Nishant Singh vs Ajay Chopra And Another
2023 Latest Caselaw 20841 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:157674
 
Court No. - 4
 
Case :- MATTERS UNDER ARTICLE 227 No. - 2106 of 2022
 
Petitioner :- Nishant Singh
 
Respondent :- Ajay Chopra And Another
 
Counsel for Petitioner :- Santosh Kukmar Tiwari,Preeti Singh
 
Counsel for Respondent :- Abhinav Gaur,Vibhu Rai
 

 
Hon'ble Prakash Padia,J.

1. The petitioner has preferred the present petition inter-alia with the following prayer:-

"I. To set-aside the impugned order 15.03.2022 has dismissed the application registered as Miscellaneous case number 56/2021 under order IX rule 13 CPC for restoration of the order dated 18.09.2021 and also order dated 23.03.2022, the Ld. Trial Court has directed that "The concerned Amin is ordered to authorize the execution of the order to dispose of the disputed property from flat number KA59, 2nd floor, Kaushambi, Ghaziabad tehsil and district Ghaziabad, whose area is 140.34 sq.m. and fixed the date 31.03.2022 for further hearing, having evicted the agents and other persons on his behalf, give his actual and physical attention to the decree holders and after recovering the amount mentioned in the decree from the judgment debtor, deposit it in the court." in Execution Case No. 111/2021.

II. To direct the trial court not to adopt any coercive steps against the petitioner to dispossess the disputed property from flat number KA59, 2nd floor, Kaushambi, Ghaziabad tehsil and district Ghaziabad, whose area is 140.34 sq.m.."

2. The following order was passed on 26.07.2023:-

"1. On 03.07.2023 following order was passed by this Court :-

"Heard Sri Santosh Kumar Tiwari, learned counsel for the defendant-petitioner, Sri Anoop Trivedi, learned Senior Counsel assisted by Sri Vibhu Rai and Sri Abhinav Gaur, learned counsel for plaintiffs-respondents.

The present petition under Article 227 of the Constitution of India has been filed by the defendant-petitioner challenging the order dated 15.3.2022 by which the application filed by the defendant-petitioner, which was registered as Misc. Case No. 56 of 2021 under Order IX Rule 13 C.P.C. for restoration of the order dated 18.9.2021 and also the order dated 23.3.2022 was rejected.

The facts in brief as contained in the present petition is that the plaintiffs- respondents have rented the premises in question i.e. Flat No. K.A.-59, Second Floor, Kaushambi, Ghaziabad measuring area 140.34 Sq. meter to the defendant- petitioner by a registered agreement for a period of 11 months i.e. 25.5.2018 to 24.4.2019 a the rate of Rs.30,000/- per month but after a period of 11 month, the defendant-petitioner was not vacated the premises.

Since, neither the rent was paid nor the premises was vacated by the defendant-petitioner, the plaintiffs-respondents have filed the suit for eviction, payment of arrears of rent along with other consequential reliefs against the defendant-petitioner, who is residing in the suit property till date. The suit was registered as SCC Suit No. 31 of 2019. The aforesaid suit was decided ex parte in favour of the plaintiffs-respondents by the Additional District and Sessions Judge, Court No. 7, Ghaziabad vide order dated 18.9.2021. By the aforesaid order, the present petitioner (defendant in the suit) was directed to evict the premises within a month from the date of the order. Further direction was given to make the payment of due rent i.e. Rs.1,05,000/-, as well as house tax, water tax, electricity bill, maintenance charges, society charges. Further direction was given to the defendant-petitioner to make payment of Rs. 33,000/-, per month as damages till the time of peaceful possession handed over to the landlord.

Since the aforesaid order was not complied with by the defendant-petitioner, the Execution Case No. 8 of 2021 (Ajay Chaudhary vs.Nishant Singh) was filed by the plaintiffs-respondents in which an order was passed by the execution court on 23.3.2023. In the meantime, a restoration application as provided under Order IX Rule 13 C.P.C. was filed by the defendant-petitioner, which was rejected by the court below vide order dated 15.3.2022. Aggrieved against the aforesaid orders dated 15.3.2022 by which the restoration application was rejected and 23.3.2022 passed by execution court, the present petition has been filed by the petitioner.

It is admitted between the parties that the premises in question was given on lease for a period of 11 months at the rate of Rs.30,000/-, per month.

It is argued by learned counsel for plaintiffs- respondents that the rent was not regularly paid by the defendant-petitioner, who is tenant of the premises in question.

This fact is also admitted by the learned counsel appearing on behalf of defendant- petitioner.

After some arguments, a prayer has been made by learned counsel for the petitioner that the tenant will pay the entire rent up-to-date to the landlord and also vacate the premises but some considerable time be granted by this Court. An undertaking was also given by him that he will place a bank draft of Rs.1,00,000/-, in favour of the landlord by the next date fixed in the matter.

In this view of the matter, the counsel for the petitioner is granted a week's a file an affidavit in this regard.

Put up this matter in the additional cause list on 10.7.2023 within top ten cases.

On the said date apart from filing of the affidavit as stated above, the counsel for the petitioner will also place the bank draft of Rs.1,00,000/-, in favour of the landlord."

3. Pursuant to the same, supplementary affidavit has been filed by the petitioner, the same is taken on record. It is stated in the aforesaid affidavit that due to health issues faced by the deponent's family member, he will deposit the outstanding amount of Rs. 7,85,000/- in 12 month installment of Rs.65,417/- each month starting from 01.09.2023 to 01.09.2024 and vacate the premises within 3 months from the date i.e. 07.08.2023 to 07.11.2023. Paragraph-11 of the aforesaid affidavit reads as follows:-

"11. In present unavoidable circumstances, the deponent is seeking mercy of this Hon'ble Court. It is submitted that considering the above mentioned circumstances i.e. the monetary privation and the health issues faced by the deponent's family member, the stipulated time period to deposit the outstanding amount of Rs. 7,85,000/- in 12 month installment of Rs. 65,417/- Rs. each month starting from 01.09.2023 to 01.09.2024 and vacate the premises within 3 months from this date i.e. 07.08.2023 to 07.11.2023."

4. Shri Anoop Trivedi, learned Senior Counsel assisted by Shri Vibhu Rai, learned counsel for the respondent (landlord) has no objection.

5. Considering the fact that petitioner will vacate the premises within a period of three months from today i.e., 07.08.2023 to 07.11.2023, with following condition;

(i) Defendant-petitioner is directed to file affidavit within two weeks from today before Additional District Judge, Court No.7, Ghaziabad to vacate the house in question within the time given by the Court;

(ii) Defendant-petitioner is directed to deposit all decretal amount within four weeks from today before Additional District Judge, Court No.7, Ghaziabad. In case, any amount is already deposited, same shall be adjusted against the decretal amount;

(iii) Defendant-petitioner is also directed to pay rent of house in question on month to month basis on or before 7th day of every month till the vacation of house in terms of first two conditions;

(iv) In case of failure of fulfillment of any conditions so imposed by the Court, this order would lost the effect and plaintiff- respondent is at liberty to proceed against the defendant- petitioner in accordance with law.

6. With the aforesaid observations, petition is disposed of.

7. It is made clear that no liberty is given to the petitioner to file fresh petition for the very same cause of action.

Order Date :- 7.8.2023

Swati