Delhi High Court
Zumrud vs Irshadullah & Ors. on 10 February, 2017
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CONT.CAS(C) 1271/2016
ZUMRUD ..... Petitioner
Through: Mr. Diwan Singh Chauhan, Advocate.
versus
IRSHADULLAH & ORS. ..... Respondents
Through: Mr. Nakul Sachdeva, Advocate with
respondents in person.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
ORDER
% 10.02.2017
1. Appearance is entered by learned counsel for the respondents.
2. The petitioner (respondent in RFA 360/2013) had succeeded in a suit
for possession instituted against the respondents, that was decreed in his
favour as long back as on 23.4.2013. Vide order dated 02.3.2016 passed in
the appeal, it was directed that the subject to the respondents herein
(appellants in the appeal) depositing the use and occupation charges in
respect of the suit premises @ Rs.12,000/- per month with effect from April,
2013 till March, 2016 and further, subject to their continuing to deposit the
said amount on a month to month basis, on or before the 15th day of the
month, there would be a stay of the execution. The said amount was directed
to be deposited within four weeks.
3. Instead of complying with the order dated 02.3.2016 within the
stipulated time, the respondents/appellants filed an application for
modification of the said order (C.M. NO. 13370/2016) stating inter alia that
the property is incapable of fetching more than Rs.6,000/- per month and
therefore, directions to deposit a sum of Rs.12,000/- per month may be
modified. Describing the said application as malafide, the predecessor
Bench had declined to modify the order dated 2.3.2016 while observing that
the submissions made on behalf of the appellant that the property is not
capable of fetching more than Rs.6,000/- per month is an afterthought. At
that stage, counsel for the respondents/appellants had sought extension of
time to deposit the arrears. The said request was acceded to and the time
granted in terms of the order dated 2.3.2016, was extended to six weeks. The
period of six weeks reckoned from 02.3.2016, would have expired on
13.4.2016. However, the respondents/appellants did not deposit the said
amount. Instead, on 27.5.2016 they filed yet another application asking for
extension of time.
4. Vide order dated 01.6.2016, the timeline to deposit the amounts was
yet again extended on an undertaking given by the respondents/appellants
that they shall comply with the earlier order, on or before 11.7.2016. At that
time, it was made clear to them that if the amounts are not deposited as was
undertaken, not only would the interim order be vacated, the court would be
inclined to proceed against them for contempt on account of breach of the
undertaking. Despite the same, the respondents did not comply with the said
order and deposit the amount as undertaken by them. Instead, they merrily
sat back till the petitioner/respondent filed the present petition for initiating
contempt proceedings against them on the ground of breach of undertaking
given to the court in the Appeal.
5. Except for tendering a lame apology, there is no explanation worth the
name offered by learned counsel for the respondents for the gross breach of
the order dated 01.6.2016, in which the consequences of non-compliance
were clearly spelt out. In the absence of any explanation for non-
compliance, the said apology cannot be accepted. The respondents have
continued to remain in occupation of the suit premises for almost 3 years
after suffering a decree of possession, without paying a penny to the
petitioner in all this duration.
6. The Court is not inclined to accept the submission made by learned
counsel for the respondents that now that his clients were unable to arrange
the funds earlier hereto and now that they have been able to do so, the same
may be permitted to be deposited in the Registry.
7. The interim order dated 02.3.2016 passed in RFA 360/2013 is
vacated. The petitioner (respondent in RFA 360/2013) is entitled to seek
execution of the impugned judgment and decree dated 23.4.2013 in
accordance with law. Needless to state that the same shall be subject to
restitution in the event the respondents herein (appellants in the appeal),
succeed in the appeal.
8. The petition is disposed of.
HIMA KOHLI, J
FEBRUARY 10, 2017
ap
