Punjab-Haryana High Court
Gian Chand vs Balbir Kumar Etc. on 10 March, 1994
Equivalent citations: (1994)107PLR240
Author: Harjit Singh Bedi
Bench: Harjit Singh Bedi
JUDGMENT Harjit Singh Bedi, J.
1. The present Civil Miscellaneous Application has been filed Under Section 151 of the Code of Civil Procedure, at the instance of the tenant, for setting aside of the judgment passed in Civil Revision No. 1847 of 1980, by which the revision petition filed by the landlord petitioner had been accepted and the eviction of the respondent tenant ordered.
2. The facts leading to the present application are given hereunder :-
The demised premises was rented out to the tenant way back in 1962. The landlord filed an application for the eviction of the tenant on various grounds. This application was allowed and the Rent Controller found that the demised premises were liable to be got vacated from the tenant on the grounds set out in the ejectment application. The judgment of the Rent Controller was, however, reversed by the Appellate Authority, with the result that the ejectment application stood rejected. As already indicated, the revision petition filed by the landlord was accepted by this Court vide order dated December 27, 1993 and the ejectment of the applicant-tenant has been ordered but two months' time was given to him to vacate the premises in dispute provided the entire arrears of rent due up to date were cleared and the advance rent also paid for the subsequent two months and an undertaking filed by the tenant before the Rent Controller to vacate the premises on the expiry of the aforesaid period. It appears that in pursuance of this order, the applicant Gian Chand, who had become the tenant on the death of Kaka Ram, his father the original tenant, filed an undertaking before the Rent Controller on January 3, 1994in which he undertook to vacate the premises in dispute within two months in the eventuality of his being unable to secure a stay order form the Supreme Court. The applicant, thereafter filed Special Leave Petition (Civil/II) No. 457 of 1994 in the Supreme Court, but the same was dismissed vide order Annexure P-2 dated February 11, 1994. Their order is reproduced below:-
"We see no ground to interfere with the impugned judgment of the High Court. The Special Leave Petition is dismissed.
The Learned Counsel appearing for the petitioner, however, states that after the death of the tenant, the legal representatives of the tenant, who were brought on record, were not served and the order was passed in their absence; The petitioner may, if so advised, approach the High Court."
3. The applicant has now in accordance with the terms of the second part of the order filed the present application, seeking review primarily on the ground that the original tenant Kaka Ram, father of the present applicant died on July 28, 1989, and vide Civil Miscellaneous Application No. 5732-C.II of 1989 moved at the instance of the landlord, the legal representatives of the deceased had been impleaded vide order dated September 1, 1989 but despite this facts, no notice had been served on them with the result that they had not been heard at the time of disposal of the Civil Revision by this Court and the judgment was non'est and not binding on them. Mr. J.N. Kaushal, learned counsel appearing for the applicant in support of his plea that this Court has inherent powers to review an order in the interest of justice, more particularly in a case where a party had not been heard, has placed reliance on Shivdeo Singh and Ors. v. State of Punjab and Ors., A.I.R. 1963 S.C. 1909.
4. In the reply filed on behalf of the petitioner, the positive stand taken is that as the revision petition had been argued at length by one of the eminent senior counsel of this Court and that as the Supreme Court having found no ground to interfere with the judgment had dismissed the Special Leave Petition, there was no occasion to review the same. It has also been submitted in the course of arguments by Mr. M.L. Sarin, learned senior counsel appearing for the respondents that as per the Punjab High Court Amendment made to Order 22 Rule 4 of the Code of Civil procedure, the mailer could have been decided even without impleading the legal representatives and as no prejudice has been suffered by the applicant, the matter having been adequately argued, no ground for selling aside the judgment of the High Court was made out. It has lastly been urged that once the tenant had given an undertaking to vacate the premises in pursuance to the order of the High Court subject to his right to move the Supreme Court, it was not open to him to challenge the correctness of the judgment of this Court. Reliance has been placed upon R.N. Gosain v. Yash Pal Dhir," (1993-2) P.L.R. 184 (S.C.) for this assertion.
5. I have heard the learned counsel for the parties at length and have also gone through the relevant record and the judgments cited before me and find that there is no merit in the application.
