Civil Revision No.4991 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Misc.No.20525-CII of 2010 and Civil Revision No.4991 of 2010(O&M) Date of Decision 28.02.2011 Dr.S.K.Sharma ...... Petitioner VERSUS Dinesh Rawlley ...... Respondent CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Brijender Kaushik, Advocate, for the petitioner. Mr.Sudhir Pruthi, Advocate, for the respondent. ***** A.N.JINDAL, J: This petition assails the order dated 26.04.2010, passed by the District Judge, Panchkula, dismissing the application moved by the petitioner-defendant for condonation of delay of 243 days in filing the appeal against the judgment and decree dated 30.05.2009, passed by the Civil Judge (Junior Division), Panchkula. The respondent-plaintiff (herein referred as 'the plaintiff') had filed a suit for possession alongwith arrears of rent which was decreed by the trial Court on 30.05.2009. Having failed to file the appeal within stipulated period, the petitioner-defendant filed the same on 29.01.2010 alongwith an application for condonation of delay, pleading that he remained in custody since February, 2009 and it was not possible for him to pursue the case personally before the trial Court. He was never informed by his counsel about the proceedings of the case and the judgment and decree passed against him. He came to know about the same through the police Civil Revision No.4991 of 2010 2 authorities and thereafter he filed the objection petition on 04.08.2009 in the execution petition, filed by the plaintiff. Thereafter, after arranging the funds, he preferred the appeal. In his reply to the application for condonation of delay, the plaintiff besides taking some preliminary objections submitted that he is a non-resident Indian and the petitioner- defendant has not paid the rent in respect of the tenanted premises w.e.f. 01.01.2008 till date @ Rs.64,200/- per month. The petitioner-defendant contested the suit but did not file the written statement and consequently his defence was struck off. The suit of plaintiff for ejectment was decreed alongwith arrears of rent of Rs.5,52,900 alongwith interest @ 9% per annum and future mesne profits @ Rs.68,694/-. It was further averred that he had filed an execution petition for possession and recovery of mesne profits in which the defendant filed the objection petition on 04.08.2009 which was dismissed by the Executing Court. He also filed an application for dismissal of the execution petition on 05.02.2010 which was also dismissed on 06.02.2010. Prior to that he filed the appeal in order to prolong the proceedings and in order to avoid the ejectment. After hearing the learned counsel for the parties, the Appellate Court dismissed the appeal. Arguments heard. Record perused. The decree for ejectment was passed against the petitioner on 30.05.2009 and he preferred the appeal against the said decree on 29.01.2010. Thereafter, he filed application for dismissal of execution petition on 05.02.2010 which was again dismissed on 06.02.2010. Prior to that the petitioner-defendant had also filed objection petition in the execution on 04.08.2009 which was dismissed on 09.09.2009. Thus, it Civil Revision No.4991 of 2010 3 appears that the petitioner had prior knowledge of the judgment and decree dated 30.05.2009 as he had been contesting the execution by way of filing the objection petition. The delay in filing the appeal appears to be intentional. The petitioner preferred to file the objection petition on 04.08.2009 than to file the appeal which he ultimately filed on 29.01.2010. As a matter of fact, the petitioner was never fair in his conduct and had not come with clean hands. He was in arrears of rent w.e.f. 01.01.2008 to 31.12.2010 and he did not make the payment thereof. The petitioner though never took the plea with regard to payment of rent at the time of filing of objection petition on 04.08.2009 but represented as such in the application for dismissal of execution petition while pleading the alleged receipt dated 11.04.2009. Such plea was also not raised by him in Civil Revision No.1698 of 2010 which was dismissed as withdrawn vide order dated 12.03.2010. Even he had not taken the plea with regard to payment of rent while indicating receipt dated 11.04.2009 in the grounds of appeal filed by him on 28.01.2010. Rather it was mentioned in the said grounds of appeal that he was not in a position to make the payment of rent, thus, the alleged receipt apparently is forged one. He not only misguided the trial Court but also took the stay of dispossession from this Court on 18.08.2010 on the basis of the alleged receipt. The relevant extract of the order is reproduced as under:- “Present: Mr.Brijender Kaushik, Advocate, for the applicant-petitioner. Learned counsel for the petitioner has placed on record a photo-stat copy of receipt dated 11.04.2009 showing that he has paid the rent amounting to Rs.26,06,796/- from 01.01.2008 to 31.12.2010, as per the agreement. Having regard to the aforesaid, the dispossession Civil Revision No.4991 of 2010 4 of the petitioner shall remain stayed till the next date of hearing i.e. 01.09.2010. 18.08.2010 -sd/-” Having regard to the aforesaid order, the dispossession of the petitioner was stayed till 01.09.2010. When this Court confronted the learned counsel for the petitioner with regard to payment of rent with grounds of appeal dated 28.01.2010 and grounds of Civil Revision No.1698 of 2010, he failed to support the same. It would also be pertinent to mention here that the objection petition filed by him before the trial Court, wherein he had raised such plea was dismissed vide order dated 09.09.2009 (Annexure R-1), which reads as under:- “Present: Mr.S.K.Sud, counsel for Decree-Holder. None for the judgment debtor. **** None present on behalf of judgment debtor. Several calls made since morning. Waited sufficiently. It seems that the J.D. is not interested to defend the execution application. The objections filed by the judgment debtor are observed to be dealt with earlier at the time of contest of the suit-decree. None of the objection is a consequence of change of circumstances or a later development. It seems that the application levelling objections has been filed merely to delay the execution proceedings, hence vexatious. Accordingly, this Court hereby dismisses the objections filed on behalf of the Judgment Debtor, holding them to be already decided. The report of bailiff perused, as already the said property in dispute is said to be locked with regard to some other case. Now notice to SHO concerned be issued to appear in Court on 05.10.2009 and intimate the latest proceedings in the case pending in this regard. -sd/-” Civil Revision No.4991 of 2010 5 Thus, it appears that the petitioner also mislead this Court while placing reliance on a fictitious receipt. It would also not be out of place to mention that unlike the meritorious claim, the delay in filing the lis cannot be condoned without any sufficient cause when the intention of the party was just to drag the litigation and to deprive the respondent-decree holder of the lawful rights which had accrued to him. The petitioner was in arrears of rent to the tune of Rs.26,06,796/- and he instead of making the payment forged the receipt and also made out false grounds for condonation of delay. The documents, as referred to above, reveal that the petitioner was in full knowledge of the decree passed against him since August, 2009 but he preferred the appeal after delay of five months about which he had no plausible explanation to make. Resultantly, finding no merit in the petition, the same is dismissed. (A.N.Jindal) Judge 28.02.2011 mamta-II