DIGAMBAR HARI SONPATKI Vs. KISHNICHAND NERUMAL PARWANI

JUDGEMENT

(1.) A curious position has arisen in this case which requires to be resolved in an equally unusual manner. The petitioner before me Digambar Hari Sonpatki is a resident of Barrack No. 1292 at Ulhasnagar. A suit was filed against him by the respondent-Landlord under section 12 (3) (a) of the Rent Act on the ground that he is in arrears of payment of rent and that he had not paid up the arrears inspite of service of notice dated 5-11-1974. The suit in question was filed on 10-12-1974. The defendant-tenant defended the proceeding and contended that the rent was excessive etc. The learned trial Judge after hearing the parties dismissed the suit, on the ground that the material before him did not disclose a default under section 12 (3) (a) of the Rent Act. The matter was thereafter carried in Appeal by the respondent-Landlord and the Appeal Court set aside the trial Courts order, held that the respondent-tenant was a clear defaulter and decreed the suit against him. Thereafter the tenant approached this Court under Article 227 of the Constitution by way of the present petition. It is material for me to record that at the stage of admission this Court passed an order granting interim stay of the execution of the decree on usual terms thereby requiring the petitioner to deposit the arrears in the trial Court and to continue to pay rent from month to month. This last aspect of the matter assumes some significance.

(2.) AT the hearing of the petition today before Mr. Angal, the learned Counsel appearing on behalf of petitioner could advance his submissions, a grievance was projected by Mr. Mulchandani, learned Counsel appearing on behalf of the respondent-landord whereby he has pointed out through an affidavit that the petitioner had not only committed default in payment during the conduct of the proceeding before the trial Court and the Appeal Court but that his defence had been struck off and that further in breach of the terms of the interim order, of this Court the petitioner has not deposited the rent due from him from month to month before the trial Court. He points out to me that this affidavit was served on the petitioners learned Counsel six months back, that the statements contained therein are not refuted and that consequently the respondent would be entitled to execute the decree. Mr. Mulchandani advanced the contention that in so far as the petitioner is in breach of the terms of the interim order, that he is dis-entitled to a hearing and that the Court should adjourn the matter so that the decree may be executed and the consequences would follow.

(3.) MR. Angal, learned Counsel appearing on behalf of the petitioner, pointed out to me that the interim order passed was a conditional one meaning thereby that the trial Court was not obliged to stay its hands unless the petitioner complied with the terms of the interim order. In these circumstances, the moment a default had been committed by the petitioner it was open to the respondent without even obtaining any further orders of this Court to have executed the decree. Today the petition which is 11 years old has been called out for final hearing and Mr. Angal submits that it would be down-right wrong to delay the final hearing any longer on the technical plea that the respondent desires to execute the decree first and thereafter to leave it to the Court to restore the possession if necessary and that this would be in accordance with propriety and Mr. Angal is right in so far as if the respondent has not chosen to execute the decree all this time, he cannot request the Court to adjourn the final hearing to enable him to do that.