Court No.7
Civil Misc. Writ Petition No.11806 of 2007
Smt. Sumitra Jain & others vs. Sri Rajnish Kumar & others.
.............
Hon'ble Devendra Pratap Singh,J.
1. Respondent no.1 is represented by Sri K.L.Grover and Sri Ramesh
Singh. The service on the other respondents is sufficient as is evident from
the affidavit filed on 12th of February 2009 but no one has entered
appearance on their behalf. However, their interest is common with that of
respondent no.1 who is contesting the case.
2. Heard learned counsel for the petitioner and Sri Ramesh Singh for
the respondents.
3. This petition is directed against an order dated 23rd of January 2007
passed in a revision setting aside the order of the trial court dated 26th of
August 2006 rejecting an application for condonation of delay.
4. Brief facts are that the landlord petitioner instituted a Small Causes
Court Suit no.25 of 1994 against the respondent tenant claiming arrears of
rent and eviction. After filing written statement, the tenants absented
themselves and therefore an order for exparte hearing was passed on 11th of
February 2003 whereafter the suit was decreed on 31st August 2003. The
landlord put the decree in execution through execution case no.27 of 2004
where registered notices were served on the respondents in January 2005
whereafter an application under Order 9 Rule 13 C.P.C. alongwith an
application for condonation of delay was filed on 19th January 2006. After
contest the Court refused to condone the delay vide order dated 26.8.2006
which was subjected to challenge in revision which has been allowed by the
impugned order and the issue on condonation of delay has been remanded
for reconsideration.
5. It is urged on behalf of the petitioner that the revisional court erred
in allowing the revision on the facts of this case without even setting aside
the findings recorded so far as the service of summons in the execution case
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are concerned.
6. It is no doubt true that the Courts generally lean in favour of giving
hearing to the parties and liberal in condoning delay, but it is also correct
that there should be some reasonable ground and truthfulness in support of
a plea for recall of an exparte order or for condoning the delay. Invariably
the background of the case offers a good barometer in such cases.
7. The eviction suit was filed on 4th of March 1994 with the allegation
that the tenants were in arrears of rent from Ist of March 1987. After filing
of the written statement, the tenants firstly absented themselves leading to
the passing of an order of exparte hearing on Ist of March 2001 but the
application for recall was made after about 11 months and the order was
recalled on 11th of April 2002. But yet again, subsequently, the tenants
absented on four consecutive dates leading to the passing of another
exparte order on 11th of February 2003 and the exparte decree on 31st of
March 2003. It appears that either the tenants were oblivious of the
message that an old proverb “once bitten twice shy” conveys or in fact their
disappearance from the proceedings was justified and grounds given were
truthful.
8. The Court, to verify the truthfulness of the grounds for absence is
purposely ignoring plea of wife’s illness, death of son and the misleading
attitude of the brother, but presently is confining itself only to the facts
which stand proved on the record.
9. In the recall and condonation applications, the tenants have stated
that they came to know about the exparte decree and execution on 18th of
January 2006 and immediately on the next date they filed the two
applications. The petitioner in his objection denied it and added that the
registered summons in the execution case was served on the tenants in
January 2005. The trial court, which also happens to be the executing
court, after examining the records of the execution case, found as a matter
of fact that the notices in the execution case were duly served upon them in
January 2005. Neither in the two applications nor in the grounds of
revision or even in the counter affidavit filed before this Court, the tenants
have disclosed the source of knowledge about the exparte decree or
execution proceedings. There is not even a wishper how they came to know
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about it on 18th of January 2006. In fact they did not even challenge the
findings of the trial court on this aspect in the grounds of revision. These
facts which are proven on the record totally blast their truthfulness. Should
the Court lean in their favour?
10. More than 26 years have expired since the filing of the suit, should
the Court force the plaintiffs to wait for eternity or till his death so that a
recalcitrant tenant has an opportunity which he himself floundered ? Sense
of justice says, yes, but only when he is truthfull, because justice invariably
has to be even handed. It has to lean against falsehood and in favour of
truth.
11. It is obvious that the averment that they came to know about the
exparte decree and the filing of the execution case on 18.1.2006 is based on
falsehood. Justice to be even handed will have to lean against it.
12. Let us now examine the judgment of remand.
13. The revisional court has not set aside the finding that the execution
notices were served on the tenants but only on the ground that there was a
bald denial of the tenant, it has remanded the issue with the comment that
it was subject to evidence I Firstly, all the evidence was there on the record.
Secondly, the tenants did not challenge this finding in the grounds of
revision nor they set up any plea that the address was wrong, the
endorsement was false etc. etc. Even before this Court, there is only a bald
denial. At the cost of repetition, it may be reiterated that throughout the
case of the petitioner landlords was that the tenants were duly served with
registered AD notices in the execution case and so also is the case in the
present writ petition. It is stated in paragraph 21 that both the respondent
nos. 1 and 2 were duly served and the postal receipts were also filed, the
paragraph runs as under :
“That the trial court also recorded the findings that both the
applicants had knowledge in as much as both of them were duly served
in execution case no.27/2004 in the month of January 2005. The
photostat copy of postal receipts served upon the respondent no.1 and 2
are being filed herewith and marked as Annexure 7 to this writ
petition.”
14. The respondents in their reply have conveniently been vague as they
have been throughout the proceedings. They have replied to the said
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paragraph in the following paragraph 19 of the counter affidavit filed in
this Court :
“That in reply to the contents of paragraph 21 of the writ
petition it is submitted that the findings recorded by the trial court are
perverse and against the material on record. It is also denied that
respondents had knowledge and they were duly served in execution
case.”
15. The Court after commenting upon the fact that so far as service in the
execution case is concerned, that could be decided on the basis of evidence
but it goes on to hold that so far as illness of the wife and son’s death is
concerned, it is proved from the record and therefore he allowed the
revision on the ground that the trial court has not considered the
documentary evidence on record while passing the order. However,
nothing has been disclosed in the two applications about the nature of the
illness of his wife or the exact period when she was so ill that he could not
prosecute his case before the Court. Further, admittedly the son died only
after the exparte decree but again the cause and nature of his death and the
exact date of his death was never disclosed nor it is mentioned in the
revisional order and in the two applications.
16. For the reasons above, this petition succeeds and is allowed and the
order dated 23.1.2007 is quashed and the order of the trial court is
restored.
17. In the circumstances of the case, no order as to cost.
Dated: 02.4.2010.
PKG/