JUDGMENT
Anil Dev Singh, J.
(1) This is an appeal against the order of the learned single Judge dated September 29,1995. whereby the applications filed by the defendants for recall of the order dated September 28,1994 by virtue of which Ia 8012 of 1992 for setting aside the ex parte decree dated March 4, 1992 and Ia 10593 of 1992 seeking stay of the execution proceedings, were dismissed for want of prosecution. The facts necessary for the disposal of the appeal are as follows:
(2) The respondent is an owner of Flat No.6H on the 6th floor of a building known as “Hansalaya” situated on 15, Barakhamba Road, New Delhi. The premises were taken on lease by the appellant, a partnership firm, at a monthly rental of Rs.7782.50, with effect from May 16,1977 for five years. However, the lease deed was executed between the parties on February 13, 1981. According to the lease deed the lease was renewable for a further term of five years. This was as per sub clause (b) of clause 4 of the lease deed. The said clause reads as under: =”4 It is hereby mutually agreed by and between the parties hereto as follows : a) x x x x x x x x x x b) If the lessee is desirous of not renewing this Lease on the expiration of the term of five years hereby granted and of its such desire shall give to the Lesser at lease one calender month’s prior written notice in this behalf before the expiration of the said term, otherwise the Lesser shall grant a renewed lease to the lessee in respect of the demised premises for a further period of five years commencing from the expiration of the said period of five years hereby granted on the same terms and conditions as are herein contained except the provision for deposits and that the increase in rent for such renewed period has been settled by mutual consent of the parties at 10% of the monthly rent hereby reserved”.
(3) On February 3, 1990 the respondent through its solicitors gave a notice to the appellant terminating the lease with effect from the expiry of the month of the tenancy viz March 15,1990. By this notice the appellant was called upon to hand over the vacant possession of the premises to the respondent on March 15, 1990. The notice also stated that should the appellant consider its month of tenancy to be different it may consider the notice as terminating on the expiry of such month of tenancy next commencing after the tender of the notice to it. The appellant through its attorney replied to the notice on February 14,1990, stating that as per the agreement the tenancy was for a period of five years with effect from May 16,1987. Accordingly it declined to vacate the premises. Thereafter, on May 14,1990 the respondent filed a suit inter alia, for ejectment of the appellant from the premises in question and for mesne profits.The stand of the respondent as disclosed from the plaint was that the premises were leased to the appellant for a period of five years commencing from May 16,1977 and the lease stood expired on the close of May 16,1982 by efflux of time. From that date, the tenancy was from month to month commencing from 17th of each calender month and ending on the close of 16th of each succeeding English calender month. It was contended that, assuming that the lease was deemed to have been renewed in terms of clause 4(b) of the lease deed, even then the lease stood determined on the close of May 16,1987 and accordingly since May 16,1987 the appellant was a monthly tenant. It was further stated that the tenancy having been terminated by a notice dated February 3, 1990 with effect from March 15, 1990, the respondent was entitled to a decree of ejectment and to compensation for use and occupation of the premises by the appellant. In answer to the plaint, the appellant filed its written statement claiming, inter alia, that the tenancy was not from month to month. It was further asserted that the period of lease stood extended up to May 15, 1992. In view of the stand taken by the appellant in its written statement, the respondent moved an application under Order 12 Rule 6 Civil Procedure Code (IA No.11857 of 1991) on November 16,1991. The application was listed before the court on November 18,1991, when notice was directed to the defendant and was made returnable on January 7,1992 though matter was shown in the cause list for that date. On January 7,1992 no one appeared on behalf of the respondent despite service. The matter was however renotified for March 4, 1992. Again on March 4, 1992 no body appeared on behalf of the defendant and the application was heard and diposed of in absence of the appellant in the following manner:. “IA11857/91 in Suit No. 1612/90″ No one appears for the defendant. No one appeared on their behalf of November 18,1991 either. Since no one is appearing in the matter despite of notice I have no option but to proceed with the hearing of the application. It is the case of the plaintiff that the defendant was granted lease of the premises, namely Flat No. 6-M floor, Hanaslaya, 15, Barakhamba Road, New Delhi for a period of five years commencing from May 16,1977 at the monthly rental of Rs.7,782.50. According to the plaintiff the period of lease came to an end on May 16,1982 by efflux of time. In the written statement it is averred that the defendant had the option to extent the lease for a further period of five years and the same was duly extended up to May 15, 1992. Thus it is clear that the lease of the defendant will expire on May 15, 1992. In view of the admission of the defendant the suit of the plaintiff is decreed to the extent that the defendant will vacate the premises on expiry of the current period of lease viz. on May 15, 1992. With regard to the remaining reliefs the suit will continue. It will be open to the learned counsel for the plaintiff to file affidavits by way of evidence with regard to the other questions.Let the affidavits be filed on or before the next date. List the matter on August 11, 1992.IA stands disposed of”.
