whereas while filing the present application, amount was not even offered. 22. The submission made by Mr. Purohit, learned counsel for the applicants that because of the communication gap, the applicants remained unaware of the conditions of interim order is easy to be made, but difficult to be countenanced. It is not the stand of the applicants in the application. Oral submission made contrary to pleadings can not be accepted and the same seems to have been made to evoke sympathy of the Court. 23. It is not the stand of the applicants in the application. Oral submission made contrary to pleadings can not be accepted and the same seems to have been made to evoke sympathy of the Court. 23. Furthermore, this Court is unable to accept this contention of learned counsel, because the appellants, who have suffered a decree of eviction cannot be believed to remain aloof or indifferent and dare not to contact their counsel for 30 months of filing the appeal. It can also not be accepted that the appellants would not collect the interim order that has been passed in their favour. 24. It is, therefore, clear that the applicants/appellants have woke up from their slumber and tendered a cheque of Rs. 2,88,000/- on 05.05.2022 and filed application on 16.05.2022 only after being pressed against the wall, finding their ejectment imminent. 25. That apart, having filed the present application on 07.12.2021, the applicants have not made any serious endeavour to get the matter listed before the concerned Bench, so was the appellants approach qua the second application which was filed on 16.05.2022. 26. Traversing through the record, this Court finds that after December, 2021, the matter has been listed before the coordinate Benches on 14.02.2022, 16.05.2022, 24.05.2022, 25.05.2022, 26.05.2022 and 13.07.2022, but the proceedings of co-ordinate Bench(s) do not reflect that any request was made or directions were sought from the Court for getting the application listed before the concerned Court. 27. Regardless of what has been stated hereinabove, the interim order dated 16.05.2019 was categorical and unambiguous. The condition No.(viii) thereof was peremptory in nature and had the effect of automatic vacation of the order on appellants’ failure to pay any of the amount mentioned in the order under consideration. 28. As a matter of fact, the order dated 16.05.2019 has come to an end per force its condition No.(viii) as the appellants have neglected or failed to adhere to the terms of the order. 29. The application at hand, which has been filed after 30 months of the interim order and after more than 2 years of the same being vacated, cannot be entertained that too, on such vague pleadings and lame excuses. The equity jurisdiction is meant for bonafide litigants and not for careless persons, who despite facing a decree of ejectment do not even contact their counsel. 30. The equity jurisdiction is meant for bonafide litigants and not for careless persons, who despite facing a decree of ejectment do not even contact their counsel. 30. This Court is unable to digest applicants’ arguments that because of financial crunch, they could not deposit the amount, in the face of the fact that the cheque of Rs. 2,88,000/- was got prepared immediately, when they were confronted with a situation of being scooped out. 31. Though, much emphasis has been laid by Mr. Thanvi on the appellants’ conduct of filing fresh writ petition (being S.B. Civil Writ Petition No. 8088/2022) and securing interim order, but this Court does not deem it appropriate to comment upon filing of such writ petition, leaving it open for the Court concerned to consider as to whether in pendency of the present application and subsequent application (No. 2/2022) dated 16.05.2022, in which a prayer to stay execution proceedings was made, the writ petition filed by the appellants was bonafide and competent. 32. As a necessary corollary of the discussion foregoing, the application has to fail, which I hereby do. 33. The present application (I.A. No. 01/2021) dated 07.12.2021 is hereby rejected and it is declared that the interim order passed by this Court on 16.05.2019had come to an end on failure to comply with the condition No.(ii) therein. 34. As an obvious consequence of the dismissal of application (I.A. No. 01/2021), the subsequent applications (I.A. No. 02/2022) filed under the caption of seeking necessary directions has been rendered infructuous. The same is also, thus, dismissed. 35. Resultantly, the stay application filed by the appellants is hereby rejected. 36. List the appeal for hearing.