Krishna vs State Nct Of Delhi & Ors
2013 Latest Caselaw 766 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+        F.A.O. NO.147 OF 2008 & C.M. NOS.16745-16747 OF 2011
                 AND C.M. NOS.16833-16834 OF 2012

                                        Decided on : 15th February, 2013

KRISHNA                                           ..... Appellant
               Through:     Mr. Madan Gopal Vacher, Advocate.


                         Versus

STATE NCT OF DELHI & ORS                            ..... Respondents

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is an appeal filed by the appellant under Order 43 CPC against

the order dated 17.3.2008 and 21.4.2008 passed by the learned Additional

District Judge in miscellaneous application filed under Order 39 Rule 2A

read with Section 151 CPC in Probate Case No.324/2001.

2. The appeal had come up for hearing for the first time on 29.4.2008

when notice was ordered to be issued to respondent Nos.2 and 3 and in

the meantime, operation of the impugned order was directed to be stayed.

This appeal was dismissed in default for non-prosecution on 2.8.2010

whereupon, three applications bearing Nos.16745/2011 (for restoration of

appeal), 16746/2011 (for stay) and 16747/2011 (for condonation of delay

in filing the restoration application) were filed which are still pending.

3. Before dealing with these three applications, it would be pertinent

to mention the brief background of the case as to why this appeal has

been filed.

4. The respondent Nos.2 and 3 herein had filed a petition bearing

No.324/2001 titled Kamlesh Kumar & Anr. Vs. State & Ors. for grant of

probate of Will dated 2.9.1992 allegedly executed by their mother

Veeranwali. With the consent of the parties, the learned District Judge

passed an order dated 14.5.1996 on the application under Order 39 Rules

1 & 2 CPC directing the present appellant and respondent Nos.2 to 5 in

the probate petition including one Rakesh Kumar (respondent No.2 in the

probate petition), husband of the present appellant, not to create any third

party interest or to transfer the property bearing No.D-11, Vijay Nagar,

Delhi, till further orders. Rakesh Kumar (respondent No.2 in the probate

petition) was stated to have expired during the pendency of the probate.

The present appellant was appointed as the guardian ad litem of the

minor children of Rakesh Kumar and his legal heirs were brought on

record on 27.10.1999. The court granted the probate on the basis of the

Will vide judgment dated 17.8.2005. The respondent Nos.2 and 3 herein,

who were the petitioners in the probate petition, filed two separate

applications under Order 39 Rule 2-A CPC dated 2.12.2002 and

23.5.2003, stating that the present appellant had let out a portion of the

premises No.D-11, Vijay Nagar, New Delhi to M/s. Indus Ind. Media &

Communication Ltd. at a monthly rent of `3,000/- with effect from

1.5.2000. The present appellant filed reply to the application and

thereafter, the arguments were heard by the learned Additional District

Judge, recorded a finding that the appellant, Krishna, had committed a

willful contumacious violation of the orders passed by the trial court and

passed an order dated 2.12.2002.

5. The trial court held the appellant guilty for violating the stay order

on 17.3.2008. The appellant was, accordingly, directed to deposit the rent

derived by this violation, with the court. This was not done.

Subsequently, a detailed order of sentence was passed on 21.4.2008 that

as she did not deposit the rent purported to have been received by her

despite repeated orders dated 30.10.2003, it clearly showed that she had

scant regard for the law and the facts call for severe punishment but still

keeping in view the fact that the alleged contemnor was a lady and that

too a widow, a punishment of civil imprisonment for three days was

imposed on her and the respondent Nos.2 and 3 were directed to deposit

the subsistence allowance of `250/- with Civil Nazir.

6. These are the two orders which are assailed by the appellant in the

present appeal and the operation of this civil imprisonment was stayed by

this court on 29.4.2008.

7. After the respondents were served, the matter was referred to the

mediation cell for exploring the possibility of an amicable settlement;

however, the same did not yield any result. The appellant during all these

years, had been postponing the arguments on the main matter and not

prosecuting the matter with sincerity as a consequence of which, the

appeal was dismissed in default on 2.8.2010 which resulted in filing of

the abovementioned applications.

