IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 432 of 2010 & CMPMO No. 413 of 2010 Date of decision: 23.5.2011 FAO No. 432 of 2010 I.D.Sharma ….Petitioner. Versus H.P.Housing Board ….Respondent. CMPMO No. 413 of 2010 I.D.Sharma ….Petitioner. Versus H.P.Housing Board ….Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: In person. For the respondent: Mr. S.C.Sharma, Advocate (In FAO No.432 of 2010 & Mr. Dinesh Thakur, Advocate ( In CMPMO No. 413 of 2010). _________________________________________________ Deepak Gupta, J. (Oral) Both the cases are being decided by a common judgement since common question of law and facts are involved. FAO No. 432 of 2010: 1. This appeal is directed against the order dated 5.10.2010 whereby the application filed by the present petitioner for setting aside the dismissal of his appeal has been rejected. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 2. The petitioner, who is appearing in person, is an Advocate by profession. He is not an ordinary litigant but an Advocate appearing in person. 3. A suit was filed against the present petitioner by the H.P.Housing Board and a decree was passed in favour of the Board on 2.6.2000 whereby the petitioner was restrained from raising any sort of construction over MIG House No.139, Housing Board Colony, Hamirpur and a decree for mandatory injunction was passed directing him to remove the construction raised by him in violation of the approved plan of MIG House No.139, Housing Board Colony, Hamirpur. The petitioner filed an appeal against the said judgement and decree in the year 2000. On 27.09.2006 this appeal was dismissed in default. 4. Thereafter, the petitioner filed an application for setting aside the order dismissing the appeal in default. This application was filed on 21.5.2007 i.e. almost one year and three months after the appeal was dismissed in default. This application moved for restoration of the appeal was also dismissed in default on 26.5.2008 when the petitioner did not appear in person. Thereafter, a fresh application was filed 3 on 1.8.2008 i.e. more than two months after the application for restoration had been dismissed in default. 5. Issues were framed and thereafter the parties were directed to lead evidence. The applicant only examined himself and his statement is that on 26.5.2008 he could not appear since he was unwell and had fallen ill in April, 2008. According to him he had sent a letter to the Court and copy of the letter was marked as Annexure A-2. He also placed on record the discharge certificate showing that he had been admitted in the RAH hospital, Chotta Shimla on 9.4.2008 and was discharged on 12.4.2008 with an injury to the chest. Though original of this document was not produced but even if the same is taken into consideration it does not in any manner show that after 12.4.2008 the petitioner could not attend the Court. There is no material whatsoever so show that he could not attend the Court after 12.4.2008. As far as the letter is concerned, it is not clear whether the letter was posted or not, whether it was sent to the Court by post or whether it was filed in Court, has not been proved on record. Only an annexure was filed 4 with the application but the original record was not summoned to prove whether any such application was filed or not. 6. In any event no party especially an Advocate can take the Court for granted and decide not to appear in Court just because he has filed an application for adjournment. The petitioner should have also followed up his case and ensured that somebody appeared on his behalf. It is not disputed that application was not filed within 30 days. No ground was either made out in the application or in the evidence to condone the delay. Therefore, I find no merit in the appeal which is accordingly dismissed. CMPMO No. 413 of 2010: 1. By means of this petition the petitioner, who is the judgement debtor, has prayed that the executing Court be directed to decide the issue of fraud before deciding other issues. He has also prayed that the costs of delaying tactics be awarded in his favour since reply to the application was not filed within 30 days. 2. I am constrained to observe that the conduct of the petitioner does not entitle him to any relief whatsoever. As is apparent from the facts narrated above, the petitioner on one 5 pretext or the other has been trying to thwart the execution of the decree passed against him as far back as in the year 2000. He himself has been using dilatory tactics and did not appear in Court time and again but when it comes to the other side just because the reply to the application was not filed within 30 days he wants exemplary costs to be imposed. 3. The learned trial Court has framed issues in the execution petition and the case is fixed for evidence of the petitioner. He is free to lead evidence to show that the decree, if any, was obtained by fraud. Fraud is something which he will have to prove and the Housing Board cannot disprove the fraud. The issue of fraud cannot be decided without any evidence. The petitioner if he so desires can lead evidence in this behalf. If such evidence is led the Housing Board can contest the same on merits and the Housing Board can also raise the plea that such issue cannot be decided in execution proceedings. These pleas shall be decided by the learned trial Court on merits. 4. The petitioner has placed reliance on the judgement of the Apex Court in Century Textiles and another vs. Deepak Jain and another, IX 6 (2009) SLT 646. In my view this judgement is not at all applicable to the facts of the case. 5. This Court is not deciding the question whether such an issue is to be decided under Section 47 or not. This is for the Executing Court to decide but this issue has to be decided after recording evidence. Therefore, this petition is rejected with costs assessed at Rs.2000/-. 6. The parties are directed to appear before the learned Executing Court, Hamirpur on 10th August, 2011. The petitioner shall be given two opportunities to lead evidence. In case he does not lead evidence then the right to lead evidence shall be closed. The execution proceedings shall be positively decided by the learned Trial Court latest by 31st March, 2012. 23rd May, 2011 (Deepak Gupta) ™ Judge