6. It will be seen from the order dated February 11, 1994, that the Supreme Court found no ground to interfere in the judgment of this Court and, accordingly, dismissed the Special Leave Petition. It is conceded before me (and also reflected in the Supreme Court order) that one of the grounds of attack in the Special Leave Petition was that Gian Chand applicant, who though impleaded in the revision petition had not been served with the notice thereof and, accordingly, not heard, hut the Supreme Court nevertheless did not choose to interfere. Mr. Kaushal's reliance on the second part of the order to contend that review was to follow more or less as a matter of course as the applicant had not been heard, is mis-conceived in the light of the admitted facts that the Supreme Court despite being aware of the situation did not yet choose to interfere. The judgment in Shivdeo's case (supra) relied upon by Mr. Kaushal does not support his case on facts. The only issue before the Supreme Court was as to whether the High Court could in the exercise of its inherent powers, review an order made in exercise of the writ jurisdiction under Article 226 of the Constitution and this matter was decided in affirmative. This judgment cannot help the applicant as the judgment of this Court has been finally Upheld by the Supreme Court in the Special Leave Petition.
7. There is also a positive merit in the stand of Mr. Sarin that in view of the Punjab Amendment made to Order 22 by incorporating Rules 2A and 2-B after Rule 2 and substituting Sub-rule (3) to Rule 4 and also be inserting Sub Rules (4)(5) and (6) thereto, the duty now rests on the legal representatives of the deceased to implcad themselves and not on the person who is dominus lites and that if a decree has been passed against a deceased-defendant, a person claiming to be his legal representative may apply for setting aside of the decree qua him and if it is found that he was not aware of the decree or that he had not intentionally failed to make an application to bring himself on the record, the Court shall set aside the decree upon such terms as to costs or otherwise as it thinks fit but with the stipulation that before setting aside (he decree, the Court must he satisfied prima facie that had the legal representatives been on the record, a different result might have been reached in the suit. He has urged on this basis that even assuming that the legal representatives of Kaka Ram deceased-tenant had not been served, even then the case could proceed and the judgment would be liable to be set aside only if the Court was satisfied that the judgment was prima facie wrong. On facts, it has been urged by Mr. Sarin that it has not been slated in the application for review that the applicant was not aware of the litigation pending in this Court and as a matter of fact, the speed with which the undertaking was given before the Rent Controller in pursuance of the judgment of this Court and under which the applicant moved the Supreme Court in the Special Leave Petition, was indicative of the fact that he was all along aware of the litigation.
8. I have heard the learned counsel for (he parties on this aspect as well. A reading of the various provisions of Order 22 referred to above clearly show that though the duly was cast on the legal representatives of the deceased-tenant to get themselves impleaded as his legal representatives, yet this duly had, infact, been carried out by the petitioner-landlord by filing a Civil Misc. Application. Even otherwise, it appears to me that the applicant was fully aware of the litigation pending in this Court as even in his application for review, he has not .stated that he was not aware of the proceedings and this is further supported by (he fact that in compliance with the order of this Court, the undertaking was duly filed within a period of 5 days from the date of the order of the Court and the SLP was filed well in lime. There is yet another hurdle which stares the applicant and that is that if the judgment is to be set aside, the Court must be satisfied that a different result would have ensued, had the legal representatives been heard. 1 am of the view that this opinion prima facie cannot be recorded in the present case for the simple reason that the Supreme Court has upheld the judgment impugned and found no ground to interfere with it.
9. The final argument of Mr. Sarin that the tenant-applicant having given an undertaking to vacate the premises subject to his right to move the Supreme Court, he was not enlitled to challenge the judgment of the High Court, also appears to be correct in the light of R.N. Gosain's case (Supra). The Supreme Court while dismissing a Special Leave Petition filed by the tenant observed as under:-
"Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage, and then turn round and say it is void for the purpose of securing some other advantage."
The Apex Court further held that the tenant having given an undertaking in pursuance of the direction of the High Courts and having availed protection from eviction on the basis of the said undertaking could be permitted to invoke the jurisdiction of this Court under Art. 136 of the Constitution and assail the said judgment. It is, therefore, clear that not only the Special Leave Petition was liable to be dismissed in the light of this judgment but even the present application for review was not maintainable.
10. For the reasons recorded above, the present application is dismissed with no order as to costs and a direction is issued to the applicant to comply with the undertaking already given by him and to vacate the premises in dispute forthwith.