C.R. No.5750 of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.5750 of 2003 DATE OF DECISION: AUGUST 25, 2009 Om Parkash .....PETITIONER Versus Smt. Usha Jaidha ....RESPONDENT CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL --- Present: Mr.Sandeep Punchhi, Advocate, for the petitioner. Mr.B.S. Kathuria, Advocate, for the respondent. .. SATISH KUMAR MITTAL, J. (Oral) The petitioner is the tenant in the shop of the respondent. The respondent-landlord filed a civil suit for eviction of the petitioner-tenant from the said shop after terminating the tenancy under Section 106 of the Transfer of Property Act. The said suit was decreed vide judgment and decree dated 9.1.1995. The petitioner filed an appeal against the said judgment and decree, which was dismissed by the Appellate Court vide judgment dated 28.2.1995. Feeling aggrieved against the said judgment and decree, the petitioner filed RSA No.1041 of 2001 before this Court. In this Court, the matter was compromised between the parties and in view of the said compromise, RSA No.1041 of 2001 was disposed of by this Court vide order dated 19.11.2001 by passing the following order:- C.R. No.5750 of 2003 -2- “The parties have compromised. In view of the compromise, RSA Nos.1041 and 2966 of 2001 are hereby disposed of with the observation that w.e.f. 1.1.1999 Om Parkash tenant shall pay rental @ Rs.3,000/- per month besides house tax. He shall also be responsible to pay the electricity charges as per the bills upto 31.12.1998 and shall pay the rental @ Rs.1,200/- per month and the entire arrears shall be cleared by Om Parkash within nine months from today. He shall also give an undertaking within one month from today before the trial court that he shall clear all the arrears within nine months failing which the appeal of Om Parkash shall be deemed to have been dismissed for all intents and purposes. The parties shall be bound by their statements. No order as to costs.” In view of the said compromise, the petitioner was required to give the above-said undertaking within the period of one month from the date of order. Undisputedly, the petitioner filed the said undertaking on 20.12.2001. The respondent-landlord moved an application for issuance of warrant of possession alleging that the petitioner did not file the said undertaking within the stipulated period of one month, therefore, Regular Second Appeal filed by him shall deem to be dismissed. The said application was allowed and warrant of possession was issued vide impugned order dated 29.11.2002 while making the following observations:- “In view of this order dt. 19.11.01 it is amply clear that the affidavit should have been furnished by the JD by 18.12.01 positively as admitted by both the parties and the JD would clear all the outstanding arrears of rent within nine months from the date of order. In the present application the question regarding rent is not to be discussed as the same was accepted by the DH though under protest. But the learned counsel for the C.R. No.5750 of 2003 -3- DH has argued mainly on the point that in view of the orders dt. 19.11.01 as cited above the JD was bound to furnish undertaking within one month from 19.11.01 i.e. on or before 18.12.01 but the same has not been furnished by the JD. The plea taken by the JD that on 18.12.01 the Presiding Officer of this Court was on leave and on 19.12.2001 was holiday on account of the martyrdom day of Sh. Guru Teg Bahadur Ji and as such the affidavit was filed on 20.12.01. But the said plea is not tenable as the JD himself admitted that on 18.12.01 there was no holiday and if he was ready and willing to furnish his affidavit as per the directions of the Hon'ble High Court passed in the order dt. 19.11.01 he should have filed the same before 18.12.01 as the Hon'ble High Court had given him sufficient time to furnish his affidavit. Even for the sake of arguments it is assumed that the JD was willing to furnish his affidavit on 18.12.01, he could have furnished the same either before the duty Magistrate or before the Civil Judge (Sr.Divn.) Chandigarh who was holding the duty work/court. But the JD has not furnished the affidavit before the duty Magistrate or before the Civil Judge (Sr.Divn.) Chandigarh and even the affidavit was attested by the JD on 20.12.01. Hence it is clear that the JD has violated the order of the Hon'ble High Court. Apart from this no documentary proof has been placed on record by the JD that he was ready and willing to furnish his affidavit before 18.12.01 and the JD has violated the order the Hon'ble High Court and the appeal filed by the JD before the Hon'ble High Court is deemed to have been dismissed for all intents and purposes in view of the order of the Hon'ble High Court dt. 19.11.01 and accordingly, the application moved by the DH for issuance of warrants of possession is allowed. However, the application moved by the JD regarding delay in filing the affidavit is hereby dismissed.” I have heard the counsel for the parties. Counsel for the petitioner argued that the petitioner could not C.R. No.5750 of 2003 -4- file the undertaking on 18.12.2001 because on that date the Presiding Officer was on leave. The same could not be filed on 19.12.2001 as it was a gazetted holiday. Therefore, the petitioner filed the undertaking on 20.12.2001. The facts that on 18.12.2001 the Presiding Officer was on leave and 19.12.2001 was gazetted holiday, have not been disputed. In view of these facts, learned counsel argued that it cannot be said that the petitioner has flouted the order dated 19.11.2001 passed by this Court and has not given the undertaking within the requisite period. On the other hand, learned counsel for the respondent-landlord argued that the petitioner was bound to give the undertaking within a period of one month, i.e., up to 18.12.2001 and since the said undertaking was not given by the said date, the trial Court has rightly issued the warrant of possession by taking RSA filed by the petitioner as deemed to have been dismissed. After hearing the counsel for the parties and going through the impugned order, I am of the opinion that the trial Court has wrongly come to the conclusion that the petitioner did not give the said undertaking within a period of one month and consequently it was wrongly held that RSA filed by the petitioner shall deem to have been dismissed. It is conceded position that in terms of the compromise, the petitioner had already paid the arrears as well as enhanced rent up to date besides electricity charges as per the bills up to 31.12.1998, and he is continuously paying the revised rent till date. It is also conceded position that on 18.12.2001 the Presiding Officer was on leave, therefore, the petitioner could not have filed the undertaking before the trial Court. On 19.12.2001, there was a gazetted holiday. Therefore, the undertaking filed by the petitioner on 20.12.2001 cannot be C.R. No.5750 of 2003 -5- taken that the same was not filed within the stipulated period. The trial Court while allowing the application of the respondent-landlord for issuance of warrants of possession has adopted the hyper-technical approach in coming to the conclusion that no effort was made by the petitioner to file the said undertaking before 18.12.2001. In my opinion, the petitioner was within his right to file the undertaking within one month after excluding two dates, i.e., 18.12.2001 and 19.12.2001. Therefore, in my opinion, the finding of the trial Court that the said undertaking was filed by the petitioner beyond prescribed time, is incorrect and is liable to be dismissed. In view of the aforesaid, the revision petition is allowed and the impugned order dated 29.11.2003 passed by the trial Court is set aside. August 25, 2009 (SATISH KUMAR MITTAL) vkg JUDGE