RAM KRISHNA SINGH & ORS.versusTHAKURJI SHIVJI

                     [2010] 12 S.C.R. 241


               RAM KRISHNA SINGH & ORS.                              A
                                v.
                       THAKURJI SHIVJI
               (Civil Appeal No. 1709 of 2006)

                      OCTOBER 7, 2010
                                                                     B
  [AFTAB ALAM AND CHANDRAMAULI KR. PRASAD,
                    JJ.]

    Uttar Pradesh Urban Buildings (Regulation of Letting, - ·
Rent and Eviction) Act, 1972:                              C
     ss.20(2) and (4) - Suit for eviction and arrears of rent -
Decreed ex-parte - On ex-parte decree having been set
aside, tenant deposited all arrears of rent in court - Application
by landlord for eviction of tenant on the ground that arrears        0
had not been paid on· the first date of hearing - Revisional
court and High Court holding the tenant not entitled to
protection of s.20(4) - HELD: The ex-parte decree was fine!!y
set aside after eight years - Though this may be discounted
because there is the finding of the revisional court that the        E
summons in the suit were not served on the defendant-tenant,
but the conduct of the appellants ( heirs of the original tenant)
in the course of the later proceedings before the courts below
as also before the Supreme Court disentitles them from any
relief - The appellants have conducted the proceedings with
complete lack of seriousness and in a highly cavalier manner         F
- Their writ petition before the High Court was dismissed for
default twice - Meanwhile landlord got the possession of the
suit premises - The way the proceedings took place before
Supreme Court is not very different - The instant appeal too
was dismissed for non-prosecution but was later restored -           G
The landlord is held to ransom for the past more than six years
for absolutely no fault on his part but simply because of the
/aches on the part of the tenants - In the facts of the case,
appeal dismissed leaving the question of law open.
                               241                                   H
    242       SUPREME COURT REPORTS                [2010] 12 S.C.R.


A      Siraj Ahmad Siddiqui v. Prem Nath Kapoor, 1993 (2)
   Suppl. SCR 254 = (1993) 4 SCC 406; Advaita Nand v.
  Judge, Small Causes Court, Meerut & Ors. (1995) 3 SCC
  407; Sudershan Devi & Anr. v. Sushi/a Devi & Anr., 1999 (3)
  Suppl. SCR 238 = (1999) 8 SCC 31; Ashok Kumar & Ors.
B v. Rishi Ram & Ors·., 2002 ( 3 ) SCR 1158 = (2002) 5 sec
    641, referred to.
                          Case Law Reference:
     1993 (2) Suppl. SCR 254 referred to                   para 6
c    (1995) 3 sec 407               referred to            para 6
     1999 (3) Suppl. SCR 238 referred to                   para 6
     2002 (3) SCR 1158              referred to            para 6
D       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    1709 of 2006.

      From the Judgment & Order dated 13.07.2004 of the High
  Court of Judicature at Allahabad in Civil Misc. Petition No.
E 8301 of 1991.

          Tulika Mukherjee (for P. Narasimhan) for the Appellants.

          Swati Sinha (for Fox Manda! & Co.) for_ the Respondent.

F         The following order of the Court was delivered

                               ORDER

        Heard Ms. Tulika Mukherjee, counsel for the appellants and
    Ms. Swati Sinha, counsel appearing for the respondent.
G
         This is a tenants' appeal arising from a suit for eviction and
    arrears of rent under the Uttar Pradesh Urban Buildings
    (Regulation of Letting, Rent and Eviction) Act, 1972 (for short
    'the Act').                                   ·

H
 RAM KRISHNA SINGH & ORS. v. THAKURJI SHIVJI                    243


       The suit was filed in the year 1975 against the original         A
tenant Kali Prasac;t, whose heirs and legal representatives are
now the appellants before this Court. It was decreed ex-parte
on September 25, 1975. When the decree was put to
execution, the tenant filed an application under Order IX, Rule
13, on October 7, 1978 for setting aside the ex-parte decree.           B
This petition was dismissed by the Judge, Small Causes Court,
Gorakhpur. In course of the proceedings before the Small
Causes Court, Kali Prasad had died and was substituted by
his heirs and legal representatives (the present appellants).
They took the matter in revision. The Additional District Judge,        c
Gorakhpur, allowed the revision by order dated January 31,
1983 holding that the summons in the suit were actually not
served on Kali Prasad and hence, the ex-parte decree was
liable to be set aside. Ten days later, on February 10, 1983,
the tenants deposited all the arrears of rent in court. Over two
                                                                        0
and a half years later, on December 13, 1985, the record of
the case was received back in the Small Causes Court and
the proceedings in the suit were resumed before the Small
Causes Court on January 3, 1986. At that stage, a petition was
filed on behalf of the respondent- landlord for allowing the suit       E
and directing the eviction of the tenants on the ground that the
arrears of rent had not been paid on the first date of hearing.
The Small Causes Court did not accept the petition and
proceeded with the suit. Finally, pn February 19, 1988 it
decreed the suit for recovery of arrears of rent but dismissed
it in regard to the relief for eviction holding that the tenants were   F
entitled to the protection under Section 20(4) of the Act.

