M R TYAGI Vs. SRIDEVI SAHI GAUTAM

JUDGEMENT

(1.) LEAVE granted. Heard learned counsel for the parties. The High Court by its impugned judgment and order dated 17th May, 2005 set aside the Order passed by the Additional District Judge/Fast Track Court-II, Dehradun dated 7/5/2005 in Miscellaneous Case No.2 of 2003 whereby the learned Additional District Judge dismissed the application filed under Section 5 of the Limitation Act and consequently dismissed the application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree passed against the respondent The facts of this case demonstrate how misplaced sympathy fora defaulting litigant may result in hardship and unnecessary harassment to abona fide litigant. The facts of this case amply demonstrate the unnecessary harassment caused to the landlord who inducted a person like the respondent as a tenant in the premises in question on a monthly rental of Rs.1500/-. It appears from the record that with effect from 1st July, 1996 the respondent tenant stopped paying rent and therefore, on May 25, 1998 the petitioner landlord filed a suit for his eviction on the ground of default in payment of rent. Since the defendant did not take part In the proceeding, an ex-parte decree was passed against him on 12/11/1998. However, by Order dated 23/9/1999 this ex-parte order was set aside, whereafter the respondent tenant was required to file a written statement. Again on account of his default the proceeding was set down ex-parte as against the respondent by order dated November 30, 1999. That order was again set aside on 8/12/1999 whereafter the respondent filed a written statement. The plaintiff then examined his evidence which was closed on May 4, 2001. The respondent instead of producing his witnesses kept on seeking adjournments. Since large number of adjournments were granted, the petitioner landlord moved the High Court and sought a direction that the matter be disposed of as early as possible. The High Court, by its Order of 11th September, 2002 directed the Trial Court to decide the suit within three months. Thereafter also, the respondent did not examine his witnesses and sought seven more adjournments upto November 8, 2002. The matter was again set down ex-parte as against the respondent whereafter twelve more adjournments weresought. Ultimately, on January 30, 2003, the suit was decreed ex-parte.

(2.) THE respondent tenant thereafter filed an application on September 2, 2003 under Order 9 Rule 13 of the C.P.C. along with an application for condonation of delay under Section 5 of the Limitation Act. THE ground sought to be made out was that his advocate had never contacted him and he never came to know about passing of the decree till the bailiff came to execute the decree on 26/8/2003. He also stated that since his daughter was unwell and required immediate treatment he could not take necessary steps in the suit. THE Trial Court by its Order dated May 7, 2005 rejected the application under Section 5 of the Limitation Act finding that no good ground had been made out for condonation of delay. It rejected both the grounds urged in support of the application for condonation of delay and consequently, dismissed the application under Order 9 Rule 13 C.P.C.

(3.) WE entirely disagree with the reasoning of the High Court. If the High Court found that the Courts below had properly appreciated the material on record and had recorded reasons for their conclusions which did not call for any interference in revision, the High Court ought to have simply dismissed the revision. The question of taking a pedantic or hyper technical view did not arise at all. WE notice that three adverse orders were suffered by the tenant, and yet he did not take prompt steps in the suit. Apart from the large number of adjournments taken earlier, he had taken as many as seven adjournments upto 8/11/2002. Thereafter when the matter was set down ex-parte as against him he sought twelve more adjournments and ultimately the Court had no option but to pass an ex-parte decree against him for the second time. Thereafter it is interesting to note that the impugned order was passed by the High Court on 17th May, 2005 directing the Trial Court to decide the suit within three months. As many as 31 adjournments thereafter have been granted between 8th July, 2005 and 24thApril, 2006.