(4) As is apparent the suit was decreed to the extent that the defendant-appellant will vacate the premises on May 15, 1992. This was on the basis that the current lease was extended to May 15, 1992 having commenced on May 16,1987. On April 3, 1992 the appellant moved an application, (IA No.8012 of 1992) for recall of the order dated March 4, 1992 inter alia on the ground that it had engaged a new lawyer for conducting the suit who had no notice of the application (IA No. 11857 of 1991). It was also asserted that neither the appellant was served nor its counsel looking after the matter received any notice or summons or intimation about the application. The appellant moved another application dated July 29,1992 (IA No.10593 of 1992) praying for stay of the suit and execution proceedings. These two applications were also dismissed by the learned single Judge on September 28,1994 for non-prosecution. The learned single Judge noted that the defendant (appellant herein) did not appear in the suit on September 20,1993, November 1, 1993, February 23, 1994,May 6.1994 and September 28,1994. Thereafter the appellant moved two applications (IA No.1405 of 1995 in Suit No.1612/90 and E.A. No.61/95 in Ex. No.136 of 1992) (i) for recalling the order dated September 28,1994 and for restoration of Ia Nos.10593 of 1992 and 8012/92 in Suit No.1612 of 1992 and (2) praying for recall of the warrant of possession issued in terms of the order dated January 23, 1995 and to stay the proceedings in execution. These two applications were also dismissed by the learned single Judge after hearing the learned counsel for the parties on both the sides by a detailed order dated September 29,1995. It is this order which has been challenged by the appellant before us.
(5) The main contention of the appellant is that the absence of the appellant on the aforesaid dates was neither intentional nor deliberate. It was contended that the execution applications were directed to be listed Along with suit and counsel had been appearing in the Execution case only under the impression that both the suit and the execution application were to be taken together. In support of this submission, orders dated August 23, 1993 and September 20,1993 in execution No.136 of 1992 were cited. These orders read as follows: “23.8.93:Present : Shri V.N.Kaura for the plaintiff. Shri Rajesh Manchanda for the defendant. Ex.136 of 1992 List this execution Along with the main suit No.1612/90, which I am informed is fixed for 20th September, 1993”. 20.9.1993 Present: Mr.Abhinav Vashisht for the decree-holder. Mr.R.Chabra for counsel for the judgment debtor. List on 6th January,1993. On that date Suit No.1612/90 should also be listed Along with this execution.
(6) Learned single Judge noted that though the aforesaid orders were made in execution case for listing the Execution petition with the suit, it was not so listed and while the Execution was posted in court on January 6, 1994, March 25,1994, April 22, 1994 and August 25,1994 the suit file was posted before the Deputy Registrar on September 20,1993, November 1,1993, February 23, 1994 and before the court on May 6, 1994 and September 28,1994 separately. Therefore there was no justification for the absence of the appellants in the suit. A perusal of the suit file reveals that the counsel for the appellant was present before the Deputy Registrar on April 15,1993 when the suit and the applications were adjourned to September 20,1993. Thereafter there was no appearance of the appellant before the Deputy Registrar either on September 20,1993 or on the subsequent dates fixed in the matter, namely, November 1, 1993 and February 23, 1994 though the matter was being shown in the cause list for the aforesaid date Along with the name of both the counsel. Again there was no appearance on May 6, 1994 and August 28,1994 when the matter came up before the learned single Judge. We have perused the cause lists for these two dates and we find that the matter was shown in the cause lists Along with the names of both the counsel. The appellant cannot take refuge under the orders dated August 23, 1993 and September 20,1993 in Ex. No.136 of 1992 to justify its absence in the suit on the aforementioned dates. According to these two orders the execution was ordered to be listed Along with the main suit. In the Execution petition the appellant did not object on any of the dates,namely, January 6,1994, March 25,1994,April 22,1994 and August 25, 1994 that the execution case was not being listed with the suit.In any event it was for the counsel for the appellant to check whether the execution was coming Along with the suit or not. Just because the appellant appeared in the execution proceedings it cannot be a ground for justifying his absence in the suit. Learned counsel for the appellant also submitted that the talks for compromise were going on. In the reply of the respondent to Ia No.1405 of 1995, which is supported by her affidavit dated April 15, 1995, it is pointed out that the meetings were not being fixed. However, finally on July 18,1994 a meeting was fixed in the office of the appellant at the premises in question. But, the counsel for the appellant was not present and the representative of the appellant stated that he had no knowledge of any meeting or a move to compromise the matter. It is further averred that the counsel for the plaintiff Shri Abhinav Vashist informed the counsel for the defendant that in these circumstances the plaintiff would press for the execution of the decree on the next date of hearing viz.August 25, 1994. It is further asserted that the defendant-appellant and its counsel were fully aware of all dates of hearing in their applications moved in the suit and on each occasion counsel for the appellant enquired from the counsel for the plaintiff about the dates of hearing but despite knowledge did not choose to appear in the matter. This assertion has not been traversed by the appellant since no rejoinder was filed in the Ia No.1405 of 1995.It also needs to be noticed that earlier on January 7,1992, and March 4, 1992, also no one appeared for the defendant-appellant and as a consequence thereof the suit was partially decreed by the trial court and the defendant was directed to vacate the premises on May 15, 1992. According to the own showing of the appellant the period of lease commencing on May 16,1987 expired on May 15, 1992. Even after the expiry of the lease three years have gone by but the appellant has not vacated the demised premises.
(7) The appellants have not been able to give cogent explanation for their absence on September 20,1993, November 1,1993, February 23,1994, May 6, 1994 and September 28,1994. It was in the light of these facts the learned single Judge dismissed the applications of the appellant. We fully endorse the view of the learned single Judge.Accordingly the appeal is dismissed with no order as to costs.