Rajasthan High Court - Jaipur
Sita Ram Agarwal vs Smt. Prem Kanta Agarwal on 2 August, 2002
Equivalent citations: 2002(5)WLC224, 2003(3)WLN497
Author: S.K. Keshote
Bench: S.K. Keshote
JUDGMENT S.K. Keshote, J.
1. Heard learned counsel for the parties, perused the revision petition and the record of the suit that out of this petition arises.
2. The plaintiff respondent filed suit for eviction and recovery of arrears of the rent against the defendant petitioner in the Court of Civil Judge (Junior Division) West, Jaipur City, Jaipur on 16.12.1991. The eviction of the defendant petitioner is claimed on the ground of default in payment of rent and reasonable and bonafide necessity of the suit premises.
3. The written statements in the suit is filed on 31.10.1992. Issues are framed on 1.11.1996.
4. The case proceeded for the evidence of plaintiff respondent. On 21.8.1998, the plaintiff has completed his evidence and close the same. As none was present for the defendant petitioner, the Court has ordered to proceed ex-parte against him. The suit was fixed for final arguments on 18.9.1998.
5. On 18.9.1998 neither the defendant nor his counsel was present. The learned trial Court heard the arguments and the suit was fixed for 19.9.1998 for pronouncement of the judgment.
6. From the order sheet dated 19.9.1998 it transpires after drawing of the proceedings on previous date an application was filed by the defendant under Order 9 Rule 7 read with Section 115 CPC. On 19.9.1998 the Court had ordered to give the copy of the application to the counsel for the plaintiff-respondent and the matter was fixed for reply to the application and hearing thereof on 22.9.1998.
7. On 22.9.1998 this application of the defendant-petitioner filed under Order 9 Rule 7 read with Section 115 CPC was rejected.
8. This revision application was presented on 23.12.1998. The defendant-petitioner has challenged the order dated 22.9.1998 of the learned trial Court. The Court fixed the suit for hearing on 24.9.1998 on the request of the defendant-petitioner.
9. The order sheet dated 22.9.1998 speaks that the case was adjourned on the request of the defendant petitioner.
10. On 24.9.1998 an application was filed under Order 9 Rule 7 CPC and prayer was made therein that the order dated 21.8.1998 be recalled and the defendant-petitioner be given opportunity to cross-examine the plaintiff witnesses and to produce his defence. The reply to that application was filed by the plaintiff-petitioner. This application was rejected by the Court below under its order dated 21.1.1999. In this order the date has wrongly been mentioned as 21.8.1999. The order dated 21.1.1999 of the trial Court has not been challenged by the defendant-petitioner.
11. The second application filed by the defendant-petitioner has been rejected, but this fact has not been brought to the notice of the Court either by filing an affidavit or otherwise. This important fact has been concealed by the petitioner from the Court. When this fact has been brought to the notice of the Court during the course of arguments by the counsel for the non-petitioner, the record was called and on perusal thereof what is stated by the counsel for the respondent is found correct. under Section 115 of the CPC it is a discretionary jurisdiction of the Court to entertain the matter or not. Where the litigant does not come before the Court with clean hands or conceal the material facts, it may be a good ground to decline to interfere in the matter and not to grant any relief to that litigant under its discretionary powers. The application filed on 24.9.1998 has been dismissed is irrelevant and immaterial fact in this matter.
12. There is yet another conduct of the defendant-petitioner in the proceedings before the learned trial Court on which also he dis-entitles himself from getting any relief from the Court under its discretionary jurisdiction. The defendant-petitioner is a tenant and he made all the attempts to delay the trial of the suit.
13. The order to proceed ex-parte has been made on 21.8.1998. The matter was fixed on 18.9.1998. During this period no attempt has been made by the petitioner to know the proceedings of the suit and to take the appropriate action for recalling of the order afore-stated. On 18.9.1998 the defendant-petitioner permitted the Court to hear the arguments and the matter was posted for pronouncement of decision on 19.9.1998. Thereafter, this application under Order 9 Ruler 7 read with Section 115 CPC has been filed. This application was rejected on 22.9.1998. The judgment was not pronounced. At that stage the defendant has made a request for adjournment of the matter for hearing the arguments. The learned trial Court fixed the matter on 24.9.1998. That appears to be a trick played by the defendant with the Court which clearly is borne out or can reasonably be inferred from his this conduct of filing an application under Section 151 CPC on 24.9.1999 for the same relief which is prayed in the application filed on 18.9.1998 and rejected on 22.9.1998.
14. In the facts of this case, it is not a fit case where any interference of this Court is called for. Otherwise also having gone through the order dated 22.9.1998 of the trial Court, I am satisfied that it has not committed any illegality muchless any material irregularity in exercise of its jurisdiction in passing the order thereof against the defendant-petitioner.
15. There is yet another ground on which the interference of this Court in the matter is not called for. The order dated 22.9.1998 is only an interlocutory order. This order is not appealable under Section 104 read with Order 43 Rule 1 CPC. It is being an interlocutory order is always subject to correction in the regular appeal to be filed, if necessity arises against the final judgment and decree of the Court below, if it goes adverse to defendant-petitioner. In view of this factual and legal position non-interference in the matter by the Court will not result in occasion of any failure of justice nor it will cause any irreparable injury to the defendant petitioner.
16. As a result of the aforesaid discussions, this revision petition fails and the same is dismissed with costs which quantified to Rs. 2200/-.
17. The dismissal of this revision petition will not come in the way of the defendant-petitioner to challenge this order in the regular appeal if necessity arises to be filed against the final judgment of the Court below. This order may not be taken as if confirming the order dated 22.9.1998 of the Court below on merits. Where the matter is taken up if necessity arises by the plaintiff-defendant in regular appeal the appellate Court to consider the legality, propriety and correctness of this order without having been influenced by any of the observation of finding recorded in this order.
18. The learned trial Court is directed to decide the suit within a period of three months from the date of receipt of the certified copy of this order and the record. The registry is directed to send forthwith the record of the suit to the trial Court.