1979 PLP 429 (CLC)

(i) That the learned lower appellate Court in its order dated 10th May, 1978 did not notice an apparent error of misreading by the learned lower Court of the application submitted by the peti tioner on 31st March, 1976. According to the learned counsel while it is mentioned in the application that the petitioner had no notice of the imminent eviction through force and that he needed time to file an appeal learned lower Court thought that the petitioner sought time to vacate the premises ; (ii) That even if it be assumed that the learned lower appellate Court did notice the error committed by the learned lower Court, the learned appellant Court failed to correct the error; (iii) That on account of the failure of the learned lower appellate Court to correct an obvious error committed by the lower Court it was essential for the learned appellate Court to correct the error at least on review application submitted by the petitioner ; and (iv) That the learned lower Court admitted in the order dated 13th September, 1976 that till then the first application was pending, despite that, even if the permission to file a fresh application was refused, it was incumbent upon the learned lower Court to decide the first application. (The above part of the order has been dictated in presence of the learned counsel).

3. Learned counsel has placed on record copies of applications submitted on 31st March, 1976 and 16th July, 1976.In the first mentioned application it is mentioned that no notice for handing over the physical possession was served on the petitioner and that on account of this he has been "taken by surprise" when the other party reached the spot with the bailiff armed with warrant of ejectment. It was in this connection that the petitioner prayed that he be given sufficient time to prefer appeal tit the High Court, warrant be recalled and status quo be maintained. The learned lower Court interpreted this application in the narrative part of the order dated 13th September 1976 as conveying the desire of the petitioner to seek time so that he may make arrangements for handing over the possession. Undoubtedly the petitioner through the said appli cation wanted to gain more time through Court. Thus far there is n0 misreading or misinterpretation: Wish regard to the remaining part learned Judge instead of saying that the time was needed by the petitioner for filing appeal in the High Court, on account of mistake, thought that the petitioner wanted time to vacate the premises. It appears that this mistake occurred on account of the fact that prayer part of the application id which the reference to an appeal in the High Court is made occurs on the reverse of the page while the main contents of the application are on the front page. But it goes without saying that this misreading is inconsequential because in fact the petitioner had gained considerable time after the filing of the said application for moving the High Court. How, ever, nothing has been said in this behalf whether in fact the High Court was moved. Instead, second application was moved in the same Court after about 4 months with a prayer to seek permission to file yet another (third) application in the same Court. This is not all. The learned trial Judge did not dismiss the first mentioned application on the basis of what has been described above as misreading. He gave two reasons for dismissing this and the subsequent application filed in July, 1976 : (i) that the petitioner had already spent more than enough time in vacating the premises and that there was no justification for delaying the matter further by permitting the petitioner to file yet another application ; and (ii) that in the subsequent application filed in July, 1976 nothing ha' teen mentioned as to what were the then intended pleas to be taken by way of amendment in case the permission for filing an additional objection petition was granted.

4. The learned lower appellate Court noted the afore-discussed so called misreading by the learned lower Court regarding the purport of the filing of the first application and also in a way made the necessary correction in the observation that "no prayer for the vacation of property was made. In the previous petition only this much was stated that no notice had been served on him". However, despite this so-called mis reading and correction by the learned lower appellate Court on that point, the reasons for affirming the order dated 13th September, 1976 are specifically stated in the impugned order. They were that the first ` application was moved on 31st March, 1976. The second petition was filed on 16th July, 1976. By means of the subsequent petition, the appel lant prayed for permission to withdraw the previous application and to file a fresh petition. It is not stated in this petition as to what objections were sought to be raised. Neither nature nor the details of the objections have been incorporated in this petition. Learned trial Court was, there fore, right in rejecting the applications. The petition was rightly decided. Court could not presume possible objection to be raised in future". In view of what is stated above it cannot be said either that the learned lower appellate Court did not notice the so-called misreading by the learned lower Court or did not correct it. That being so, there was no justification for filing a review application. The conditions laid down in Order XLVII, C. P. C. were not at all satisfied in this case.

5. Although the learned counsel has not criticised the reason given by both the learned Courts for not according to the request of the petitioner, otherwise, after carefully examining the same I have found them unexceptionable. The conclusions that the petitioner was bent upon delaying the handing over of the possession through frivolous excuses and objections could be safely reached in this case. It would not be out of place to mention here that when all this was happening on the restoration side, the petitioner filed two suits one, after the other, in connection with the same subject-matter. He was also successful in obtaining a partial stay order in one of the suits which the learned counsel states was in connection with the disposal of the property by the respondent.

6. With regard to the last cu:,~.,4:uuon of the learned counsel I agree that when the learned lower Court passed the,- order on 13th September, 1976 the first application filed on 31st March, 1976 was still pending and in my view the same also needed formal disposal but it cannot be said that order dated 13th September, 1976 did not dispose of both the applications. The learned Judge specifically mentioned that both the petitions were rejected. Regarding the subsidiary argument by the learned counsel that white the petitioner moved the first application under section 47 of the Code of Civil Procedure the learned Judges thought that it was under Order XLVII; it may be observed that in this connection also an attempt has been made to take advantage of a clerical mistake. Obviously it was on account of an innocent mistake that the word 'Order' instead of 'section' was written in the order dated 13th September, 1976.

7. With regard to the merits of the first application submitted in March, 1976, suffice it to observe that it was filed only to gain time for moving the High Court. Its purpose had been served by passage of several months during which it cannot be said that the petitioner has had no time to file an appeal in the High Court. Nothing else was stated in the said petition as a ground against the then impending physical dis possession. Learned counsel agree that the mention of notice in the said application was only in connection with the physical dispossession and not with regard to the proceedings in Court regarding restoration. Thus, there was nothing more in the said application which required decision on merits. Thus, the last contention of the learned counsel with regard to the disposal of the application dated 31st March, 1976 on merits also is without any force.

8. In delaying the restoration of possession as ordered by the Court in 1975 the conduct of the petitioner has been far from bona fide. He has been moving frivolous and incompetent proceedings (for example the appeal which admittedly was dismissed as incompetent) in order to gain an undue advantage. This petition has no merit and is accordingly dismissed in limine. M, Y, M. Petition dismissed.