1 14 S.B. CIVIL FIRST APPEAL NO.207/2006. Mahesh Kumar Vs. Sukan Raj Date of Order :: 15th September 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. N.M. Lodha ] Mr. V.D. Dadhich ], for the appellant. Mr. S.N. Vyas, for the respondent. ..... Civil Suit (CO No. 32/2005) for recovery of possession of the suit shop, share of business profit, and damages for use and occupation as filed by the plaintiff-respondent was decreed with costs by the Additional District Judge (Fast Track) No.2, Pali on 18.03.2006 directing the defendant- appellant to hand over vacant possession of the suit shop to the plaintiff; to make payment of Rs. 10,000/- towards share of profit and Rs. 35,000/- towards damages for use and occupation of the suit shop till filing of the suit; and to pay mesne profits from 18.01.2005 until the delivery of possession at Rs. 1,000/- per month. This appeal (CFA No. 207/2006) preferred by the defendant-appellant against the judgment and decree aforesaid was admitted for consideration on 27.03.2006 and execution of the impugned decree was ordered to remain stayed. Thereafter, on 03.01.2007, after hearing learned counsel for the parties, this Court directed that the appellant 2 shall pay the decreetal amount within one month and shall continue to pay the amount payable per month with the stipulation that in case of three consecutive failures, the stay order would automatically stand vacated. With these conditions and stipulations, dispossession of the appellant was ordered to remain stayed pending final decision of the appeal. Learned counsel for the appellant moved an application (IA No. 6777/2008) on 30.05.2008 with the submissions that the appellant had regularly made payment as per the directions of the Court until 18.02.2008 but thereafter could not make payment; that however, on 21.05.2008, the money order was sent in relation to the payment for three months, i.e., from 18.02.2008 to 18.05.2008, in the sum of Rs. 3,000/- though it was required to be sent by 18.05.2008. The appellant has submitted in the said application that 18.05.2008 was Sunday and 20.05.2008 was also a holiday and in such circumstances, money order was sent only on 21.05.2008 that has been returned on 24.05.2008. According to the appellant, there has been a short delay of about two days in carrying out the compliance that deserves to be condoned in the interest of justice; and it is prayed that the interim order may be continued till disposal of the appeal. While the said application remained pending, another application (IA No. 10755/2008) came to be moved by the appellant on 21.08.2008 with the 3 submissions that the respondent has initiated proceedings for execution of the decree and hearing of the case may be preponed and it was also submitted that copy of the earlier application could not be served on the counsel for the respondent for want of his availability at Jodhpur. Notice on the said application (IA No. 10755/2008) was ordered to be issued on 27.08.2008. Learned counsel has put in appearance for the respondent-plaintiff and has filed the reply to the previous application (IA No.6777/2008) with the submissions, inter alia, that the appellant, intentionally and only in order to harass the respondent, was not making timely payment and it has been pointed out that in the past also, like that on 18.05.2007, 18.08.2007 and 18.11.2007, money orders for the amount referable to more than one month were sent. It has further been pointed out that the amount of costs of Rs. 17,522/- was never deposited by the appellant. It has also been stated that the respondent is otherwise residing just adjacent to shop in question and if the appellant wanted so, he could have made payment directly to the respondent. It is submitted that for his intentional delay and defaults, the appellant is not entitled for any indulgence from this Court. Learned counsel for the appellant has craved for indulgence with the submissions that there had been a short 4 delay and there had been a bona fide mistake in not making deposit of the amount of costs but the appellant shall cure the defaults within three days. Such submissions have been opposed by the learned counsel for the respondent with reference to the facts as stated in the reply particularly about the appellant having not made timely payment and having not carried out all the requirements of the order passed by this Court. The order as passed by this Court on 03.01.2007 in unambiguous terms required the appellant to pay the decreetal amount within one month and obviously, the decreetal amount was inclusive of the amount of costs and there was no reason wherefor the appellant did not carry out punctual compliance of the order passed by this Court particularly when, otherwise, his dispossession from the suit shop under the impugned decree was ordered to remain stayed by this Court. The stipulation that the stay order would automatically come to an end for three consecutive failures could not have been utilized by the appellant in the fashion that every time he would intentionally wait for the last day before expiry of three months and then send the amount to the plaintiff. The submissions as made in the reply on behalf of the respondent on the frequency of the payments by the appellant give rise to serious questions on the conduct and on the intentions of the 5 appellant. Even in the application (IA No. 6777/2008), no reason is available as to why the appellant could not have made payment immediately after 18.02.2008 until he chose to send the money order only on 21.05.2008. Having regard to the overall circumstances of the case, this Court is not satisfied with the conduct of the appellant; and the grievance as stated on behalf of the respondent cannot be said to be unjustified. Yet and however, this Court is of opinion that merely because the appellant had been wanting in forthrightness and had been indiscreet in his conduct on the earlier occasions, it cannot be assumed that if he is given a chance on reasonable terms, he would not mend himself and would not correct the errors. Although, per its force, the stay order has automatically come to an end for failure on the part of the appellant in carrying out total and timely compliance but in the interest of justice, dispossession of the appellant from the suit property is ordered to remain stayed in partial modification of the earlier stay order, but now on the following terms and conditions: (a) it shall be required of the appellant to deposit in the Court, or pay to the respondent against receipt, the entire of the arrears whether towards decreetal amount or towards the amount of mesne profits on or before 18.09.2008; and 6 (b) if the respondent furnishes a bank account number in the Executing Court and also furnishes an undertaking for restitution, in case so required at the time of final hearing of the appeal, it shall be required of the appellant to deposit the amount of arrears and so also the future payable mesne profits in such bank account of the plaintiff; and (c) as the amount of mesne profits is paid with reference to 18th day of every month it is made clear that in relation to the future payments, if any default is committed by the appellant in making deposit/payment latest by 21st day of the relevant month, this stay order shall stand vacated; and (d) for the defaults earlier committed by the appellant, it does appear appropriate and hence is ordered that the appellant shall pay costs in the sum of Rs. 2,500/- to the respondent that shall also be paid or deposited by 18.09.2008. With the requirements aforesaid, the application (IA No. 6777/2008) stands disposed of. The application (IA No. 10755/2008) has already become redundant and that too stands disposed of. (DINESH MAHESHWARI), J. Mohan/