IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Miscellaneous Appeal No.4797 of 2009. Suresh son of Shri Radhey Shyam VERSUS Govind Narain son of Shri Gangadhar Khatik & Another Date of Judgment :::: 20th January, 2010. Hon'ble Mr. Justice Dalip Singh Mr. R.K. Agarwal, Counsel for the defendant No.1 - Appellant Mr. Ajeet Bhandari, Counsel for the plaintiff No.1 - Respondent Mr. Rajesh Chaturvedi,Counsel for defendant No.2 Respondent *** By the Court :
Heard learned counsel for the parties.
This matter comes up on the application filed by the defendant No.1- appellant under Section 5 of the Limitation Act for condonation of delay in filing the appeal.
In the application, it was submitted by the learned counsel that the delay has occurred only on account of the review petition being filed before the learned trial Court and if the time taken between the filing of the review petition and its decision is excluded the appeal is within time.
This is not disputed.
Having heard the learned counsel for the parties, since these facts are not in dispute, I am inclined to accept the application under Section 5 of the Limitation Act and condone the delay in filing the appeal.
The application is accordingly allowed.
With the consent of both the parties, the appeal itself is taken up for hearing.
The miscellaneous appeal, preferred by defendant No.1-appellant is against the order dated 04.08.2008 by which the learned trial Court accepted the application under Order 9 Rule 13, C.P.C. submitted by the defendant No.2 and rejected the application submitted by the defendant No.1-appellant under Order 9 Rule 13, C.P.C. for setting aside the joint ex-parte decree dated 07.03.2003 for eviction and arrears of rent. During the course of hearing, the grievance, which was raised by the learned counsel for the respondent-landlord was that the landlord has been deprived of the rent by the appellant, who is the tenant in-chief and the defendant No.2 – the sub-tenant, who is enjoying the property and even if the decree passed ex-parte is to be set aside at least the interest of the landlord so far as the rent is concerned should be protected, as even as per the decree dated 07.03.2003 the rent of Rs.1,35,000/- was due to the plaintiff-landlord on the said date. It is submitted that thereafter up-to the month of January 2010 an additional amount/rent of Rs.2,16,000/- (approximately) has become due @ Rs.3000/- per month.
Learned counsel for the defendant No.1 – appellant submitted that the appellant, if permitted, to file his written-statement and contest the suit is willing to deposit an amount of Rs.1,35,000/- and submit a solvent security for the balance amount of Rs.2,16,000/-, but he may be permitted to file his written-statement as the appellant even disputes the position that he is not the tenant in the premises and the liability, which has been assigned to him is erroneous.
With a view to protect the interest of both the sides, it is directed that the ex-parte decree dated 07.03.2003 shall stand set aside on the following conditions :
(i) THAT the appellant shall deposit the rent amount under the decree of Rs.1,35,000/- before the learned trial Court within a period of six-weeks from today,
(ii) THAT in addition to the above, the appellant-defendant No.1 shall also furnish a solvent security before the learned trial Court to its satisfaction for an amount of Rs.2,20,000/- within the aforesaid period of six-weeks,
(iii) THAT on fulfillment of the aforesaid conditions, the appellant shall be permitted to file written-statements within a period of 30-days thereafter and no further time shall be allowed to the appellant for this purpose.
(iv) THAT it is made clear that the appellant shall be entitled to raise all such defences, which the appellant seeks to raise in the suit in written-statement to the plaint only on the fulfillment of the above conditions by the appellant. The fulfillment of the above conditions shall not estop the appellant from challenging and contesting the plaint averments.
(v) THAT the learned trial Court shall proceed to determine the arrears of rent in accordance with Section 13 (3) and pass necessary orders of determination of rent and the liability to pay/deposit of the arrears in accordance with law and for subsequent deposit of rent as per law.
In case, the learned trial Court comes to the prima-facie conclusion that the appellant is liable to make the payment of rent to the plaintiff, the learned trial Court would be at liberty to release the amount, arrears of rent from the amount of Rs.1,35,000/- deposited by the appellant No.1 and for such further amount as is necessary to meet the requirement. The same shall be paid to the plaintiff on the condition that the plaintiff would furnish a solvent security for the restitution of the aforesaid amount only in the event that the appellant raises a plea that he is not tenant in the premises.
Subject to the above, this miscellaneous appeal stands allowed.
The application filed by the appellant No.1-defendant under Order 9 Rule 13, C.P.C. also stands allowed. The decree dated 07.03.2003 subject to the above directions stands set aside.
The parties are directed to appear before the learned trial Court on 15.02.2010, along with a copy of this order.
The miscellaneous appeal as well as stay application stand disposed of as aforesaid. It is made clear that in case the appellant fails to comply, the impugned order shall stand revived.
(Dalip Singh), J.
Ashok/