Kamla Vs. Gaurav
Kumar Gupta & Ors.  INSC 839 (28 April 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2875 OF 2009 (Arising out
of SLP(C) No. 15728 of 2007) Kamla ...Appellant VERSUS Gaurav Kumar Gupta &
appeal arises out of a Judgment and decree dated 7th of August, 2007 passed by
a learned Judge of the High Court of Judicature for Rajasthan at Jaipur Bench,
Jaipur in SB Civil Second Appeal No. 229 of 2007 affirming the Judgment and
decree passed by Addl. Civil Judge (Sr. Div.) and Addl. Chief Judicial
Magistrate, Jaipur and Addl.
have heard the learned counsel for the parties and examined the impugned
Judgment and other materials on record. On a perusal of the impugned Judgment
of the High Court, it appears to us that the Second Appeal was dismissed by the
High Court practically on the ground that 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.
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."
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.
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 be deposited or paid by the appellant within three
months from the date of receiving a copy of this order.
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.
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 decide
the second appeal on merits in the manner indicated above.
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
appeal is thus allowed to the extent indicated above. There will be no order as