8. My learned predecessor while considering these applications

passed the following order on 14.9.2011 :-

"Though there are absolutely no grounds for condonation of delay and for restoration of the appeal which was dismissed way back on 2.8.2010, however, considering the fact that the impugned order directed civil imprisonment for three days for repeated violation of an injunction order, in the interest of justice, I deem it fit to issue notice in these applications. However,

notice be issued subject to the appellant, within a period of two weeks from today, depositing in this court, the amounts which were received from the tenants, who were inducted in the property in violation of the injunction order passed by the trial court. Alongwith deposit of the aforesaid amount, the appellant will file an affidavit supported by the bank account of the appellant with respect to the amounts received from the tenants if the same are received in cheque or alongwith receipts if the payments of rent are received in cash. In case, the amounts received from the tenants in violation of the injunction order and details of which are given in the impugned order appealed against, are not deposited within two weeks, these applications will be deemed to be dismissed.

After compliance of the aforesaid order, notice be issued to respondent Nos.2 and 3, in these applications, on filing of process fee, both in the ordinary method as well as by registered post AD, returnable on 28th November, 2011."

9. A perusal of the aforesaid order clearly gives the inside of the mind

of the court that though the court was not inclined to condone the delay

and restore the appeal to its merit; however, keeping in view the fact that

the appellant was a lady and there was a civil imprisonment of three days'

imposed on her for repeated violation of her injunction order, in the

interest of justice, notice was issued on these applications which was

subject to the condition that the appellant shall deposit the amounts,

which were received by her from the tenants, who were inducted in the

property in violation of the injunction order passed by the trial court

within a period of two weeks. Along with the deposit of the aforesaid

amount, the appellant was also directed to file an affidavit supported by

bank account of the appellant with respect to the amounts received by her

from the tenants either by way of cheque or by way of cash.

10. It may be pertinent here to mention that despite the matter having

been adjourned on as many as six occasions since then, neither the

amount has been deposited nor the affidavit has been filed till date. A

perusal of the order sheets dated 28.11.2011, 23.1.2012, 9.2.2012,

24.4.2012, 26.4.2012 and 24.9.2012 will clearly show that the appellant

had been repeatedly escaping the compliance of the order passed by my

learned predecessor and taking all sort of flimsy excuses. No sincere

effort seems to have been made to comply with the orders of the court or

to deposit the money which clearly shows that the attitude of the

appellant towards this appeal is not serious and she was showing

absolutely scant regard for the orders of the court. It gives an impression

as if the court itself was being taken for granted. Under these

circumstances, I feel that it is this over indulgence which, if shown to the

litigants, breeds contempt for court and brings disrespect to the system

because the appeal which ought to have been decided in two or three

hearings at best but is kept pending unduly for long period of time. It has

been almost five years now but the appeal is still pending, even when the

appellant is fully aware that certain directions, which were given by the

court, were to be complied with.

11. Under these circumstances, I am left with no other option, but to

treat non-compliance of the order dated 14.9.2011 as a pre-condition to

the restoration of the appeal. Since the amount has not been deposited

and affidavit has not been filed, therefore, the application for restoration

of the appeal is dismissed. Even the application seeking condonation of

delay also does not show any sufficient cause in terms of Section 5 of the

Limitation Act for belated filing of the restoration application, when the

appellant had full knowledge that the appeal had been filed.

12. Accordingly, all the pending interim applications also stand

dismissed.

13. At this stage, the learned counsel for the appellant has flashed an

FD stating that he had kept the FD dated 23.11.2011 ready. It is no good

to contend before this court that an FD was ready in the year 2011, when

the amount was to be deposited with the Registrar General of this court

within two weeks in terms of the order dated 14.9.2011.

14. A copy of this order be sent to the trial court for the purpose of

information and compliance so as to bring the process of law to its logical

conclusion.

V.K. SHALI, J.

FEBRUARY 15, 2013 'AA'