Rajasthan High Court - Jaipur
Kalu Ram Gupta vs Smt. Laxmi Devi And Anr. on 9 April, 1996
Equivalent citations: 1996(3)WLC300, 1996(1)WLN626
JUDGMENT Arun Madan, J.
1. Heard the learned counsel for the parties and also perused the impugned order dated 21st March, 1996 passed by the Additional District Judge No. 2, Jaipur City, Jaipur in Appeal No. 21/96, whereby the application filed by the petitioner under Section 5 read with Section 14 of the Limitation Act, was rejected by the learned trial court.
2. During the course of hearing it has been contended by the learned counsel for the petitioner that a suit for eviction was filed by the petitioner-defendant before the trial court on the grounds of default, and bonafide necessity of the plaintiffs- respondents under Section 13(1)(a) and 13(1)(h) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter to be referred as 'the Act') since the shop premise was let out to the petitioner in the year 1981 and the suit for eviction was filed on 18th June, 1992 on the above said grounds. Shri Garg, learned counsel for the petitioner has contended that during the course of proceedings before the learned trial court an ex-parte order came to be passed against the petitioner on.26.11.92 and ex-parte decree was drawn up against the petitioner on 23.1.93 and that the petitioner who was represented by a power of attorney before the learned trial court did not inform the petitioner regarding the ex-parte decree and this intimation was conveyed to him belatedly on 16.2.95. As soon as the petitioner became aware of this fact he moved an application under Order 9 Rule 13 CPC for setting aside the ex-parte order before the learned trial court on 17.7.95. The said application was rejected by the trial court against which the petitioner preferred an appeal before the learned District Judge who after hearing the parties rejected the said appeal on 5.10.95. Against the said order rejecting the petitioner application a revision was preferred before this Court vide Civil Revision No. 1247/95 which was rejected on 6.11.95 and this Court granted two months' time to the petitioner to vacate and handover peaceful possession of the suit premises to the respondents-plaintiffs. Being dissatisfied with the said order of this Court Special Leave Petition was preferred by the petitioner before the Hon'ble Supreme Court of India which came up for hearing before the Apex Court on 3rd January, 1996. The Apex Court dismissed the SLP of the petitioner on merits but keeping in view the facts and circumstances of the case the time earlier granted by the High Court for vacating the premises was extended by the Apex Court till 31st March, 1996 on the same terms as laid-down by the High Court.
3. Yet the petitioner was advised to undertake a third round of litigation by filing an appeal before the Appellate Court again as aforesaid before the learned Addl. District Judge, Jaipur City, Jaipur, and alongwith the said appeal the petitioner had also filed an application under Section 5/14 of the Limitation Act for condonation of delay of 3 years and 7 days stating therein the reasons on the ground of which the petitioner could not file the appeal earlier against the ex-parte order and also contending that since he was pursuing other legal remedies before different courts of law, he prayed the Appellate Court to set aside the ex-parte decree under Order 9 Rule 13 CPC, which application of the petitioner was rejected on 21.3.96 against which the present revision petition, has been preferred before this Court.
4. During the course of hearing, learned counsel for the petitioner has placed reliance upon the Judgment of the Apex Court in the matter of Shyamal Kanti Danda v. Chunilal Choudhary . The question which had arisen for consideration before the Apex Court was as to whether the delay of 386 days which had occurred on the part of the petitioner on the ground of having pursued alternative remedies under legal advise could be condoned by the Court of competent jurisdiction? The Apex Court while keeping in view the facts and circumstances of the case directed the petitioner to deposit the due amount on account of occupation charges for the user of the tenanted premises in question within the stipulated time and on the petitioner complying with the said condition condoned the delay in preferring the appeal before the learned District Judge and accordingly permitted the petitioner to participate in the proceedings before the learned Munsiff after setting aside the ex-parte order.
5. Learned counsel for the petitioner has also placed reliance upon the D.B. judgment of this Court in the matter of Batlibai & Co. Ltd. v. Govind Narayan reported in 1981 RLW, 411. In this case similar controversy had arisen and the learned Division Bench of this Court held that a party does not loose its right of appeal if it performs an act in accordance with the order of this Court like giving an undertaking that he will vacate the premises after the period fixed by the Court.
6. I have perused the above judgment of the Apex Court as well as the Division Bench judgment of this Court and in my humble opinion the ratio of the aforesaid decisions is not attracted to the facts of the present case in view of the fact that the controversy involved in the above cases before the Apex Court as well as this Court was quite different. The distinguishing features being that in those cases the question was regarding fulfillment of a particular condition and since the petitioner had fulfilled the particular condition only then the delay was condoned whereas in this case admittedly the petitioner had been pursuing different remedies under the legal advice and was fully aware of the fact that a suit for eviction was filed against him on the grounds of default and bonafide necessity of the respondent-landlord. During the period w.e.f. 18.6.92 to 23.6.93 when the suit was decreed against the petitioner it is impossible to imagine that the petitioner who had been enjoying the tenancy in the shop premises light from the year 1981 could not have been aware or appraised of the fact that an ex-parte order was passed against him by the learned trial court on 18.6.92 and yet he was silent over the matter and did not take immediate steps for setting aside the ex-parte decree of the learned trial court. The significant feature of the case is that the petitioner was duly represented by a power of attorney holder who was supposed to be vigilant and safeguard the interest of the petitioner and in my considered opinion no party should be permitted to sleep over its rights and when the question comes for compliance or execution of the decree, to set up a sham and illusory plea that the party had absolutely no information regarding the ex-parte proceedings as alleged in this case. In my opinion, the law helps the vigilant and not the indolent as is so well settled.
7. The learned counsel for the petitioner has vehemently contended at the bar that the learned appellate court had rejected the appeal without considering the merits of the case and that the delay deserves to be condoned by the appellate court. In my opinion this contention of the learned counsel is not tenable since the petitioner has exhausted all the remedies right upto the Apex Court and there after nothing survives for consideration of this Court in this revision petition particularly when the petitioner had availed yet another remedy of preferring an appeal before the learned District Judge after loosing the special leave petition before the Apex Court. I am further of the opinion that it will be wholly improper for this Court to sit over the judgment of the Apex Court by extending the time as it will be beyond the purview and jurisdiction of this Court.
8. As a result of the above discussion there is no merit in this revision petition and the same is according rejected. The petitioner is directed to handover vacant and peaceful possession of the suit premises to the repondents without any delay. The decree shall be executed forthwith and the respondents should be restored with peaceful and vacant possession of the suit premises immediately. At this stage Shri Garg, learned counsel for the petitioner states that he may be granted some time to go in appeal against this order to the Apex Court. The aforesaid request of Shri Garg is declined. No order as to costs.