LAWS(DLH)-2001-1-74

GOBIND PARSHAD JAGDISH PARSHAD Vs. HARI SHANKAR

Decided On January 11, 2001
GOBIND PARSHAD JAGDISH PARSHAD Appellant
V/S
HARI SHANKAR Respondents

JUDGEMENT

(1.) An eviction petition on the grounds of subletting was filed almost three decades ago, on 21.11:1972. It was decided in favour of the Landlord by the Additional Rent Controller in 1985. The Tenant's appeal was allowed by the Rent Control Tribunal in July 1987. The present Second Appeal was admitted on 15.12.87. Thereafter, although this Appeal was listed on 24 occasions, not once has anyone entered appearance for any of the Respondents. A vakalatnama was filed on behalf of Respondent No. 1 presumably, in February 1988. Respondent No. 4 had to be served through publication in the Statesman for the hearing scheduled for 11.3.1996 at 11 a.m. (Actual), but there was still no appearance for this Respondents or any of the other Respondents, on that date.

(2.) The case set out by the Respondents in these applications is that their Counsel did not appear on 11.9.2000 since their names were not mentioned in the Cause List for that date. They came to know of the passing of the orders accepting/allowing the appeal on an inspection of the Court records on 12.10.2000, apparently by Shri K.J.S. Kalra, Advocate. This exercise was allegedly carried out because the tenant had heard whispers from the side of the landlord that the Respondent had been directed to vacate the demise premises on the expiry of the 15 days." The vakalatnama of Respon- dents in favour of Mr. Kalra is dated 24.10.2000 that is after the inspection was carried out. In the application for condonation of delay in filing the application for rehearing the appeal, it has been averred that though no delay has occurred, the application has been filed in abundant caution. It has also been sanguinely stated that the Respondents have "been absolutely vigilant and diligent in prosecuting the case." All these allegations have been denied by the Appellants. Mr. A.P.S. Ahluwalia has relied on the decisions rendered in Jainarian Singh v. Lachmi Prasad, AIR 1949 Pat 502, Gursharan Kaur v. Ram Chandra, 24 (1983) Delhi Law Times (SN) 18 and Lalit Mohan Puri v. Pure Drink Ltd., 1994 Rajdhani Law Reporter 483. In Jainarain's case (supra) notice of the appeal had been served on 20.5.1947, intimating that the case would be heard on 28.7.1947, and the vakalatnama was filed five days prior to that date, that is, on 23.7.1947. The name of the Advocate was shown in the Weekly List but not in the Daily List. The Single Judge observed as follows:

(3.) In the present case however, the Advocate did little more than filing the vakalatnama on behalf of Respondent No. 1. The Respondents were not represented even once, on any of the numerous occasions when the case was listed before the Deputy Registrar or Joint Registrar or even on 24.8.2000 when the Appeal was listed before Court for final disposal. The Rules applicable to the case are different to these existing in Patna, as will be seen below; hence this case is not of much assistance. I am also unable to appreciate the relevance of the decision of the Hon'ble Division Bench of this Court in Gursharan Kaur's case which was pending on the Original Side. The present Second Appeal, it should be borne in mind, was listed for hearing in the Regular List, in accordance with its antiquity to the date of admission under Rule 6 of Chapter 3 of Volume V of the High Court Rules and Order. It was not listed out of its turn. The party, or at least its Advocate, is expected to keep a watch/track of cases according to the age of the matters which are posted on the Regular List. This duty is incorporated in the succeeding Rule 8 which requires and enjoins the parties and their Advocate to attend the Court on the day or days for which their cases are set down, and on subsequent days until their cases are disposed of or are postponed. The Division Bench held as follows: "The order of the Deputy Registrar dated 21.11.1977 no doubt directed the listing of the three objection-petitions on 28.11.1977 and I.A. 3062/77 on 8.12.1977. But a perusal of the order of the Deputy Registrar shows that the matter was being directed to be listed before the court on 28.11.1977 because defendants Nos. 2,3 & 4 had failed to complete admission/denial of documents filed on behalf of the plaintiff till then. As already mentioned so far as the present appellant, defendant No. 5, was concerned, this formality had been completed. The appellant could, therefore, have bona fide believed that on the date of hearing fixed by the Deputy Registrar, namely, 28.11.1977 no appearance on her behalf was necessary before the court as the matter had only been listed for directions regarding the default of defendants 2,3 & 4 and not regular hearing, particularly as the application for amendment of the objections was still being processed. Perhaps this belief was confirmed when admittedly the cases were not found by counsel in the regular list issued for that date, i.e. 28.11.1977. It is true that the case was listed on 19.11.1977 and the name of the counsel for the appellant was also shown in the cause list but the point made on behalf of the appellant was that, having regard to the practice of the original side of fixed dates being given, the counsel looked up the cause list of 18.11.1977 and as the list received by him did not contain the name of the case and the counsel, he thought that the matters had not been fixed for hearing and that they would come up some time later. This belief was presumably confirmed because so far as the appellant was concerned her application for amendment of the objections had been directed to be listed on 8.12.1977. Again, the case did not appear on 8.12.1977. The reason for this is not known. Had it been listed on 8.12.1977 it might have been posted on 13.12.1977 along with the regular petition and the learned Judge might have been made aware of the existence of this amendment application. But as matters transpired, the application was not listed on 8/12/1977. In the meantime, the objection petitions had been dismissed for default on 29.11.1977 and the learned Judge had given a date for the hearing of the petition of which the appellant was not aware. In the circumstances of the present case there was sufficient cause for the failure of the appellant to have been present before the learned Judge on 28.11.1977 as well as on 29.11.1977. The position on 28.11.1977 was that the appellant was under an impression that the matter was being listed before the court for a limited purpose and not for hearing. That apart, the case did not appear in the cause list to the knowledge of the counsel. Thus in the somewhat peculiar circumstances a good deal of confusion had been created in the minds of the appellant and the counsel and the counsel and that in the circumstances there was sufficient cause for the failure of the appellant to be present when the cases were called on 28.11.1977. In our opinion, therefore, the order dismissing the applications for default on 29.11.1977 should be set aside. This automatically results in the setting aside of the ex-parte decree dated 13.12.1977 as well."