- (1.) The respondent-owner filed an application dated 22.3.1999 for declaration of vacancy of the disputed premises alleging that the petitioner was an unauthorized occupant who had forcibly occupied the premises when it was vacated by the erstwhile tenant. She also claimed release in her favour. The petitioner claimed that he was a tenant at Rs. 50/- per month. After hearing the parties, the rent controller declared vacancy vide order dated 4.11.1999 which is under challenge by the petitioner and he is continuing in possession on the basis of an interim order of this Court dated 18.11.1999. The counter-affidavit in this case was filed by the owner in October, 2000 but the rejoinder affidavit was filed in September, 2006. This matter was heard on 23.7.2008 and the following order was passed. This is tenant's writ petition, eviction has been stayed through interim order. Supreme Court in Carona Ltd. v. Parvathy Swaminathan and sons, 2008 AIR(SC) 187 (Para. 45) and R.K. Shukla v. Sudhrist Narain Anand, 2008 2 ARC 613 (Para. 17), has held that equitable relief under Article 136 of the Constitution of India cannot be granted to a tenant appellant, who has not paid rent/mesne profit particularly during the pendency of appeal. Same principle will apply to writ jurisdiction, which is also equitable relief. If the petitioner behaves in an unjust manner (by not paying the rent), then he is not entitled to equitable relief under Articles 226/227 of the Constitution of India even though impugned judgments may be erroneous in law. Accordingly/list peremptorily on 11.9.2008 On the next date, an affidavit must be filed by or on behalf of petitioner to show the position of payment/deposit of rent upto date along with documentary evidence, i.e., rent receipt, money order coupon or tender failing which writ petition would be dismissed on the ground of non-payment of rent alone.
(2.) However, no affidavit was filed showing payment of rent/damages. One more opportunity was given by the following order on 27.8.2008. List peremptorily again in the next cause list. If by the next date affidavit receiving payment of rent is not filed, writ petition would be treated to have been automatically dismissed. On the next date the case must be listed along with the file of the Writ Petition No. 18068 of 2004 decided on 8.2.2007.
(3.) However, even till date nothing has been brought on record to show that the rent was deposited and even the case was listed peremptorily the Counsel for the petitioner sent repeated illness slips on 21.1.2009, 29.1.2009 and 17.2.2009. Under the High Court Rules, if a case is ordered to be listed peremptorily, it cannot be adjourned on a mere illness slip but a proper application has to be filed for adjournment. But no such application is on record.;