NON REPORTABLE  

IN THE SUPREME COURT OF INDIA         CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NOS.7259-7260  OF 2008 (Arising out of SLP (C) Nos. 1388-1389 of 2008)

Shiv Kumar       …Appellant

Versus

Darshan Kumar                               …

Respondent

O R D E R

TARUN CHATTERJEE, J.

1. Delay of 166 days in filing these appeals is condoned

as we find that the statements made in the application for

condonation  of  delay  constitute  sufficient  cause  for

condoning the delay in filing the same.    

2. Leave granted.

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3. These  appeals  are  directed  against  a  judgment  and

order dated 8th of January, 2007 passed by the High Court

of  Delhi  at  New Delhi  in Civil  Misc.  Nos.142-143 of  2007

which  arose  out  of  Civil  Misc.  Main  No.  429  of  2005,

whereby  the  High  Court  had  rejected  the  application  for

restoration  filed  by  the  landlord/appellant  and  thereby

denying to restore the Civil Misc. Main No. 429 of 2005.   

4. The appellant, being the landlord of Shop No. WZ-272,

Jail Road, Nangal Raya, New Delhi – 46 (hereinafter referred

to as “the disputed property”) filed an eviction petition before

the Rent Controller, New Delhi, which was decided in favour

of the appellant and the Rent Controller, by the said order,

passed an order of eviction against the respondent.   

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5. Feeling  aggrieved,  the  respondent  approached  the

Additional Rent Control Tribunal, New Delhi and by an order

dated 20th of September, 2004, the Additional Rent Control

Tribunal had set aside the order of the Rent Controller and

rejected the eviction petition filed by the appellant.  Against

this  order  of  the  Additional  Rent  Control  Tribunal,  the

appellant had approached the High Court of Delhi by way of

a Civil  Misc.  Main Petition No. 429 of 2005 and the High

Court entertained the said petition and issued notice to the

respondent.  The aforesaid petition, however, was dismissed

in default on 4th of May, 2006.  Accordingly, an application

for restoration was filed by the appellant for the purpose of

recalling the aforesaid order of dismissal for default.  In the

application for restoration, it was alleged that the appellant

had fallen seriously ill and was admitted to Sir Ganga Ram

Hospital,  whereby  he  was advised  by the  Doctors  to take

complete bed rest. By the impugned order, the application

for  restoration  was  rejected  and  feeling  aggrieved,  the

appellant has come up before this Court by way of Special

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Leave  Petitions,  which  on  grant  of  leave,  were  heard  in

presence of the learned counsel for the parties.   

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6. Having heard the learned counsel for the parties and

after  going  through the  materials  on record including  the

statements made in the application for restoration, we are

satisfied  that  the  application  for  restoration  should  be

allowed subject to payment of Rs.10,000/- to the respondent

in the High Court as costs. Accordingly, the impugned order

is set aside and the original Civil  Misc. Petition No.429 of

2005 is  restored  to its  original  file  subject  to payment  or

deposit  of  Rs.10,000/-  as  costs  to  the  respondent  in  the

High  Court  within a  period  of  one  month from this  date.

However, it was brought to our notice by the learned counsel

for the tenant/respondent that subsequent to the rejection

of  the  application  for  restoration,  two  other  petitions  for

restoration were also rejected by the High Court.  Therefore,

the learned counsel for the respondent contended that the

question of restoration of the Civil Misc. No. 429 of 2005 at

this  stage  cannot  arise  as  the  appellant  had  failed  to

challenge the subsequent two orders as noted hereinabove.   

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7. Since  the  appellant  has  already  challenged  the  first

order of rejection of the restoration application, which is now

before us and in the event this application for restoration is

allowed and the Civil Misc. No. 429 of 2005 is restored to its

original  file,  it  is  needless  to  say  that  the  subsequent

restoration  applications,  which  were  rejected,  are  also

deemed to have been allowed.     

8. Accordingly, the impugned order is set aside and the

original Civil Misc. No. 429 of 2005 is restored to its original

file.  The High Court is requested to dispose of the case at an

early  date  preferably  within two months  from the  date  of

supply of a copy of this order to it.  However, we make it

clear that in the event, the appellant fails to deposit or pay

the aforesaid amount of Rs.10,000/- to the respondent as

costs in the High Court within one month from this date, the

application  for  restoration  shall  stand  rejected  and  these

appeals  shall  stand  dismissed  and the  order  of  the  High

Court shall stand affirmed.   

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9. Accordingly, the impugned order is set aside.  The

appeals  are  allowed  to the  extent  indicated  above.

There will be no order of costs.               

                                …..………..……..……J.          [TARUN CHATTERJEE]

New Delhi;                                .….….…….…… ………J. December 12, 2008.           [V.S. SIRPURKAR]

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