Dismissed

Ramswarup Sain S/O Shri Chhotu Lal Sain v. Satyanarayan Sain S/O Late Chotulal Sain

Rajasthan HC6 Mar 2024CFA/295/2019

Case brief

AI extract

What is this about?

The court dismissed the first appeal filed by appellants-defendants in a property possession suit. The court held that since the appellants failed to deposit mesne profit as directed by stay order and were already evicted, continuing the appeal was an abuse of process.

What did the court decide?

The instant appeal was dismissed; no relief was granted to the appellants.

Ramswarup Sain S/O Shri Chhotu Lal Sain Vs Satyanarayan… — Property and Title | Rajasthan HC (2024)

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[2024:RJ-JP:12052]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil First Appeal No. 295/2019

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Ramswarup Sain S/o Shri Chhotu Lal Sain, Aged About 59 Years

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Pawan Sain S/o Ramswarup Sain, Aged About 36 Years, Both R/o 39/147 Sarrafa Pole Khajana Gali, Ghee Mandi, Naya Bazaar, Ajmer.

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Shri Vidyasagar Sain S/o Chotu Lal Sain, Aged About 55 Years, At Present Resident Of Marfat, Shree Jeevanram Verma, Retired Compounder, Near Sain Temple, Ladnu, District Nagaur, Working At English Lecturer, Rajkiya Uchh Madhyamik Vidyalaya, Jaswantgarh District Nagaur.

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----Defendants-Appellants

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Versus

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Satyanarayan Sain S/o Late Chotulal Sain, Aged About 66 Years, Resident Of 39/148, Khajana Gali, Ghee Mandi, Naya Bazar, Ajmer.

¶10

----Respondent

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For Appellant(s)	: Mr.	Fahad Hasan
For Respondent(s)	: Mr.	Veyankatesh Garg, through VC

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Judgment / Order

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06/03/2024

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On 12.01.2024, learned counsel for respondent has apprise the Court that the judgment and decree dated 17.01.2019 has been satisfied, therefore, nothing survives in this matter.

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On earlier occasion, learned counsel for appellants sought time to take instructions from his litigant. Learned counsel for appellants submits that, the appellants have failed to deposit mesne profit of ₹5,000/- per month, therefore, the judgment and decree was executed against the appellants (defendants) but the

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appellants can very well raised the grounds both on facts and law before this Hon’ble Court and if appellants succeeds in convincing the same to this Court then the judgment and decree dated 17.01.2019 can be reversed and the appellants may pray for restitution of possession to the appellants.

¶21

Learned counsel for respondent appearing through VC submitted that the appellants have failed to deposit a single penny in compliance of the order. He also submits that no ground exists in favour of appellants to continue the appeal, therefore, this appeal be disposed of.

¶22

Having considered the submissions of learned counsels for the parties, we have noticed that a judgment and decree was passed on 17.01.2019 in Civil Suit No.73/2009 by learned Additional District Judge No.4, Ajmer against the appellantsdefendants. The judgment and decree is reproduced as under:-

¶23

”ifj.kker% oknh dk okn fo:) izfroknhx.k e; [kpkZ fMdzh fd;k tkdj okn Ik= dh pj.k la[;k 1 esa of.kZr lEifr ,oa mlij fufeZr nqdkuks dk oknh dks ,dy ekfyd ,oa vf/kdkjh ?kksf’kr fd;k tkrk gSA

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mDr lEifr ij izfroknhx.k }kjk dCtk fd;k x;k gS]mldk dCtk nks ekg esa izfroknhx.k }kjk fu;ekuqlkj oknh dks lqiqnZ fd;k tkos vU;Fkk oknh fu;ekuqlkj U;k;ky; }kjk izfroknhx.k ds [kpsZ ij dCtk izkIr djus dk vf/kdkjh gksxkA

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oknh izfroknhx.k ls mDr ifjlj dh {kfriwfrZ jkf”k izR;sd nqdku dh 5]000@& :i;s izfrekg dh nj ls izR;sd nqdku dk nkok nk;jh ls dCtk izkIr gksus rd izkIr djus dk vf/kdkjh gksxkA

¶26

izfroknhx.k dks tfj;s LFkkbZ fu’ks/kkKk bl vk”k; ls ikcan fd;k tkrk gS fd os mDr oknxzLr lEifr dks fcuk oknh dh vuqefr ds fdlh vU; O;fDr dks jgu] cspku] ;k c[“kh”k vUrj.k ugha djsxsA

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rnuqlkj fMdzh ipkZ eqfrZc gksA”

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Aggrieved from aforesaid, the instant first appeal under Section 96 of CPC is filed by the appellants-defendants. On 22.05.2019 while considering the Stay Application No.1175/2019 this Court has directed that the deposit of ₹5,000/- per month as mesne profit including arrears in terms of judgment and decree dated 17.01.2019. Aggrieved from aforesaid, a SLP (Civil) Diary No.33695/2019 was preferred before Hon’ble Supreme Court and same was disposed of on 04.10.2019 with liberty to move before the High Court. In compliance of the order of Hon’ble Supreme Court Application No.2/2019 was filed by the appellants before this Court and a Coordinate Bench on 26.08.2022 has dismissed the application. Since then no amount of mesne profit was deposited by the appellants. A suit for eviction (recovery of possession) along with mesne profit of ₹5,000/- per month was filed by respondent-plaintiff against the defendants-appellants and same was decreed after opportunity of leading evidence to both the parties. The appellants have failed to deposit amount of arrears and as a result of which they were evicted from the suit property.

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We have considered the grounds of admission and also the statement of execution of decree. A perusal clearly indicate that the trial Court after considering the material on record has arrived at a conclusion in favour of plaintiff-respondent and further, the appellants have failed to observe the conditions as imposed by this Court at the time of passing of said stay order on eviction proceedings, therefore, the appellants are not entitled to continue this appeal. Having considered the fact that the appellants have

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already been evicted in pursuant to judgment and decree passed by the trial Court, therefore, the appeal is liable to be dismissed.

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The appellants (defendants) had not deposited mesne profit in terms of the decree to continue the instant appeal. Mere keeping instant appeal as pending for adjudication after admission, would also serve no purpose. Thus, continuance of instant appeal even for a single day is just abuse of process of law.

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In view of aforesaid, the instant appeal is hereby dismissed.

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Misc. application, if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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Arun/64

Ramswarup Sain S/O Shri Chhotu Lal Sain v. Satyanarayan Sain S/O Late Chotulal Sain

Case brief

What is this about?

What did the court decide?

Ramswarup Sain S/O Shri Chhotu Lal Sain v. Satyanarayan Sain S/O Late Chotulal Sain

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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