IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.7622 of 2011 (O&M) Date of decision: 12.12.2011 Suresh Kumar son of Sh. Ghanzi Ram ......Petitioner(s) Versus Mandir Thakur Dwara & Shivala Trust and anr. ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Avinash Chander Jain, Advocate and Ms. Aparna Jain, Advocate for the petitioner. Rakesh Kumar Garg, J.(Oral) This is tenant's revision petition challenging the order dated 8.9.2010 (Annexure P-7) whereby the application for restoration of the appeal filed by the petitioner was dismissed. The brief facts emerging out of the instant revision petition are that respondent No.1 filed an ejectment petition i.e. Rent Application No.135 of 2002 on 25.9.2002 against respondent No.2. The said ejectment application was disposed of vide order 12.10.2002 on the basis of statement suffered by respondent No.2 wherein he had undertaken to vacate the demised premises within one month from the date of order. Petitioner filed objections against the execution of the aforesaid eviction order dated 12.10.2002 making averments that he is the tenant in the shop in dispute and JD Rajan Kumar was neither a tenant nor had any right in the shop in question. The petitioner claimed to be a tenant at a monthly rent of Rs.150/- under the respondent-landlord on the basis of rent note dated 7.6.1993. The aforesaid objections filed by the petitioner were rejected by the Executing Court vide order dated 28.8.2004. The relevant part of the said order reads thus: “A perusal of the file reveals that an ejectment order has been passed against Rajan Kumar in respect of property bearing shop No.450/1, situated at Bagichi Paira Mal, outside Lohgarh Gate, Amritsar belonging to Mandir Thakur Dwara and Shivala Trust. This ejectment order was passed on 12.10.2002. The objector Sh. Suresh Kumar is saying that when the bailiff came to the spot for taking the possession of the shop, then he came to know that the decree holder had impersonated some wrong person in his place and falsely obtained the ejectment order. He is saying that he is in possession of this shop. The learned counsel for the DH has placed on record the rent deed which Rajan Kumar has executed in favour of DH at page No.3 of the said rent note, its last lines are important. In the rent note itself it is stated that he has taken the possession of the same from Smt. Nirmala wife of Sh. Suresh Kumar, who is present objector and he had given the money to Smt. Nirmala and her husband Sh. Suresh Kumar for leaving the possession and now Nirmala and her husband had no concern regarding their tenant ship rights over the property and it is further written that at the asking of Suresh Kumar he had executed a fresh rent note in favour of Secretary, Sh. Vijay Kumar and one of the attesting witnesses of the said rent note is Sh. Suresh Kumar, the present objector. Alongwith it a receipt has also been placed on record that the arrears of rent had been paid by Suresh Kumar and he had left the possession. It is also duly signed by Suresh Kumar on 17.1.2001. All these facts have come on the file reveals that especially the rent note which Rajan Kumar against whom the decree holder had obtained the ejectment order, reveals that earlier the shop which Rajan Kumar had taken on rent was on rent with Smt. Nirmala wife of Sh. Suresh Kumar. They were in arrears of rent. Then some sort of arrangement had taken place. Smt. Nirmala wife of Suresh Kumar the present objector, left the possession in favour of Rajan Kumar after obtaining from him some money as depicted in the rent note. Then her husband also executed a receipt in this respect that previous arrears of rent had been paid and he had left the possession bearing shop No.B-1/450 and then afterwards this shop was taken on rent by Rajan Kumar, by executing a fresh rent note in favour of decree holder. The important fact is that the rent note which Rajan Kumar had executed in favour of DH, in that rent note Suresh Kumar is one of the attesting witness and in Clause No.10 this fact regarding his wife handing over the possession to Rajan Kumar and further executing of the receipt clears all the picture. It appears that the present objections have been filed just to gain some ulterior benefits. There is no merit in the same. Hence, the same stands dismissed and further there is no question of any stay of executing proceedings. Pronounced in open court this 28th day of August, 2004.” It is the further case of the petitioner that he did not come to know about the aforesaid order dated 28.8.2004 as his counsel did not inform him. Thereafter, he changed his counsel and after obtaining the certified copy of the impugned order, filed an appeal before the Appellate Authority, Amritsar along with an application for condonation of delay (Annexures P-4 and P-5). According to the petitioner, the aforesaid appeal was listed on 12.4.2010. However, his counsel Sh. A.K. Bansal, had to go to Ludhiana for the treatment of his wife, although the proxy counsel Mr. Manish Bansal, attended the Court. The appeal was dismissed for non- prosecution vide order dated 12.4.2010 (Annexure P-5/A). An application (Annexure P-6) was immediately filed for recalling of the aforesaid order, however, the same was dismissed by the Appellate Authority vide order dated 8.9.2010 (Annexure P-7). While passing the said order, the Additional District