Ram Krishna Singh & Ors vs Thakurji Shivji

The suit was filed in the year 1975 against the original tenant Kali Prasad, whose heirs and legal representatives are now the appellants before this Court. It was decreed ex-parte on September 25, 1975. When the decree was put to execution, the tenant filed an application under Order IX, Rule 13, on October 7, 1 1978 for setting aside the ex-parte decree. This petition was dismissed by the Judge, Small Causes Court, Gorakhpur. In course of the proceedings before the Small Causes Court, Kali Prasad had died and was substituted by his heirs and legal representatives (the present appellants). They took the matter in revision. The Additional District Judge, Gorakhpur, allowed the revision by order dated January 31, 1983 holding that the summons in the suit were actually not served on Kali Prasad and hence, the ex-parte decree was liable to be set aside. Ten days later, on February 10, 1983, the tenants deposited all the arrears of rent in court. Over two and a half years later, on December 13, 1985, the record of the case was received back in the Small Causes Court and the proceedings in the suit were resumed before the Small Causes Court on January 3, 1986. At that stage, a petition was filed on behalf of the respondent- landlord for allowing the suit and directing the eviction of the tenants on the ground that the arrears of rent had not been paid on the first date of hearing. The Small Causes Court did not accept the petition and proceeded with the suit. Finally, on February 19, 1988 it decreed the suit for recovery of 2 arrears of rent but dismissed it in regard to the relief for eviction holding that the tenants were entitled to the protection under Section 20(4) of the Act.

It is noted above that the respondent's suit was originally decreed ex-parte on September 25, 1975 and the petition for setting aside the decree was made on October 7, 1978. The ex-parte decree was finally set aside on January 31, 1983. We may discount the eight years, thus, wasted because there is the finding of the Revisional Court that the summons in the suit were not served on Kali Prasad, the defendant-tenant. But the conduct of the appellants in course of the later proceedings disentitles them from any relief.

It is noted above that the appellants challenged the order of their eviction passed by the Revisional Court in a writ petition (Civil Misc. Writ Petition No.8301 of 1991) filed before the Allahabad High Court. That writ petition was first dismissed for default on March 11, 2002. The dismissal of the writ petition revived the execution proceedings instituted on the basis of the order of the Revisional Court and the respondent-landlord got the possession of the suit premises on May 31, 2002. Thereafter, the writ petition was restored by order dated September 5, 2002. It was dismissed for a second time, once again for default on September 1, 2003, but was again 5 restored by order dated October 22, 2003. It was finally dismissed on merits by the impugned order passed on July 13, 2004.

The way the proceedings took place before this Court is not very different. The present appeal too was dismissed for non-prosecution by order dated April 8, 2010 and it was later restored by order dated May 14, 2010.

It is, thus, obvious that the appellants have conducted the proceedings in this case with complete lack of seriousness and in a highly cavalier manner.

Ms. Mukherjee submitted that there was no laches or negligence on the part of the appellants and the writ petition before the High Court and the appeal before this Court were dismissed due to oversight on the part of the concerned lawyers. We are unable to accept this as sufficient justification for penalizing the respondent.

In the facts of this case, as noted above, we are not inclined to pass any order in favour of the appellants. The appeal is dismissed leaving the question of law raised by Ms. Mukherjee open.