Rekha Rani v. G.R. Kashyap

1. This petition under Article 227 of the Constitution of India is filed impugning the three orders as per the heading of the petition. These three orders are: orders dated 22.11.2011 and 10.4.2012 passed by the trial court, and the order dated 24.12.2011 passed by the first appellate court withdrawing the appeal filed against the order dated 22.11.2011 on the ground that review petition will be filed.

2. At the outset, I must state that one petition cannot be filed with respect to separate orders of separate courts, and which orders are not orders 2014:DHC:3448 in a sequence of challenge to one basic order. Also, the order of the first appellate court which is sought to be challenged in this petition is the order dated 24.12.2011 which simply allows the present petitioner/defendant to withdraw his appeal filed against the order dated 22.11.2011. Against a simplicitor order of consent withdrawal, and that too, for filing of a review petition which was filed and dismissed by a subsequent order of the trial court dated 10.4.2012 (and which order is also impugned in the present petition), no petition lies under Article 227 of the Constitution of India.

3. Since there are many orders, in order to avoid confusion I am setting out the same in seriatim hereto. (i) 1.3.2011: Order directing the petitioner/defendant to pay rent at Rs.1500/- per month from 1.7.2010 till the date of passing of the order on 1.3.2011 and thereafter continue to pay every month by month during the pendency of the suit. (ii) 22.11.2011: Order of striking of defence and decreeing the suit for possession for non-compliance of the order dated 01.3.2011. (iii) 24.12.2011: Order passed by the first appellate court in the appeal against the order dated 22.11.2011, and by this order dated 24.12.2011 the appeal of the petitioner herein was allowed to be withdrawn so that the petitioner/defendant can file a review application before the trial court against the order of the trial court dated 22.11.2011. (iv) 10.4.2012: Order dismissing the review application filed by the petitioner/ defendant whereby review was sought of the order dated 22.11.2011 striking of defence for non-compliance of the order for payment of arrears of rent and future rent.

4. (i) The admitted fact is that the order of payment of arrears of rent and future rent month by month dated 1.3.2011 has become final as no challenge was laid to the same. It is also an undisputed fact that this order dated 1.3.2011 was not complied with for subsequent hearings in the suit right till 22.11.2011 when because of non-compliance the defence of the petitioner/defendant was struck off. Another undisputed fact is that the petitioner/defendant never applied for the period from 1.3.2011 till 22.11.2011 when the defence was struck off and the suit for possession decreed, for seeking exemption for payment under the order dated 1.3.2011 on the ground alleged subsequently that the premises were not habitable.

(ii) Therefore, once the order dated 1.3.2011 is final, and no application was filed for exemption for payment till 22.11.2011, I fail to understand as to how the petitioner/defendant can subsequently by filing a review application claim that the order dated 1.3.2011 was not to be complied with because the tenanted premises were not habitable.

5. Besides the above stated facts, this petition is not only clearly barred by delay and laches and also by malafides of seeking to the proceedings before the trial court, inasmuch as, firstly the challenge is really to the order dated 1.3.2011 and which order was challenged (though wrongly in first appeal) and which first appeal was withdrawn not because the appeal was not maintainable but because a review application was sought to be filed before the trial court for review of the order dated 22.11.2011. Even assuming that there can be overlooking of the period between 22.11.2011 till the order was passed by the trial court on 10.4.2012 dismissing the review application of the petitioner/defendant, the present petition should have been filed in and around the period of limitation for challenging the order dated 10.4.2012 dismissing the review petition and the original order dated 22.11.2011 striking of the defence. The period of limitation for filing a case in the High Court is 90 days from an order of the court below, and therefore, in around 90 days or may be a few weeks more this petition under Article 227 of the Constitution of India should have been filed ie latest the petition should have been filed by August/September, 2012. This petition however is filed on 22.10.2013 i.e after about 1 ½ years of the order dated 10.4.2012 dismissing the review petition of the petitioner/defendant against the order dated 22.11.2011 striking of the defence. No doubt limitation period does not apply to a petition under Article 227 of the Constitution of India, however, period of limitation is taken by the courts as a good guide to decide the issue of delay and laches, inasmuch as, it cannot be contended that merely because there is no limitation period in filing a petition under Article 227 of the Constitution of India, the same can be filed at the leisure and pleasure of a litigant. Therefore, this petition is also barred by delay and laches.

6. A resume of the above facts shows that;

(i) the petitioner has filed a consolidated challenge to various/different orders, including an order of consent withdrawal before the first appellate court, and which petition is therefore not maintainable;

(ii) even if we take the petition as filed against the order dated 10.4.2012, with delay having been explained for setting aside the order dated 22.11.2011 till 10.4.2012, even then this petition is barred by delay and laches having been filed only on 22.10.2013;

(iii) the order dated 1.3.2011 directing payment of arrears of rent and future rent was never complied with and no application was filed for staying of the operation of the order or seeking exemption for payment under the order dated 01.3.2011 till the defence was struck off on 22.11.2011.

7. It is quite clear that the petitioner/defendant is taking all steps to somehow or the other cause delay in disposal of the suit for possession, rent and mesne profits which have been filed against him.

8. Counsel for the petitioner has sought to place reliance in support of the proposition that once the tenanted premises are not habitable, rent need not be paid, and which judgments are Surendra Nath Bibra Vs. Stephen Court Ltd. 1966(3) SCR 458 and Arian Afghan Airlines Co. Ltd. Vs. Cycle Equipments (P) Ltd. 14(1978) DLT 19, but, none of the judgments which are relied upon by the petitioner/defendant apply to the facts of the case because no doubt a tenant may claim suspension in payment of rent, however, in the present case, no claim was preferred for suspension of rent on the ground of premises being not habitable for various dates after the order dated 1.3.2011 was passed directing payment of arrears of rent and future rent at Rs.1500/- per month and right up till the defence was struck of and suit for possession was decreed on 22.11.2011. Also, once the order dated 01.3.2011 is final as it was not challenged, then thereafter, that order dated 01.3.2011 cannot be collaterally challenged allegedly because tenanted premises are uninhabitable. If the tenanted premises are uninhabitable, why is the petitioner then holding on to the same?

9. Powers under Article 227 of the Constitution of India are exercised not to frustrate justice but as an aid to justice. The facts of the present case show that petitioner/defendant/tenant is for somehow or the other wanting to continue to claim tenancy rights but does not want to pay the rent. Not only no rent is sought to be paid, but even the orders of the court which achieved finality till the defence was struck of and suit for possession decreed, were not complied with. The afterthought of seeking suspension of rent as claimed on behalf of the petitioner/defendant does not deserve any consideration from the courts.

10. In view of the above, there is no merit in the petition, and therefore the same is dismissed with costs of Rs.25,000/-. Costs shall be paid within a period of six weeks. JULY 23, 2014 VALMIKI J. MEHTA, J. ib