REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1709 OF 2006

RAM KRISHNA SINGH & ORS.            APPELLANTS

VERSUS

THAKURJI SHIVJI                   RESPONDENT

O R D E R

Heard  Ms.  Tulika  Mukherjee,  counsel  for  the  

appellants and Ms. Swati Sinha, counsel appearing for  

the respondent.

This is a tenants’ appeal arising from a suit  

for  eviction  and  arrears  of  rent  under  the  Uttar  

Pradesh Urban Buildings (Regulation of Letting, Rent  

and Eviction) Act, 1972 (for short 'the Act').

The suit was filed in the year 1975 against the  

original  tenant  Kali  Prasad,  whose  heirs  and  legal  

representatives  are  now  the  appellants  before  this  

Court. It was decreed ex-parte on September 25, 1975.  

When the decree was put to execution, the tenant filed  

an application under Order IX, Rule 13, on October 7,  

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1978  for  setting  aside  the  ex-parte  decree.  This  

petition  was  dismissed  by  the  Judge,  Small  Causes  

Court, Gorakhpur. In course of the proceedings before  

the Small Causes Court, Kali Prasad had died and was  

substituted  by  his  heirs  and  legal  representatives  

(the  present  appellants).  They  took  the  matter  in  

revision.  The  Additional  District  Judge,  Gorakhpur,  

allowed the revision by order dated January 31, 1983  

holding that the summons in the suit were actually not  

served on Kali Prasad and hence, the ex-parte decree  

was  liable  to  be  set  aside.  Ten  days  later,  on  

February  10,  1983,  the  tenants  deposited  all  the  

arrears of rent in court. Over two and a half years  

later, on December 13, 1985, the record of the case  

was received back in the Small Causes Court and the  

proceedings in the suit were resumed before the Small  

Causes  Court  on  January  3,  1986.  At  that  stage,  a  

petition  was  filed  on  behalf  of  the  respondent-  

landlord  for  allowing  the  suit  and  directing  the  

eviction of the tenants on the ground that the arrears  

of  rent  had  not  been  paid  on  the  first  date  of  

hearing. The Small Causes Court did not accept the  

petition  and  proceeded  with  the  suit.  Finally,  on  

February 19, 1988 it decreed the suit for recovery of  

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arrears  of  rent  but  dismissed  it  in  regard  to  the  

relief  for  eviction  holding  that  the  tenants  were  

entitled to the protection under Section 20(4) of the  

Act.

In revision, preferred by the respondent, the  

Revisional Court held that the appellants-tenants were  

not entitled to the protection of Section 20(4) of the  

Act and were liable to be evicted for non-deposit of  

the arrears of rent on the first date of hearing. It,  

accordingly, allowed the revision and passed the order  

of eviction.

The appellants challenged the order passed by  

the Revisional Court in a writ petition filed before  

the  High  Court,  which  was  eventually  dismissed  and  

they then brought this matter to this Court.

Ms. Mukherjee, learned counsel contended that  

the High Court and the Revisional Court were seriously  

in error in taking the view that the arrears of rent  

ought to have been deposited at the time of the filing  

of the petition under Order IX, Rule 13 for recall of  

the decree.  She submitted that the summons of the  

suit  issued  by  the  Small  Causes  Court  were  not  

received  by  Kali  Prasad,  as  held  and  found  by  the  

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Revisional  Court,  while  setting  aside  the  ex-parte  

decree.  Therefore, the date mentioned in the summons  

for the appearance of the tenant and the first date of  

hearing of the case had no application to the facts of  

the case. She further submitted that in the facts of  

this case, the deposit of the arrears of rent within a  

few days of the setting aside of the ex-parte decree  

and  long before the proceedings in the suit resumed  

must  be  deemed  to  be  complete  compliance  with  the  

requirement of Section 20(4) of the Act. In support of  

the  submission,  she  relied  upon  decisions  of  this  

Court in (i) Siraj Ahmad Siddiqui v. Prem Nath Kapoor,  

(1993)  4  SCC  406 (paragraphs  13,  15  &  16);  (ii)  

Advaita Nand v. Judge, Small Causes Court, Meerut &  

Ors.,  (1995)  3  SCC  407 (paras  7,8  &  11);  (iii)  

Sudershan Devi & Anr. v. Sushila Devi & Anr., (1999) 8  

SCC 31 (paras 14, 21, 27 & 31) and (iv) Ashok Kumar &  

Ors. v. Rishi Ram & Ors., (2002) 5 SCC 641 (paras 6, 7  

& 8).

