Uttarakhand High Court
Pooja Sharma vs Soma Devi & Another on 11 January, 2024
Author: Pankaj Purohit
Bench: Pankaj Purohit
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No.134 of 2024
Pooja Sharma ........Petitioner
Versus
Soma Devi & another ........Respondents
Presence:-
Mr. Shubhang Dobhal, learned counsel for the
petitioner-defendant.
Hon'ble Pankaj Purohit, J. (Oral)
By means of this writ petition, petitioner has
challenged the order dated 16.12.2023, passed by 1st
Additional District Judge, Haridwar in Civil Appeal No.27
of 2022, annexure-10 to the writ petition, whereby an
application No.17C2 and objections No.26C2 moved by
the respondent-plaintiff was allowed and petitioner-
defendant was directed to deposit the entire decreetal
amount before the next date fixed i.e. 10.01.2024.
2. Heard learned counsel for the petitioner.
3. The suit filed by the respondent-plaintiff was
decreed by judgment and decree dated 07.05.2022 and
the counter claim for permanent injunction filed by the
petitioner-defendant no.2 was dismissed and the
petitioner-defendant no.2 was directed to handover the
possession of the subject matter of the property to the
respondent-plaintiff within 30 days and to deposit the
user charges i.e. mesne profit @ Rs.1,000/- per month
from the date of institution of suit
till the date of decree. The petitioner-defendant no.2
feeling aggrieved filed a Civil Appeal No.27 of 2022 before
the learned District Judge challenging the said decree
and while admitting the appeal for hearing, the judgment
and decree was stayed till the next date of listing i.e.
14.07.2022, provided the entire decreetal amount is
deposited by the appellant within a week. The said order
was passed by the learned First Appellate Court on
20.05.2022.
4. In compliance of the interim order dated
20.05.2022 passed by the Appellate Court, petitioner had
deposited a sum of Rs.555/-, the decree amount i.e. rent
of the property while no amount towards the mesne
profit/user charges were deposited. The respondent-
plaintiff has moved application before the appellate court
asking for vacating the stay order as the petitioner-
defendant no.2 has not deposited the entire decreetal
amount including the mesne profit.
5. From the endorsement made in the
application, it is reflected that the application was not
pressed simply for the reason that it did not contain the
signature of the respondent-plaintiff. Petitioner,
thereafter, moved another application on 25.02.2023,
annexure-9 to the writ petition, praying to vacate the
stay order, as made in the earlier application for the
reason that the order dated 20.05.2022, by which decree
dated 07.05.2022 was stayed, was not complied with,
since the stay order was conditional one, the same stood
vacated.
6. The objection was filed by the petitioner-
defendant to the said application and it has been stated
that the petitioner has got the first application dismissed
as not pressed, therefore, the second application is not
maintainable. Learned 1st Additional District Judge,
Haridwar did not find favour with the objection made by
the petitioner-defendant no.2 and allowed the application
moved by the petitioner and directed the petitioner to
deposit the entire decreetal amount till the next date
fixed i.e 10.01.2024, as stated above.
7. It is submitted by learned counsel for the
petitioner that the order passed by learned appellate
court is bad in law for the reason that the petitioner
cannot move subsequent application once his earlier
application is dismissed as not pressed.
8. Having gone through the record of the case,
this Court does not find any substance in the arguments
advanced on behalf of the petitioner-defendant, simply
for the reason that the earlier application was not
pressed for a technical reason i.e. the application does
not contain any signature of the respondent-plaintiff. The
entire amount which was due against the respondent-
defendant no.2 on the date of passing the decree is
clearly explicited from the judgment and decree dated
07.05.2022.
9. The petition is dismissed accordingly.
(Pankaj Purohit, J.)
11.01.2024
AK
