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MOHD. NADEEM versus SAYYED ANJARUL HASSAN

High Court of Judicature at Allahabad

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Mohd. Nadeem v. Sayyed Anjarul Hassan - CIVIL REVISION No. 124 of 2006 [2006] RD-AH 6868 (29 March 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.55

Civil Revision No.124 of 2006

Mohd. Nadeem       Vs.       Sayyad Anjarul Hassan

Hon'ble Prakash Krishna, J.

This revision is directed against the order dated 14th of March, 2006 whereby the court below has rejected the application filed by the present applicant for setting aside the exparte decree in S.C.C. Suit No.6 of 2001. The opposite party filed S.C.C. Suit No.6 of 2001 against the applicant for recovery of arrears of rent and ejectment of the applicant. The said suit was decreed exparte on 25th of August, 2003.  Thereafter an application was filed by the present applicant for setting aside the exparte decree which has been rejected by the court below on the ground that the applicant has failed to prove that he was prevented by sufficient cause to appear on the date fixed.

The application for setting aside the exparte decree was filed by the applicant on the ground that he fell ill on 20th of August, 2003, when the case was fixed for 21st of August, 2003. In support of his allegation, a medical certificate  was also filed.  The said application has been rejected by the court below on three grounds.  The trial court has found that by the order dated 6th of August, 2003 the suit was ordered to proceed exparte. No explanation has been given by the applicant for non appearance on 6th of August, 2003. Thereafter, 14th August, 2003 was the next date fixed.  Even then the applicant did not appear on that date.  Ultimately, hearing was concluded on 21st of August, 2003 and the exparte judgment was passed on 25th of August, 2003. Shri Manish Goel, learned counsel for the applicant, submitted that the above ground taken by the court below is not justified and it runs counter to the entries in the order sheet.  He invited my attention towards the order dated 6th of  August, 2003.  It appears that on that date an application for adjournment was filed by the applicant on the ground that he is not keeping well. None appeared to press the said adjournment application in spite of repeated calls.  The court was left with no option but to reject the application filed by the applicant.  It is true that in order it is mentioned that there is no supporting medical certificate along with the application. However, I do not find any error in the order of the court below on this score and the argument of the learned counsel for the applicant cannot be accepted. When the adjournment application was rejected on 6th of   August, 2003 it cannot be said that there was any sufficient cause for non appearance of the applicant on that date. The next ground taken by the court below is that the medical certificate filed by the applicant in support of his application is unbelievable. A copy of the medical certificate has been annexed as Annexure-4 to the affidavit. The said medical certificate reads as follows:-

"Certified that Moh. Nadeem S/o Haneef R/o Nanuta is under my treatment due to fever of Acute Bronchitis. Bed rest for 7 days."

The said certificate is dated 28th of August, 2003.  On a perusal of the said medical certificate the court below has rightly drawn a conclusion that it does not certify that the applicant was unwell on 20th of August, 2003.

Apart from the above, the court below has taken note of the fact that  applicant is in habit of getting the case adjourned for reason or the other  and the suit was got adjourned on thirteen occasions earlier. Shri Manish Goyal, the learned counsel for the applicant, submitted that this is not a good ground for rejection of the application for setting aside the exparte decree and reliance has been placed by him on a judgment of the Apex Court in the case of  G.P.Srivastava   Vs.  R.K. Raizada and others (2000) 3 S.C.C. 54.  Particular reliance has been placed by him on paragraph nos. 7 and 8 of the judgment.  After careful consideration of the argument of the learned counsel for the applicant, I am of the view that it has no application to the facts and circumstances of the present case.  There is no equity in favour of the applicant who has sought adjournment after adjournment. It is true that in such cases a liberal attitude should be adopted by the courts,  but it is not of universal application. When indulgence given by a court is misunderstood by a litigant, he should be dealt with firmly. The applicant is guilty of adopting delaying tactics, there is no equity in his favour. In view of the above, I do not find any merit in the revision. The revision is dismissed summarily.

In the end,  Shri  Manish Goyal, learned counsel for the applicant, submitted that his client is prepared to furnish undertaking that he will vacate the premises within a period of three months from today. The applicant is permitted to remain in the accommodation in question till 30th June, 2006 provided he deposits the entire decretal amount, rent and damages within a period of 15 days from today and also furnishes an undertaking before the Executing Court that he will vacate the premises within a period of three months from today and shall hand over the possession to the applicant-plaintiff.  In case of failure of any conditions stipulated above, it will be open to the decree-holder to put his decree in execution before the executing court. Amount, if any, already deposited by the applicant shall be given adjustment.

With aforesaid observations, the revision is dismissed.   No order as to costs.

Dt.29.3.2006

LBY


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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