Madhya Pradesh High Court
The Mandsaur Commercial Co ... vs Praveer Ghosh on 24 June, 2022
Author: Anil Verma
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
1
S.A. No. 894 of 2021
Indore, dated 24/6/2022
Shri Padmanabh Saxena learned counsel for appellant.
Shri Prateek Maheshwari learned counsel for respondent
No.1.
Heard on IA No. 1046/2022 which is an application filed by
appellant for recalling the earlier order dated 21.1.2022 passed by
this Court.
Learned counsel for appellant contended that alongwith the
appeal an application for grant of stay has been preferred and same
was registered as IA No. 4177/2021 and while hearing the parties,
this Court had granted stay and directed the parties to maintain
status quo as it exists today and counsel for respondent sought time
to file reply of the application which was given by this court.
Thereafter on 12.1.2022, respondent has filed an application for
vacating the stay order. The case came up before this court on
21.1.2022 through video conferencing and because of some
technical problem, the appellant's counsel failed to join and argue
on said application and screen shot is annexed with the application
and without affording an opportunity to make oral submissions, this
court had allowed the application and stay order dated 14.9.2021
was vacated. The order dated 21.1.2022 is against the principle of
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
S.A. No. 894 of 2021
natural justice and affecting the appellant's right adversely. The
appeal is preferred on strong substantial questions of law and the
appellant has every hope in getting success in it. Therefore, it is
prayed that the order dated 21.1.2022 be recalled and order dated
14.9.2021 be restored.
Per contra, learned counsel for respondent opposes the
application and prays for its rejection by submitting the reply and
contending that the interim order was recalled in the light of the
judgment passed by the Hon'ble Apex court in the case of
Raghvendra Swamy Mutt Vs. Uttaradi Mutt reported in (2016)
11 SCC 265. The screen shot filed by appellant does not fortify
story so projected rather it shows the real conduct of the appellant
who merely to mislead this court has tried to prepare a false story
merely to show its negligence in not appearing before this Court.
The appellant himself does not choose to appear or show reasonable
cause for such non appearance, therefore, it cannot be said that
sufficient opportunity was not granted to appellant, the execution
proceeding has been closed and possession of property in question
has been handed over to respondent by the executing court on
3.3.2022, hence nothing survives in said execution at the present
moment. The appellant cannot be permitted to travel or argue
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
S.A. No. 894 of 2021
behind his pleadings. Hence he prays that application be dismissed
and appropriate action may be taken against the appellant.
I have heard the learned counsel for the parties and perused
the earlier orders.
After perusal of the order dated 21.1.2022, it appears that
nobody had appeared on behalf of appellant. It is submitted by
counsel for appellant that due to some technical error, appellant's
counsel failed to join through VC. He has filed screenshot but the
same does not support his contention. On perusal of the screenshot,
it is clear that counsel for appellant tried for invalid personal room
therefore, due to his negligence he was not able to appear before
this court through video conferencing.
It is proved that by order dated 21.1.2022 this Court has
allowed IA No. 356/2022 which was filed by respondent. The
appellant has given sufficient opportunity of hearing in respect of
said application. The order dated 21.1.2022 passed by this court is
based upon order of Hon'ble court in the case of Raghvendra
Swammy Mutt (supra). In that case it has been held as under:-
"No interim order/interim relief can be granted unless
second appeal is duly admitted upon formulation of substantial
question(s) of law. The High court, herein, rightly vacated its
earlier interim order granting relief, passed in second appeal
without following the aforesaid condition precedent."
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
S.A. No. 894 of 2021
The respondent has filed copy of execution proceedings.
From perusal of the same it appears that after hearing both the
parties the executing court has issued the possession warrant and in
compliance of the possession warrant, possession of property in
question has been handed over to the respondent/landlord. The
execution case has been disposed of in full satisfaction.
During final hearing of this appeal the entire factual aspect
regarding the execution proceedings can be considered and if
appellant succeeds in this appeal, then he would be at liberty to
apply for restoring his possession over the suit property but at this
stage no such order is required.
The Hon'ble Apex court in the case of N.C. Daga Vs. Inder
Mohan Singh Rana reported in (2003) 1 SCC 453 has held as
under:-
In view of the admitted position that pursuant to the
order passed by the Rent Controller, possession has been
taken on execution of the order permitting eviction, and
absence of specific stand regarding implied consent it is,
however, not necessary to go into the finer details and to
examine the rival stand in the background of legal position
as it would amount to rendering decision on a purely
academic question.
This citation is applicable in this case.
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
S.A. No. 894 of 2021
Undoubtedly, on or before 21.1.2022 this second appeal was
not admitted and substantial question of law was not formulated,
therefore, in compliance of the order passed by the Apex court in
the case of Raghvendra Swammy Mutt (supra) no interim order/
interim relief can be granted. Therefore, this court has rightly
allowed IA No. 356/2022. There is no error apparent on the face of
the record. Therefore, no sufficient ground for recalling the order
dated 21.1.2022 is made out.
Hence IA No. 1046/2022 is hereby rejected.
It is an admitted appeal, therefore, registry is directed to list
this appeal for final hearing in due course.
(ANIL VERMA)
JUDGE
BDJ
Digitally signed by
BHUVNESHWAR DATT JOSHI
Date: 2022.06.24 18:45:45
+05'30'
