Ms. Harleen vs Swaran Attri and another

G.S. Sandhawalia, J.—The present revision petition is directed against the orders dated 16.01.2012 passed by the Appellate Authority, SAS Nagar, Mohali whereby the Appellate Authority has declined the stay application of the petitioner-tenant in the pending appeal. Respondent No. 1-landlord filed petition on 29.08.2008 u/s 13(1)(2) Sub-Section 1 & 2 of the East Punjab Urban Rent Restriction Act, 1949 for ejectment of Ravinder Kumar Arora, arrayed as respondent No. 2 herein from the 1st floor of the premises in question bearing No. 1116, Phase-5, SAS Nagar, Mohali. In the petition, the grounds of ejectment was that the tenant had not paid the arrears of rent of Rs. 5,200/- per month since September, 2006 till its payment and electricity and water bills since February, 2008 and had sub-let the premises in question and since the lease deed had expired on 15.04.2008, therefore, he was in illegal and unauthorized possession of the premises. The tenant-Ravinder Kumar Arora did not appear and was proceeded against ex parte on 24.01.2009 and during the course of evidence, appeared on 23.05.2009 and filed an application for setting aside the ex parte order. The ex parte order was set aside on the statement of the respondent-landlord on 23.05.2009 and the tenant also made a statement on 12.08.2009 that he had handed-over the possession to the present petitioner, Ms.Harleen and accordingly, the landlord filed an application for impleading Ms.Harleen, the present petitioner which was allowed on 24.10.2009 and notice was issued to the said sub-tenant. The sub-tenant appeared on 05.02.2010 and took time to file reply to the ejectment petition but the same was not filed despite imposition of costs and ultimately, on 12.04.2010, she was proceeded against ex parte. The ex parte evidence of the landlord was closed on 29.07.2010 and then an application was filed by the sub-tenant, respondent No. 2 to set aside the ex parte order which was dismissed on 23.12.2010 by the Rent Controller, SAS Nagar, Mohali on the ground that it was barred by limitation and there was no application for condonation of delay. The said order was challenged before this Court in CR No. 990 of 2011 and eventually the revision petition was dismissed as withdrawn on 16.03.2011. Thereafter, an application was filed in the said case for approaching this Court by filing a fresh revision petition on the same cause of action. The said application was dismissed on 01.04.2011 by holding that it has no merit. Thereafter, a SLP was filed before Hon''ble Supreme Court which was dismissed on 11.05.2011 and a review application was also filed on 10.12.2011.

The Rent Controller, SAS Nagar, Mohali came to the conclusion that the premises have been sub-let in violation of the lease deed and respondent No. 2 was in possession as a sub-lettee and was bound to vacate the premises. The Rent Controller, SAS Nagar, Mohali noticed that the main tenant had supported the claim of the landlord against the sub-tenant who opposed the same through his counsel. Accordingly, the petition was allowed and ejectment was ordered of both the main tenant and the sub-tenant. An appeal was filed along with an application for stay before the Appellate Authority, SAS Nagar, Mohali by the sub-tenant on 27.12.2011 in which notice was issued in the main appeal as well as in application for stay to the landlord and the operation of the impugned order was stayed till then. The application for stay has now been declined vide order dated 16.01.2012 and the case was posted for 01.03.2012 for arguments. Resultantly, the present revision petition has been filed.

A mention was made on 19.03.2012 that there was an urgency in the case and the same was listed on the request of the mentioning on the same day. Counsel for the petitioner has contended that since the main appeal had been fixed for 01.03.2012, therefore, the Appellate Authority, SAS Nagar, Mohali was not correct in declining the stay and the appeal would be rendered infructuous in view of the fact that there was no interim protection. The said submission of the counsel has been examined. The submission made is with merit on the general principles that the appellant should be given an opportunity to present his case before the First Appellate Court. But the discretion of the Court to grant stay is not taken away by mere fact that there is a statutory remedy provided as the Court has to examine the conduct of the parties and arrive at a balance between them. It has been noticed in the proceedings which have taken place that the landlord is striving to get possession of the premises for which no rent has been paid since 2006 by the original tenant who has further sub-let the premises. The petition was filed way back on 29.08.2008. Initially, the original tenant was proceeded against ex parte on 24.01.2009, and thereafter, put in appearance on 25.05.2009. The counsel for the landlord had allowed him to join the proceedings and his ex parte proceedings were set aside but subsequently, he also made statement that the possession is no longer with him and the possession is with Ms.Harleen. Accordingly, the landlord was forced to contest the matter with the present petitioner by filing an application under Order 1 Rule 10 CPC. Despite service, the present petitioner never appeared and thus, was proceeded against ex parte on 01.04.2010. When the evidence of the landlord was complete and he closed the evidence on 29.07.2010, then conveniently, an application for setting aside the ex parte order was filed which was dismissed on the ground that the counsel for the sub-tenant had not informed her that her presence was required, and therefore, the application was being filed on 27.08.2010 when no information was given from the said Advocate. The said application was dismissed on 23.12.2010 by the Rent Controller, SAS Nagar, Mohali on the ground of limitation and as noticed above and has been up-held in CR No. 990 of 2011 and thereafter, further attempt to drag the litigation was made by filing application bearing CM No. 7877-CII of 2011 for recall of the order which was also nipped in the bud, and thereafter, the matter was carried to the Hon''ble Supreme Court. All these facts only go on to show that the petitioner is in possession of the premises in question from the date of filing the ejectment application, i.e. 29.08.2008 since the initial ground was also of sub-letting.

Thus, the bona fides of the petitioner are highly suspicious who is enjoying the premises without any payment for use and occupation and a period of almost 4 years has expired. The Hon''ble Apex Court in Indian Council for Enviro-Legal Action Vs. Union of India (UOI) and Others, has held that the delayed action of the Courts cannot be permitted to be turned into a fruitful industry for unscrupulous litigants taking benefit of their own wrong. Following has been held in para no. 223 of the said judgment:-

The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view.

It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court.

When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to the conferment of additional right upon the litigating party.

Unscrupulouslitigants be prevented from taking undue advantage by invoking jurisdiction of the court.

A person is wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system.

No litigant can derive benefit from the mere pendency of a case in a court of law.

A party cannot be allowed to take any benefit of his own wrongs.

Litigationshould not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court.

The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts.

In the present case, the petitioner is in possession of the premises without any authority and has not shown any intention of her bona fides by filing any application before the authorities at any stage or before this Court that she is willing to pay rent/mesne profits for the period she has been in occupation. The petitioner was well aware that proceedings against her were going on and she had to put in appearance before the Court but she voluntarily absented and did not put in appearance and waited for the evidence to conclude and then filed an application for setting aside the ex parte order which was rightly dismissed and subsequently up-held by the Appellate Authority, SAS Nagar, Mohali and thereafter, till the Apex Court. Keeping in view all these background, no fault can be found with the order of the Appellate Authority, SAS Nagar, Mohali declining the grant of interim relief during the pendency of the appeal. Admittedly, the petitioner has not filed any written statement in the ejectment application which has been decided against her. There is no prima facie case which can be made out which can persuade the Court to grant her interim relief. The essential ingredients for granting interim relief have not been made out as the petitioner has not been able to show what is her status in the premises in question and the balance of convenience does not lie with the petitioner due to the reasons recorded above. Accordingly, the present revision petition is dismissed and the order of the Appellate Authority, SAS Nagar, Mohali is up-held.