Shiv Kumar vs Darshan Kumar

Shiv Kumar ...Appellant

Versus

Darshan Kumar ...

Respondent

ORDER

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

3 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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