Punjab-Haryana High Court
State Of Punjab And Another vs Rajinder Jain And Another on 4 March, 2011
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CM No.9305-CII-2010 in -1-
CR No. 6956 of 2009
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CM No.9305-CII-2010 in
CR No. 6956 of 2009
Date of Decision: 04.03.2011
State of Punjab and another
. . .Petitioners
Versus
Rajinder Jain and another
. . . Respondents
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CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Mr.Sanjeev Sharma, Advocate,
for the applicants/respondents.
Mr.Ram Lal Gupta, Addl. A.G. Punjab,
for the non-applicants/petitioners.
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RAKESH KUMAR JAIN, J.
A short but interesting question involved in this case is "as to whether an application not argued / pressed at the time of disposal / decision of the main case remains alive and could be revived by a separate application or it is deemed to have been declined / rejected as not pressed?"
In brief, the tenant/State of Punjab filed Civil Revision No.6956 of 2009 to challenge the orders of the Courts below by which it has been ordered to be evicted from the demised premises. At the time of notice of motion dated 27.11.2009, tenant's dispossession was stayed subject to deposit of arrears of rent, if any, within one month from the date of order and future rent by 10th of every calendar month. Prior to the date of hearing, the landlord filed two applications, both dated 15.12.2009 i.e. (i) CM No.29779-CII-2009 for preponment of date of hearing; (ii) CM No.29780-CII-2009 for determining the mesne profit w.e.f. 11.8.2008 till date with further direction to the tenant to pay arrears of property tax from 2004-2005 till date with interest.CM No.9305-CII-2010 in -2- CR No. 6956 of 2009
On 21.12.2009, the first application i.e. CM No.29779-CII-2009 was dismissed whereas in the second application CM No.29780-CII-2009 notice was issued to the tenant for 24.2.2010.
On 24.02.2010, two applications were listed before the Court (i) CM No.4564-CII-2010 for seeking exemption from filing certified / original / typed copies of record; (ii) CM No.4565-CII-2010 for vacation of order of stay dated 27.11.2009 due to non-compliance of order by the tenants.
CM No.4564-CII-2010 was allowed as prayed and CM No.4565-CII- 2010 was adjourned with a direction to the tenant to file affidavit to show whether order dated 27.11.2009 was complied with or not. The case was ordered to be listed on 3.3.2010.
On the adjourned day, again two applications were listed (i) CM No.5265-CII-2010 in CM No.4565-CII-2010. CM No.5265-CII-2010 was allowed and reply was taken on record whereas in CM No.4565-CII-2010 the landlord made a suggestion that the tenant may be asked as to whether he would like to vacate the tenanted premises in a particular time. If yes, he would not press the execution application otherwise the case would be argued on merits. The case was adjourned for 17.3.2010. On that day, the main case was argued and the order was reserved. It is pertinent to mention that since 21.12.2009 when notice was issued in CM No.29780-CII-2009, learned counsel for the landlord did not press the said application in the subsequent proceedings recorded by the Court.
On 26.3.2010, order in the Civil Revision was pronounced. It was dismissed on merits. Tenant was granted one year time to vacate the demised premises from the date of order.
Thereafter, the landlord filed an application i.e. CM No.9305-CII- 2010 under Section 151 of the Code of Civil Procedure, 1908 (for short 'CPC') for disposal / decision on CM No.29780-CII-2009. The said application was listed on 6.5.2010 in which notice was issued to the tenant for 17.5.2010. On that day, learned counsel for the landlord sought time to place documents on record and the counsel for the tenant also stated that he would seek instructions as to whether any similar premises has been obtained by the tenant on tenancy in that very area. The case was adjourned for 24.5.2010.
On 24.5.2010, again two applications were listed purported to have been filed by the landlord (i) CM No.13774-CII-2010 seeking exemption from CM No.9305-CII-2010 in -3- CR No. 6956 of 2009 filing certified / original / typed / photocopies of Annexures R-2 to R-4; (ii) CM No.13775-CII-2010 seeking permission to place on record Annexure R-2 to R-4.
CM No.13774-CII-2010 was allowed as prayed for and CM No.13775-CII-2010 was allowed subject to all just exceptions. The main case was adjourned as counsel for the tenant showed his reluctance to appear due to personal reasons. On 28.5.2010, counsel for the landlord submitted that Court may fix any reasonable amount payable as mesne profit. It was agreed between the parties that if counsel for the tenant is unable to get positive instructions in that regard then the case would be argued on merits. On one of the adjourned date i.e. 14.10.2010, it transpired that the tenant sought time to seek instruction to find out the prevailing market rent so that mesne profit could be fixed. On 18.1.2011, learned counsel for the tenant had argued that the landlord waived off his right to contest this application on merits because the application already on record if not pressed is deemed to have been disposed of and cannot be revived by another application. He sought adjournment for making submissions, which was granted. The tenant also filed CM No.18306-CII-2010 for filing reply to the application CM No.9305-CII-2010, the number of which find mentioned in the order dated 18.1.2011.
In the meantime, an unfortunate fire broke in the High Court in which record of some Civil Revisions was burnt including the present case. Learned counsel for the landlord, on the oral request of the Court, supplied Photostat copy of the present record along with the zimini orders in his possession on the basis of which the case is being decided.
The arguments in the CM No.9305-CII-2010 were heard on 21.2.2011 and the order was reserved.
Since, there is no order available on record about CM No.18306-CII- 2010 by which reply to the application CM No.9305-CII-2010 has been filed, therefore, the said CM No.18306-CII-2010 is hereby allowed and reply to CM No.9305-CII-2010 is taken on record.