Judge Amritsar observed as under: “The main objection to the application for restoration is that in fact the application u/s 5 of Limitation Act was dismissed and not the appeal. As such, the application is not maintainable. The perusal of record reveals that on 12.4.2010 the counsel for respondent was present, but none was present for applicant/appellant. Even the statement to that effect was also suffered by counsel for the respondent that on calling the case time and again none is appearing on behalf of the applicant. The case was pending for arguments on application u/s 5 of the Limitation Act and the said application u/s 5 of the Limitation Act was thus dismissed in default, as a result it was ordered that Civil Misc. application cannot be admitted. The application for restoration of the appeal was filed on 15.4.2010 i.e. within the period of limitation. The ground for absence is the ill-health of wife of counsel for the applicant who was admitted in Raaghunath Hospital at Ludhiana for her treatment. It may be sufficient cause for non- appearance of the counsel for the applicant, but the fact remains that application u/s 5 of the Limitation Act was dismissed in default and not the appeal, but the appellant-applicant has filed the application for restoration of the appeal which was dismissed on 12.4.2010. It has been prayed in the relief clause also that the appeal of the appellant which was dismissed in default on 12.4.2010 for want of prosecution be restored in the interest of justice, equity and fair play. Although, it would be highly technical, but the court cannot go beyond the record as there is no application for restoration of the application u/s 5 of the Limitation Act which was dismissed in default on 12.4.2010. The present application for restoration of the appeal itself, which was in fact not dismissed in default, is not maintainable and is thus denied. Nothing stated hereinabove shall effect the merits of the case. The applicant, if so advised, desired and permitted under law, may file fresh application for restoration of the application u/s 5 of the Limitation Act. The file be consigned. Record of ld. Trial court be returned.” It may also be noticed at this stage, that admittedly, the respondent-landlord took possession in execution of the order of eviction on 30.8.2010. It may be noticed that vide Annexure P-9, a specific note was given by the Bailiff that the possession was given before the stay order from the Court was received. This fact is not disputed at any stage and not even before this Court. Thereafter, the petitioner filed CR No.7180 of 2010. However, the said revision petition was ordered to be dismissed as withdrawn with liberty to file fresh one vide order dated 14.12.2010. Challenging the order dated 8.9.2010 (Annexure P-7), counsel for the petitioner has vehemently argued that the Additional District Judge, Amritsar had failed to appreciate the well settled principles of law and has ignored the fact that there was a sufficient cause for non appearance of counsel for the petitioner and thus, order dated 12.4.2010 dismissing the appeal and further order dated 8.9.2010 rejecting the application for restoration was bad in law and liable to be set aside. In support of his case, counsel for the petitioner has also referred to a judgment of this Court in Pritam Singh versus Financial Commissioner (Revenue & Rehabilitation), Punjab, 2011 (3) R.C.R. (Civil) 663, to contend that a litigant cannot be made to suffer due to negligence on the part of the counsel and thus, interest of justice requires that appeal should be heard on merits. I have heard learned counsel for the petitioner and perused the averments made in the revision petition as well as the impugned order and the other orders/documents placed on record of this revision petition. A perusal of the order dated 12.4.2010 (Annexure P-5/A) would show that application of the petitioner under Section 5 of the Limitation Act to condone the delay in filing the appeal against the order dated 28.8.2004 was dismissed in default and as a result thereof, the appeal which was time barred was returned and consigned to the record room. However, vide Annexure P-6, the appellant has sought relief for restoration of the appeal in stead of his application for condonation of delay and vide impugned order (Annexure P-7), even the Additional District Judge, Amritsar has observed that there was no prayer before the Appellate Authority for restoration of the application under Section 5 of the Limitation Act which was dismissed in default vide order dated 12.4.2010 and thus, the application for restoration of the appeal was held to be not maintainable. Not only this, vide impugned order, the petitioner was given liberty to file fresh application for restoration of the application under Section 5 of the Limitation Act. However, for the reasons best known to the petitioner, no such application was filed for restoration of the appeal. It may also be observed that the possession of the premises in dispute have already been taken by the respondent-landlord vide order dated 30.8.2010 (Annexure P-9) and the said order has not been challenged by the petitioner at any stage. In view of the aforesaid facts, this Court is not inclined to interfere in the impugned order dated 8.9.2010 (Annexure P-7) Dismissed. December 12, 2011 (RAKESH KUMAR GARG) ps JUDGE