The submissions made by Ms. Mukherjee, cannot  

be said to be entirely without substance and may call  

for a consideration by this Court in an appropriate  

case. In the facts of this case, however, we are not  

inclined  to  exercise  our  jurisdiction  under  Article  

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136 of the Constitution in favour of the appellants.

It is noted above that the respondent’s suit  

was originally decreed ex-parte on September 25, 1975  

and the petition for setting aside the decree was made  

on October 7, 1978. The ex-parte decree was finally  

set aside on January 31, 1983.  We may discount the  

eight years, thus, wasted because there is the finding  

of the Revisional Court that the summons in the suit  

were not served on Kali Prasad, the defendant-tenant.  

But the conduct of the appellants in course of the  

later proceedings disentitles them from any relief.

It  is  noted  above  that  the  appellants  

challenged the order of their eviction passed by the  

Revisional Court in a writ petition (Civil Misc. Writ  

Petition No.8301 of 1991) filed before the Allahabad  

High Court. That writ petition was first dismissed for  

default on March 11, 2002. The dismissal of the writ  

petition revived the execution proceedings instituted  

on the basis of the order of the Revisional Court and  

the respondent-landlord got the possession of the suit  

premises  on  May  31,  2002.  Thereafter,  the  writ  

petition  was  restored  by  order  dated  September  5,  

2002. It was dismissed for a second time, once again  

for  default  on  September  1,  2003,  but  was  again  

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restored  by  order  dated  October  22,  2003.  It  was  

finally  dismissed  on  merits  by  the  impugned  order  

passed on July 13, 2004.  

The way the proceedings took place before this  

Court is not very different. The present appeal too  

was dismissed for non-prosecution by order dated April  

8, 2010 and it was later restored by order dated May  

14, 2010.   

It is, thus, obvious that the appellants have  

conducted the proceedings in this case with complete  

lack of seriousness and in a highly cavalier manner.

It is true that in this appeal an interim order  

was passed directing the respondent not to create any  

third party interests in the suit premises during the  

pendency of this appeal, but this order was passed on  

March 20, 2006. The respondent had got possession of  

the suit premises on May 31, 2002, that is to say  

about four years earlier. It is not known whether or  

not the suit premise was rented out in the meanwhile.  

If it was in fact let out on rent to a third party,  

any  order  passed  in  this  case  in  favour  of  the  

appellants-tenants  is  bound  to  create  further  

complications.   Even otherwise it would appear that  

the respondent is held to ransom for the past more  

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than six years for absolutely no fault on his part but  

simply  because  of  the  laches  on  the  part  of  the  

appellants.    

Ms.  Mukherjee  submitted  that  there  was  no  

laches or negligence on the part of the appellants and  

the writ petition before the High Court and the appeal  

before this Court were dismissed due to oversight on  

the part of the concerned lawyers. We are unable to  

accept this as sufficient justification for penalizing  

the respondent.  

In the facts of this case, as noted above, we  

are not inclined to pass any order in favour of the  

appellants.  The  appeal  is  dismissed  leaving  the  

question of law raised by Ms. Mukherjee open.

Before parting with the record of the case, we  

would like to record our appreciation for both Ms.  

Tulika Mukherjee and Ms. Swati Sinha, counsel for the  

appellants  and  respondent,  respectively,  for  the  

assistance rendered by them to the Court.

.......................J. (AFTAB ALAM)              

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.......................J. (CHANDRAMAULI KR. PRASAD)

New Delhi, 07 October, 2010.

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