GULAB Vs. RAM KRISHAN DASS

JUDGEMENT

(1.) This judgment would dispose of R.S.A. 35 & 48/73 and F.A.O. 104 & 105/72.

(2.) Since before 1956, shop No. 4745, Main Bazar, Pahar Ganj, New Delhi, had been in the occupation of Ram Pershad. By an agreement of November 5, 1956, Ex. P2, Ram Pershad agreed to leave a 3, wide, passage in the shop to put up a partition wall at his cost and to vacate the portion covered by the passage. Ram Pershad failed to carry out the agreement. The tenancy was accordingly terminated by notice of December 14, 1965(Ex. P6) sent to the tenant vide Ex. P7 and received by him vide Ex. P8. This was followed by a suit in 1967 for recovery of rent. Ex. P4. The suit was compromised on April 25, 1967 vide judgment (Ex. P6) in terms of a deed of compromise, Ex, P5, which envisaged a money decree, to be satisfied by instalments continuation of the tenancy and adherence to the earlier agreement regarding surrender of passage. The landlords thereafter accepted rent for the months of May and June 1967 vide receipts Ex. P10 and 11. Ram Pershad died on 22nd July, 1967. Neither the tenant nor his legal representatives carried out the aforesaid agreement. Two suits were, therefore, filed by the landlords, one for possession and mesne profits while the other, filed subsequently, was for mesne profits for the intervening period. The suits which were resisted on a number of pleas were consolidated and decreed. The legal representatives of Ram Pershad challenged the two decrees in two different appeals both of which were dismissed by the learned Additional District Judge on the ground that no agruments had been addressed on behalf of the appellants in either of the two appeals. This was a sequel to the adjournment sought by the appellants being refused. Subsequently, pleas by certain minor children of Ram Pershad for restoration of the appeals failed on the ground of default in payment of process fee within time for the service of respondents. The judgments and decrees of the First Appellate Court in the two appeals are challanged by the two Second Appeals while the two orders of the First Appellate Court, dismissing the applications for restoration from the subject matter the two F.A.Os.C.Ms. 1688, 74 and 1672/74 in the two Second Appeals and C.M. 1667/74 in F.A.O. 104/72 seek amendment of Memo of parties and were not opposed.

(3.) At the hearing of these appeals, considerable controversy centered around the questions as the propriety of dismissal of the appeals by the learned Addl. District Judge after he refused to adjourn the same and as to the legality and propriety of the orders by which the prayer of the minor children for the restoration of the appeals were turned down. It is, however, unnecessary to go into these questions, however, unfortunate may be the manner in which the learned Addl. District Judge sought to deal with these matters, because in the interest of his clients, learned counsel for the landlords suggested that the appellate judgments be ignored and the appellants be heard on all questions that they may like to raise to assail the judgments and decrees of the trial Court instead of accepting the appeals on the ground that there has been no proper hearing. Learned counsel for the appellants had no objection to this course being followed with the result that the parties were heard at length on the various questions of fact and of law arising out of the judgments and decrees of the trial court in the two suits. It must also be mentioned that no grievance was made of the money decree in the two suits and the offensive was confined to the decree for possession.