     In revision, preferred by the respondent, the Revisional
Court held that the appellants-tenants were not entitled to the
protection of Section 20(4) of the Act and were liable to be            G
evicted for non-deposit of the arrears of rent on the first date
of hearing. It, accordingly, allowed the revision and passed the
order of eviction.

     The appellants challenged the order passed by the                  H
    244      SUPREME COURT REPORTS                (2010] 12 S.C.R


A   Revisional Court in a writ petition filed before the High Court,
    which was eventually dismissed and they then brought this
    matter to this Court.

          Ms. Mukherjee, learned counsel contended that the High
    Court and the Revisional Court were seriously in error in taking
8
    the view that the arrears of rent ought to have been deposited
    at the time of the filing of the petition under Order IX, Rule 13
    for recall of the decree. She submitted that the summons of the
    suit issued by the Small Causes Court were not received by
    Kali Prasad, as held and found by the Revisional Court, while
C   setting aside the ex-parte decree. Therefore, the date
    mentioned in the summons for the appearance of the tenant
    and the first date of hearing of the case had no application to
    the facts of the case. She further submitted that in the facts of
    this case, the deposit of the arrears of rent within a few days
D   of the setting aside of the ex-parte dei;ree and long before the
    proceedings in the suit resumed must be deemed to be
    complete compliance with the requirement of Section 20(4) of
    the Act. In support of the submission, she relied upon decisions
    of this Court in (i) Siraj Ahmad Siddiqui v. Prem Nath Kapoor,
E   (1993) 4 SCC 406 (paragraphs 13, 15 & 16); (ii) Advaita Nand
    v. Judge, Small Causes Court, Meerut & Ors., (1995) 3 SCC
    407 (paras 7,8 & 11 ); (iii) Sudershan Devi & Anr. v. Sushi/a
    Devi & Anr., (1999) 8 SCC 31 (paras 14, 21, 27 & 31) and
    (iv) Ashok Kumar & Ors. v. Rishi Ram & Ors., (2002) 5 SCC
F   641 (paras 6, 7 & 8).

        The submissions made by Ms. Mukherjee, cannot be said
  to be entirely without substance and may call for a
  consideration by this Court in an appropriate case. In the facts
  of this case, however, we are not inclined to exercise our
G jurisdiction under Article 136 of the Constitution in favour of the
  appellants. It is noted above that the respondent's suit was
  originally decreed ex-parte on September 25, 1975 and the
  petition for setting aside the decree was made on October 7,
  1978. The ex-parte decree was finally set aside on January 31,
H
 RAM KRISHNA SINGH & ORS. v. THAKURJI SHIVJI                  245


1983. We may discount the eight years, thus, wasted because           A
there is the finding of the Revisional Court that the summons
in the suit were not served on Kali Prasad, the defendant-
tenant. But the conduct of the appellants in course of the later
proceedings disentitles them from any relief.
                                                                      B
     It is noted above that the appellants challenged the order
of their eviction passed by the Revisional Court in a writ petition
(Civil Misc. Writ Petition No.8301 of 1991) filed before the
Allahabad High Court. That writ petition was first dismissed for
default on March 11, 2002. The dismissal of the writ petition         C
revived the execution proceedings instituted on the basis of the
order of the Revisional Court and the respondent-landlord got
the possession of the suit premises on May 31, 2002.
Thereafter, the writ petition was restored by order dated
September 5, 2002. It was dismissed for a second time, once
again for default on September 1, 2003, but was again restored        D
by order dated October 22, 2003. It was finally dismissed on
merits by the impugned order passed on July 13, 2004.

     The way the proceedings took place before this Court is
not very different. The present appeal too was dismissed for          E
non-prosecution by order dated April 8, 2010 and it was later
restored by order dated May 14, 2010.

     It is, thus, obvious that the appellants have conducted the
proceedings in this case with complete lack of seriousness and
in a highly cavalier manner.
                                                                      F

      It is true that in this appeal an interim order was passed
directing the respondent not to create any third party interests
in the suit premises during the pendency of this appeal, but this
order was passed on March 20, 2006. The respondent had got            G
possession of the suit premises on May 31, 2002, that is to
say about four years earlier. It is not known whether or not the
suit premise was rented out in the meanwhile. If it was in fact
let out on rent to a third party, any order passed in this case in
favour of the appellants-tenants is bound to create further           H
    246     SUPREME COURT REPORTS               [2010] 12 S.C.R.


A complications. Even otherwise it would appear that the
  respondent is held to ransom for the past more than six years
  for absolutely no fault on his part but simply because of the
  !aches on the part of the appellants.

       Ms. Mukherjee submitted that there was no !aches or
8
  negligence on the part of the appellants and the writ petition
  before the High Court and the appeal before this Court were
  dismissed due to oversight on the part of the concerned lawyers.
  We are unable to accept this as sufficient justification for
C penalizing the respondent.

        In the facts of this case, as noted above, we are not
  inclined to pass any order in favour of the appellants. The
  appeal is dismissed leaving the question of law raised by Ms.
  Mukherjee open. Before parting with the record of the case, we
D would like to record our appreciation for both Ms. Tulik!!
  Mukherjee and Ms. Swati Sinha, counsel for the appellants and
  respondent, respectively, for the assistance rendered by them
  to the Court.

    R.P.                                      Appeal dismissed.