Kamla vs Gaurav Kumar Gupta & Ors
- SCC(2009) 13 SCC 253
Ratio decidendi
The rule this decision rests on
When a High Court Second Appeal in a landlord-tenant case is dismissed solely on the ground that the appellant has failed to comply with an interim order directing deposit of arrears of rent, rather than on the merits of concurrent findings of fact, the Supreme Court may set aside the dismissal and remit the case for decision on merits, provided the appellant demonstrates willingness to comply with the deposit conditions imposed at the corrected rate of rent. Where concurrent findings of fact have been recorded by the trial court and appellate court in a Second Appeal, and the High Court acknowledges that such findings cannot be disturbed in Second Appeal, but dismisses the appeal on non-compliance with an interim order regarding rent deposit, the proper course is to permit the appellant to remedy the non-compliance and have the substantive appeal decided on its merits rather than on a procedural ground.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
the appellants had failed to pay off all the arrears of rent, as
directed to be deposited by the interim order of the High
Court dated 17th of April, 2007, although a finding was
made by the High Court that in Second Appeal, the
concurrent findings of fact on the ground of bonafide
necessity, nuisance, default in making the payment of rent
and material alteration could not be disturbed.
4. While issuing notice, this Court, by an order dated 10th
of September, 2007, granted interim order in the following
manner :-
"Issue notice.
In the meantime, without prejudice to the rights and contentions of the parties, there will be stay of dispossession from the premises in question, on the conditions that the petitioner shall go on depositing the rent at the rate of Rs. 600/- p.m. within 15th of each succeeding month, the first of such deposit shall be paid or deposited on or before 15th September, 2007. The petitioner shall also deposit all arrears of rent, if not already paid, within two months from this date. In default of any of the above conditions, the interim order shall stand automatically vacated."
2 5. The learned counsel appearing for the appellant
submitted on instructions that in compliance with the
aforesaid interim order of this Court dated 10th of
September, 2007, the rent at the rate of Rs. 600/- per
month and also the arrears of rent at the said rate have
already been deposited by the appellant. This fact could not
be disputed by the learned counsel for the respondents.
After hearing the learned counsel for the parties, we feel it
appropriate that in view of the findings of the Appellate
Court as well as of the trial Court, the rate of rent ought to
have been directed to be deposited at Rs. 1600/- per month
and not Rs. 600/- per month.
6. Therefore, we modify the interim order by directing
that the appellant shall go on depositing rent at the rate of
Rs. 1600/- per month till the disposal of the Second Appeal
and in view of the aforesaid, the arrears of rent, as noted
herein earlier in our interim order dated 10th of September,
2007, shall be calculated not at the rate of Rs. 600/- per
month but at the rate of Rs. 1600/- per month, which shall
3 be deposited or paid by the appellant within three months
from the date of receiving a copy of this order.
7. Since the appeal was practically decided on the
aforesaid ground of non-compliance of the interim order of
the High Court, we feel it appropriate to direct that the
appeal should be decided on merits, provided the appellant
deposits arrears of rent at the rate of Rs. 1600 per month
instead of Rs. 600 per month as indicated above and also
shall go on depositing at the rate of Rs. 1600/- per month
till the disposal of the Second Appeal.
8. Accordingly, we set aside the Judgment and decree of
the High Court and request the High Court to decide the
appeal after formulating substantial questions of law in
compliance with Section 100 of the Code of Civil Procedure
and thereafter, decide such questions of law after giving
hearing to the parties and after passing a reasoned
Judgment within a period of six months from the date of
compliance of the order, as indicated hereinabove and in
case, the appellant fails to comply with the aforesaid
direction, this appeal shall stand dismissed automatically
but if the direction is complied with, the High Court shall
4 decide the second appeal on merits in the manner indicated
above.
9. For the reasons aforesaid, the impugned Judgment of
the High Court is set aside subject to directions made
hereinabove and the appeal is remitted back to the High
Court for decision in the light of the observations and
directions made hereinabove.
10. The appeal is thus allowed to the extent indicated
above. There will be no order as to costs.
......................J. [Tarun Chatterjee]
New Delhi; ...................... J. April 28, 2009. [V.S. Sirpurkar]
5
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