Nirmaladevi Hargovind Agrawal ... vs M/S. Saurkar Associates, ...
2017 Latest Caselaw 9178 Bom

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                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                 NAGPUR BENCH : NAGPUR


                                                      WRIT PETITION NO.6769/2017

1.          Nirmaladevi Hargovind Agrawal,
            aged about 73 Yrs., Occu. Occu. Nil. 

2.          Mahesh Hargovind Agrawal,
            aged about 45 Yrs., Occu. Service. 

            Both R/o Flat No.B-405, 4th Floor, 
            Shri Ganesh King Circle, Behind 
            IMA Hall, Camp, Amravati, Tq. and 
            Distt. Amravati.                                                                                                                                  Petitioners.
                                                                                                                                                            ..            
                          ..Vs..
            M/s. Saurkar Associates, 
            a Partnership Firm, through its 
            Partner Keshav Pandurangji Saurkar, 
            aged about 79 Yrs., Occu. Business, 
            R/o Sakkarsath, Amravati, Tq. and 
            Distt. Amravati.                                                                                                                         Respondent.
                                                                                                                                                   ..           
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            Shri H.P. Jain, Advocate h/f Shri N.R. Saboo, Advocate for the petitioners.
            Shri R.V. Shiralkar, Advocate for the respondent. 
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                                                                CORAM :  Z.A. HAQ, J.

                                                                DATE  :     29.11.2017.                                              

ORAL JUDGMENT

1.                        Heard.



2.                        Rule.   Rule made returnable forthwith.

3. The respondent had filed Special Civil Suit No.5/2005 against the

present petitioners praying for decree for possession of immovable property.

The defendants failed to appear in the suit, the suit proceeded ex parte against

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them and was decreed by the judgment dated 28 th September, 2006. The

defendants / judgment debtors filed an application under Order IX Rule 13 of

the Code of Civil Procedure, praying that the ex parte judgment and decree be

set aside. As there was delay in filing application under Order IX Rule 13 of

the Code of Civil Procedure, an application praying for condonation of delay

was also filed. The learned trial Judge rejected the application filed by the

judgment debtors under Order IX Rule 13 of the Code of Civil Procedure by

order dated 15th June, 2012. Being aggrieved by the order passed by the trial

Court, the judgment debtors filed appeal under Order 43 Rule 1(d) of the Code

of Civil Procedure which is dismissed by the impugned judgment.

4. The learned trial Judge dismissed the application filed by the

judgment debtors under Order IX Rule 13 of the Code of Civil Procedure on

merits without adverting to the application filed by them praying for

condonation of delay. The learned District Judge while considering the appeal

filed by the judgment debtors noticed that the trial Court failed to consider the

application filed by the judgment debtors praying for condonation of delay. The

learned District Judge himself examined whether there was any substance in

the application which was filed by the judgment debtors before the trial Court

for condonation of delay. The learned District Judge recorded that the

justification given by the judgment debtors for inordinate delay was not

satisfactory. The learned District Judge also examined the merits of the

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application filed by the judgment-debtors under Order IX Rule 13 of the Code

of Civil Procedure and concurred with the conclusions of the trial Judge and

dismissed the appeal.

5. In my view, once the learned District Judge found that the application

filed by the judgment debtors praying for condonation of delay was not

considered by the trial Court, the matter should have been remitted to the trial

Court for its consideration. The learned District Judge committed an error by

directly considering the application which was filed before the trial Court

praying for condonation of delay.

The learned trial Judge also could not have considered the

application filed by the judgment debtors under Order IX Rule 13 of the Code

of Civil Procedure overlooking the application filed by the judgment debtors

praying for condonation of delay.

6. The petitioners / judgment debtors claim that they had been in

occupation of the property as tenant. According to them, the rent agreed

between the parties was Rs.3,000/- per month, excluding the statutory

charges / taxes. In the plaint, it is the case of the decree holder that there was

some preliminary talks between the decree holder and the judgment debtors in

first week of March, 2003 that the flat would be leased out on monthly rent of

Rs.3,500/- per month and on deposit of security amount of Rs.51,000/-,

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however, the defendant No.2 had issued a cheque for Rs.11,000/- and assured

to pay the balance amount of Rs.40,000/- towards security deposit, in the first

week of April, 2003 cheque for Rs.40,000/- was given by the defendants but on

presenting it to the bank, it was dishonoured and, therefore, the proposed

agreement of lease could not materialize. According to the plaintiff, when the

cheque for Rs. 40,000/- was given, the defendant No.2 had requested for keys

of the flat to perform puja and after getting keys he occupied the flat and

refused to vacate.

7. Considering the pleadings on the record and the admitted fact that

the defendants have not paid anything towards rent/occupation charges to the

plaintiff since April, 2003 though the defendants are occupying the flat owned

by the plaintiff, in my view, the defendants should be directed to deposit the

amount towards occupation charges before the trial Court.

8. In view of the above, the following order is passed:

(i) The petitioners / judgment debtors shall deposit amount towards

occupation charges at the rate of Rs.3,500/- (Rs. Three Thousand Five

Hundred) per month from 1st April, 2003 till 31st January, 2018 before the trial

Court till 31st January, 2018.

(ii) The learned Advocate for the petitioners / judgment debtors has

submitted that the petitioners have deposited an amount of Rs.3,00,000/-

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(Rs. Three Lakhs) before the trial Court. This amount shall be adjusted and

balance amount shall be deposited by the petitioners till 31st January, 2018.

(iii) The petitioners shall continue to deposit occupation charges at the

rate of Rs.3,500/- (Rs. Three Thousand Five Hundred) per month from 1 st

February, 2018 until further orders are passed by the trial Court regarding

deposit of occupation charges. This amount shall be deposited till 10 th of every

month starting from February, 2018.

(iv) The amount of Rs. 3,00,000/- deposited by the judgment-debtors

be given to the decree-holder. On deposit of further amount as per this

judgment, the decree-holder be given amount, calculating the entitlement of

the decree-holder at the rate of Rs. 03,000/- per month. While disbursing this

amount, the amount of Rs. 3,00,000/- given to the decree-holder be adjusted.

(v) The order passed by the learned District Judge in Miscellaneous

Civil Application No.38/2012 on 10th August, 2017 is set aside.

(vi) The order passed by the trial Court in R.M.J.C. No.97/2008 on 15 th

June, 2012 is also set aside.

(vii) The matter is remitted to 2nd Joint Civil Judge, Junior Division,

Amravati for considering the application filed by the petitioners / judgment

debtors praying for condonation of delay in filing R.M.J.C. No.97/2008.

(viii) The parties shall appear before the learned 2 nd Joint Civil Judge,

Junior Division, Amravati on 10th January, 2018 and abide by further orders in

the matter.

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The writ petition is disposed in the above terms.

In the circumstances, the parties to bear their own costs.

The learned Advocate for the respondent has submitted that the trial

Court be directed to dispose the proceedings within six months.

Considering the nature of dispute and the fact that the respondent is

pursuing his claim for decree for possession since 2005, the learned trial Judge

is directed to dispose the proceedings till 5th May, 2018.

JUDGE

Tambaskar.