Opening his submissions, learned counsel for the landlord has argued that the revision was filed by the tenant against the order of eviction and application CM No.29780-CII-2009 for mesne profit, which is sought to be revived by present CM No.9305-CII-2010 filed by the landlord, has to be separately decided even if the main revision petition has been dismissed and cannot be deemed to have been finally disposed of. He also submits that once this CM No.9305-CII-2010 in -4- CR No. 6956 of 2009 Court had taken cognizance on the present application and issued notice, it has to be taken into consideration and cannot be summarily rejected. He also alleged that the order by which cognizance was taken on the present application was never challenged and as such CM No.29780-CII-2009 cannot be deemed to have been disposed of and can be revived by present application. He, however, did not cite any precedent in support of any of his submissions.
On the other hand, learned counsel for the tenant/non-applicant has submitted that the application CM No.29780-CII-2009 was admittedly not pressed by the landlord at the time of argument of the main Civil Revision, therefore, it is deemed to have been rejected / disposed of. He has also referred to the averments made in para No.5 and 6 of the present application i.e. CM No.9305-CII-2010 in which counsel for the applicant / landlord has categorically stated that he totally forgot to argue the application CM No.29780-CII-2009 and the whole onus for not arguing the said application is on him. He also draws the attention of the Court to the reply filed with CM No.18306-CII-2010 in which question of maintainability of the present application has been raised. In support of his submissions, he has relied upon judgments in the cases of "Dr.Sanjay G. Khemuka Vs. The State of Maharashtra and others" AIR 2004 Bombay 245, "Gaya Prasad Bhoi and another Vs. Loknath Budhia Bhoi and another" AIR 1996 Orissa 44, "Jaspal alias Jaswant Singh and others Vs. State of Haryana and others" 2002(1) PLR 684, "Rocky Tyres Vs. Ajit Jain" 1998(3) PLR 53, "Ramchandra Dagdu Sonavane (dead) by LRs & Ors Vs. Vithu Hira Mahar (dead) by LRs and others" AIR 2010 Supreme Court 818.
I have heard both the learned counsel for the parties and have perused the available record.
Undisputedly, landlord had filed CM No.29780-CII-2009 in which notice was issued to the tenant but it was not pressed till the main case was argued on merits and the judgment was reserved. Admittedly, the said application for mesne profit was not argued by the counsel for the landlord, who alleged to have forgotten and has owned the responsibility. Till the main revision petition was finally argued, the landlord was more interested in vacation of order of stay granted by the revisional Court for the non-compliance of conditions and for getting the premises vacated by allowing time to the tenant, which is evident from the zimini orders dated 24.2.2010 and 3.3.2010. The question is thus, whether the CM No.9305-CII-2010 in -5- CR No. 6956 of 2009 counsel for the landlord had really forgotten to press the application for mesne profit or it was not deliberately pursued.
To my mind, the tenant was more concerned at that time with the dismissal of the revision petition in which stay was operating otherwise he would have definitely pursued the application for mesne profit in which notice was already issued. He appears to have become emboldened after the dismissal of the revision of the tenant to press the application for mesne profit under a false pretext that it was the fault of his counsel, who had forgotten to argue the said application. Even if it is presumed that the application for mesne profit was not pressed by the counsel for the landlord, who allegedly forgot to press it and has owned the entire responsibility and even if the landlord has not decided to proceed against his Advocate for his fault or has condoned the deficiency of service on his part, the question, which is framed in the beginning of this order, is still to be answered. The cognizance taken by this Court on the present application in which notice was issued and some proceedings have taken place thereafter would not clothe the landlord with a right for revival of the application for mesne profit as tenant has not waived off his right to contest the application on merits much less its maintainability.
Referring to the judgments relied upon by the tenant, in the case of Dr.Sanjay G. Khemuka (supra) it was observed that the doctrine of res judicata needs to be considered from another point of view keeping in view that where relief is claimed in the petition, the same must be deemed to have been denied when it is not granted by the Court and it was not open for the parties to such proceedings to re-agitate or re-open the said issue in another proceedings before the same Court. In the case of Gaya Prasad Bhoi and another (Supra) an application was filed seeking two reliefs namely, revocation of certificate under Section 383 and grant of certificate under Section 372 of the Indian Secession Act, 1925 but while dismissing the petition no finding was recorded on the prayer for grant of certificate, it was observed that if the prayer is combined one and prayer for grant of certificate has not been considered specifically, the only conclusion possible is that prayer has been rejected. In the case of Jaspal alias Jaswant Singh and others (Supra) it is observed that relief, which was specifically prayed though was not expressly granted, is deemed to have been declined. In the case of Rocky Tyres (Supra) it was held that if a contention is not actually raised would CM No.9305-CII-2010 in -6- CR No. 6956 of 2009 be deemed to have been raised and rejected. It is also observed therein that what sought to be pleaded and argued by the party while challenging an order is the discretion of the party but all points available would be deemed to have been considered by the Court while disposing of such matters. Finally, in the case of Ramchandra Dagdu Sonavane (dead) by LRs & Ors (Supra) it was held that when any matter which might and ought to have been made in defence or attack in a former proceedings but was not so made, then such a matter in the eyes of law, to avoid multiplicity of litigation and to bring about the finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided.
Thus, in my considered opinion, the application CM No.29780-CII- 2009 was deemed to have been decided as not pressed by the revisional Court when the main revision petition was disposed of and cannot be revived by another application. Hence, the present application is found to be devoid of any merit and as such is hereby dismissed.
(RAKESH KUMAR JAIN)
MARCH 04, 2011 JUDGE
Vivek