BAL CHAND Vs. DEVI SINGH

JUDGEMENT

(1.) THIS is a plaintiff's revision and arises under the following circumstances: Respondent No. 1 Devisingh had filed a suit for ejectment against respondent No. 2 Shyamsunder in respect of the property described in para 1 of the plaint, a copy of which is on the record. In that suit, it was, inter-alia pleaded that defendent Shyam Sunder had sub-let the premises in question to one Mohanlal and Mohanlal in his turn had sub-let a part of the premises to the present petitioner Balchand. Balchand was not impleaded as a party to that suit. Although, no written statement was filed by defendant Shyamsunder in that suit, he appeared before the court through his counsel Shri Akal Raj and contested the suit. That suit was decreed against Shyamsunder by judgment dated 29-11-78. Plaintiff Devisingh, then applied for the execution of the decree and in the execution proceedings, Mohanlal and Gangaram resisted the delivery of the possession and Gangaram also filed a civil suit for permanent injunction against Devi Singh and applied for temporary injunction in Civil Misc. Case No. 443/83, where in, a Commissioner was appointed. The Commissioner filed his report on 3-11-83 and the present petitioner happened to see that report. He thereupon, apprehended that in those execution proceedings, the plaintiff decree holder in that case, was trying to take possesstion of a part of the premises, which, were under the tenancy of the present petitioner. He, therefore filed the present suit for permanent injunction. In this suit, present-petitioner Balchand alleged that he was a tenant of the premises described in para 1 of the plaint since 1953-54 having taken them on rent from Shri Rangraj Chand Bhandari, the predecessor-in-title of the respondent Devisingh. Later on, how ever on a partition between the heirs of Shri Rangraj Charid Bhandari, the suit premises had fallen to the share of Shri Rajendra Singh Bhandari and on receipt of notice from him through his counsel Shri Kedar Chand Bhandari, he started paying rent to him since 1-4-73. His case, further, was that a part of the premises on which the plaintiff decree holder Devisingh in the suit filed against Shyamsunder, wanted to take possession, was not the part of the premises said to have been let out to Shyamsunder, but is part of the premises under the tenancy of the present plaintiff-petitioner and, therefore, the degree holder was not entitled to take possession of that part of the land. The exact description of the part of the land, which was in dispute, was not mentioned by the plaintiff in the plaint, but it was stated that that portion was marked 'b' in the report filed by the Commissioner in Misc. Case No. 443/83. He prayed for a permanent injuncion against respondent No. 1 Devisingh restraining him from dispossessing the plaintiff-petitioner from the land in dispute.

(2.) ALONG with the suit, he also filed an application under O. 39, Rr. 1 and 2, C. P. C. supported by his affidavit, asking for a temporary injunction. Defendant Devisingh contested that application, although he had not filed his written statement. The case set out by him in the reply to the application for temporary injunction was that plaintiff Balchand was not a tenant of Shri Rangraj Chand Bhandari or Shri Rajendrasingh. As a matter of fact, the premises in dispute was a part of the premises which were under the tenancy of one Kalu Ram and on the death of Kalu Ram, Shyamsunder became the tenant thereof but he sub-let the premises to Mohanlal and Mohanlal sub-let a part of the premises to the plaintiff-petitioner. It appears that in para 1 of the plaint, plaintiff-petitioner has referred to the land in dispute as VADIKA' and the defendant, taking it to be appeal of ownership over the land, denied his ownership and plea his own and in support of that produced certain pattas. He also filed a site-plan in which* the land in dispute has been shown as 'cdfe' and has been marked by blue lining and it is alleged that it was the part of the premises, which were on rent with Shyamsunder and whole of the premises have been marked as 'abfe'. From the plan, it also appears that there is a dividing wall at FE between the property on rent with Shyamsunder and that which has been claimed to be under the tenancy of the plaintiff. The defendant also filed his affidavit along with that of Shri Rajendra Singh as also of one Shri Chandra Mohan, who had done the patta-setting. After taking into consideration the material on record and hearing the learned counsel for the parties, the trial court dismissed the application for temporary injunction by its order dated 20-7-1987. The court came to the conclusion that the plaintiff has failed to establish prima facie case. The boundaries of the disputed land have not been clealy mentioned and it has not been even prima facie established that the plaintiff was in possession of the disputed land as tenant and in the absence of the prima facie case, the balance of convenience was also not in his favour and he would not suffer any irreparable injury in the absence of temporary injunction. Plaintiff Balchand went up in appeal against this order and the same was dismissed by the learned Addl. District- Judge No. 1, Jodhpur by his order dated 2-6-1988. He also was of the opinion that the plaintiff had failed to establish his prima facie case and to show his possession over the land in dispute as a tenant of Rajendra Singh, as alleged by him. On the other hand, from the affidavit of Shri Rajendra Singh, it clearly appears that he was not his tenant. It appears that a contention was also raised before the learned Additional District Judge, Jodhpur that even if the plaintiff was taken to be a trespasser, he could hot be dispossessed save in accordance with the process of law and to this he observed that the plaintiff was being dispossessed by the process. Thus, the learned Additional District Judge held that when the plaintiff had failed to established his prima facie case, he was not entitled to any protection.

(3.) IN Collector, Land Acquisition's case (supra), their Lordships of the Supreme Court enumerated certain principles as it was realised that : " (1) Ordinarily a litigant does not stand to benefit by lodging an appeal late; (2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties; (3) "every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner; (4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay; (5) There is no presumption that delay is occasioned deliberately are on account of Culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. INfact he runs a serious risk; (6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. " Applying these principles to the present case, as already pointed out above, the delay has been caused with the purpose of delaying the proceedings and, it cannot, therefore, be said that the present-petitioner did not stand to benefit by lodging the appeal late. On the merits of the matter also, it cannot be said that the petitioner has a meritorious matter. Again, when substantial justice also does not appear to be in favour of the petitioner, it cannot be said that technical consideration of limitation should not be adhered to. Further more, the fact that there is no presumption that delay is occasioned deliberately, is also not available to the petitioner in the present case as that the delay does appear to be deliberate so that the petitioner may continue in possession despite the fact that the non-petitioner decree holder has a decree for taking over the possession over the land dispute.