Final Order 8

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF MR. SANJAY GARG-I
PRINCIPAL DISTRICT & SESSIONS JUDGE,
CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
Misc. DJ No.8/2024
CNR No. DLCT01-000031-2024
Meena Devi
through LR Surender Singh
….Applicant/Appellant
Versus
Estate officer & Anr.
….Respondents
ORDER:
1. This is the second application under Section 151 CPC filed
on behalf of the applicant/appellant for restoration/revival of
appeal which was got dismissed in default on 05.04.2021.
2. Brief facts of the case are that the present appeal has been
filed against the impugned order dated 08.05.2019 passed by the
Estate officer directing the appellant Ms. Meena Devi and all the
persons who may be in occupation of the premises viz- Quarter
No.181-B, Aram Bagh, New Delhi or any part thereof to vacate
the said premises and in the event of refusal or failure to comply
with the order, the appellant is liable to be evicted from the said
premises.
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3. It is submitted that during the pendency of the said appeal,
lockdown was announced due to COVID-19. It is submitted that
the counsel for the appellant tried to contact the appellant,
however, the appellant could not be contacted. On 27.04.2020 the
appellant had passed away. However, this fact was not in the
knowledge of the counsel for the appellant and on 13.08.2020,
Ld. Counsel for the appellant had appeared before the court and
sought time to file the rejoinder under the impression that the
appellant was a cancer patient and was hospitalized since
February, 2020. Thereafter, on 05.04.2021, due to the absence of
counsel as well as due to non filing of the rejoinder, the said
appeal was dismissed in default.
4. Against the said order dated 05.04.2021, the husband of the
appellant moved an application for restoration/revival of the said
appeal vide Misc.DJ No.369/2021, however, the said application
was dismissed as withdrawn vide order dated 02.06.2022. Hence,
the present second application was filed.
5. I have heard Sh. Ashwani Tyagi, Ld. Counsel for the
applicant and Sh. J.K. Tripathi, Ld. Counsel for the respondent.
Ld. Counsel for the respondent submitted that he does not want to
file reply and straightaway argued the application.
6. Ld. Counsel for the applicant submitted that the applicant
has no knowledge about the dates of hearing of the application for
restoration of appeal and the earlier counsel engaged by the
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applicant always called him to the Court but never allowed him to
appear before the Court. It is submitted that even in the appeal,
the earlier counsel for the applicant had neither filed the rejoinder
to the written statement nor appeared before the Court for several
dates of hearing due to which the appeal was dismissed in default.
It is submitted that whenever applicant inquired about the dates of
hearing from his earlier counsel, his counsel has always assured
him that the matter is pending. So, the Ld. Counsel for the
applicant submits that due to the negligence on the part of the
earlier counsel for the applicant, the applicant should not suffer
and prays that his application for restoration/revival of the appeal
may be allowed.
7. On the other hand, Ld. Counsel for the respondent has
opposed the present application on the ground that this is the
second application for restoration/revival of the appeal which is
not maintainable as the first application was dismissed as
withdrawn without giving any liberty to file afresh. The other
ground taken by the Ld. Counsel for the respondent is that no
complaint against the earlier counsel engaged by the applicant has
been filed before the Bar Council.
8. As already discussed, vide impugned order, the Estate
officer had directed Ms. Meena Devi, wife of this applicant to
vacate the premises. Ms. Meena Devi having died on 27.04.2020,
the point to be considered is, if right to sue survives or not.
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9. The Ld. Counsel for the applicant has stated that
subsequent to the eviction order, the Estate Officer vide order
dated 02.08.2021 had demanded outstanding licence fee/damages
for a sum of Rs.46,34,321/- as on 29.07.2021 from family of Late
Smt. Meena Devi, who was allotted the government
accommodation i.e. Qtr.No.B, Block 181, Aram Bagh, New
Delhi.
10. This appeal is only impugning order dated 08.05.2019 vide
which Ms. Meena Devi was directed to vacate the premises
within 15 days. The present applicant being husband and legal
heir of Late Ms. Meena Devi should have challenged the demand
raised by the Ministry of Housing & urban Affairs, Directorate of
Estates dated 02.08.2021 amounting to Rs.46,34,321/- on account
of outstanding licence fee/damages, but same has not been done
by him till date.
11. Regarding dismissal of the appeal vide order dated
05.04.2021, since it was pandemic period, the application seeking
restoration of the appeal was on sound footing. But before the
said application could have been decided by the Court, the present
applicant had withdrawn the said application. Accordingly, the
application was dismissed as withdrawn vide order dated
02.06.2022.
12. The present application seeking restoration of the appeal
was moved on 03.01.2024. There is an inordinate delay in moving
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this application. The law protects the vigilant and not the
indolent. The various reasons given by the applicant in moving
this application are found unsatisfactory.
13. In view of aforesaid reasons, I found no substance in the
present application and the same is hereby dismissed. File be
consigned to record room.
Announced in the open Court (SANJAY GARG-I)
on 1st July, 2024 Principal District & Sessions Judge
Central District,
Tis Hazari Courts, Delhi(D)
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