- (1.) This order is disposing of application under Sec. 151 CPC filed by the appellant for extension of time undertaken by him for furnishing written undertaking in compliance of order dt. 9.7.2012 passed in S.B. Civil Second Appeal No. 66/2012. Brief relevant facts for the disposal of this application are that the respondent-landlord filed suit for eviction against tenant-appellant from the suit premises before the trial Court in the form of Civil Suit No. 182/2003 and the same was decreed vide judgment and decree dt. 23.01.2006 and the Appeal No. 02/2006 filed by the appellant under Sec. 96 CPC was dismissed by the appellate. Court vide judgment and decree dt. 5.1.2012. The aforesaid Civil second appeal under Sec. 100 CPC was filed by the appellant in which the respondent appeared through his counsel and the appeal was dismissed vide order dt. 9.7.2012 as not pressed as the parties agreed to dispose of the same on the following terms and condition:-- 1. Defendant-appellant undertakes to hand over vacant and peaceful possession of the rented premises to the plaintiff-respondent on or before 31.12.2013. The plaintiff respondent shall not execute the impugned decree of eviction/dispossession till then. 2. Defendant-appellant undertakes to pay or deposit the arrears of rent/mesne profit due till now within a period of one month at the rate of Rs. 150/- per month and to further continue to pay or deposit the future mesne profit by 10th day of each succeeding month till date of actual delivery of possession at the above rate. 3. Plaintiff-respondent shall furnish details of his bank account to the appellant within a period of 15 days failing which it will be open for the appellant to deposit the amount of rent in the trial Court. 4. Defendant-appellant further undertakes that they will not sublet, assign or part with the possession of the rented premises or any part thereof in favour of anyone else and would not create any third party interest in the same during the aforesaid period. 5. Defendant-appellant shall furnish a written undertaking incorporating the aforesaid conditions in the trial Court or before this Court with an advance copy to the learned counsel for the respondent within a period of 15 days from today. 6. If the appellant do not comply with any of the aforesaid terms and conditions and/or fail to make payment of arrears of rent as directed above or fail to make payment of future rent/mesne profit as directed above for succeeding two months then it will be open for the plaintiff-respondent to get the decree of eviction/dispossession passed in his favour executed even before the aforesaid date and to initiate contempt proceedings in this Court. 7. Liberty is given to the plaintiff-respondent to receive/obtain the arrears of rent lying deposit with the bank. The bank concerned is directed to release/pay the amount of rent deposited by the defendant-appellant to the plaintiff-respondent.
(2.) In compliance of the aforesaid order dt. 9.7.2012, the appellant was to furnish a written undertaking incorporating the aforesaid conditions in the trial Court or before this Court within a period of 15 days from the date of the order but the required undertaking was filed before the trial Court on 5.9.2012 after the expiry of aforesaid period of 15 days and vide order dt. 13.9.2012 learned trial Court refused to take the undertaking on record on the ground that it has not been filed within the period of 15 days fixed by the aforesaid order of this Court. The trial Court further directed that warrant for possession may be issued as after the dismissal of appeal by the first appellate Court the landlord-respondent filed Execution Petition No. 9/11 before the trial Court and the same was pending. Apprehending that in compliance of warrant for possession issued by the trial Court the suit premises may be got vacated from him despite the fact that the same was to be vacated on or before 31.12.2013 in the light of order dt. 9.7.2012, the appellant has moved the present application with the prayer that the period of 15 days so fixed to file the aforesaid undertaking may be extended till 5.9.2012 the date on which the written undertaking has already been filed by the appellant before the trial Court. In support of the application affidavit of appellant has also been filed. Although the respondent appeared through his counsel but reply to the application and counter affidavit has not been filed.
(3.) It was submitted by the learned counsel for the appellant that the present is a sort of mercy petition with a prayer that the time for filing of the requisite undertaking may be extended till 5.9.2012 the date on which the same has already been filed in the trial Court as in absence of extension the time agreed by the respondent to vacate the suit premises on or before 31.12.2013 will be rendered useless as the executing Court has issued warrant for undertaking could not be filed within the time fixed by the reason that to him and it is well settled legal position that a party must not suffer from the default of his counsel. It was further submitted that even if the period of 15 days was fixed with the consent of the parties, even then the Court has inherent power to extend the same under Sec. 151 CPC and the extension cannot be refused on the ground that the respondent is not agreed to it. It was also submitted that reply to the application and counter affidavit has not been filed by the respondent disputing the cause shown for not filing the undertaking within the time fixed.;