G. K. SHARMA, J. - (1.) THIS revision petition is preferred against the judgement of Additional District Judge No. 2, Bharatpur, by which, he accepted the appeal of the non-petitioner and set aside the order of the Munsif, Bharatpur dated 29th Nov. '82,.
(2.) HIRALAL filed a suit for rent and eviction, in the court of Munsif, Bharatpur. The learned Munsif, on 2nd July, 1980, determined the rent to be paid by the defendant, and directed the defendant to deposit the amount within 15 days. On 16th July,'80, the defendant requested the court to extend the time for depositing the amount, and further time of 15 days was granted to him. Thereafter, on 17th July, '80, the defendant preferred an appeal against the order of the learned Munsif dated 2nd July, '80 and obtained a stay order from the appellate court. That appeal was dismissed on 7th Nov. '81. The defendant deposited the amount determined by the court as well as the arrears of monthly rent for the months November & December, 1981. He also submitted an application before the court to the effect that he came to know about the judgment of the appellate court on the 20th Jan. '82, and hence, the delay from 7th Nov. '81 to 21st Jan. '82, be condoned, for depositing the determined rent. The plaintiff-petitioner filed reply to the application of the defendant-non-petitioner, and he also moved an application on 18th May, '82, for striking out the defence of the defendant as the latter had failed to deposit the determined rent and the monthly rent, in time, as directed by the court. On that application, the learned Munsif agreed with the plaintiff and, vide his judgment dated 29th Nov. '82, passed the order striking out the defence of the defendant, who also dismissed the application of the defendant for extension of time. The defendant then preferred an appeal against the said order before the Additional District Judge No. 2, Bharatpur, who, vide his order dated 28th, Aug. '84, accepted the appeal of the defendant and set aside the order of the learned Munsiff. Aggrieved by that order, the present revision petition has been filed. It is not disputed that the Munsiff determined the rent on 2nd July, '80, and 15 days' time was granted to the defendant for depositing the rent. It is also not disputed that the time was extended by 15 days. But, during that period, an appeal was preferred by the defendant and a stay order was received by him from the appellate court, and he did not deposit the determined rent. When the appeal was disposed of on 7th Nov. '81, it was for the defendant to have deposited the determined rent, immediately, as directed by the learned Munsiff. Mr. Garg, the learned counsel for the non-petitioner argued that the defendant came to know about the judgment of the appellate-court on 20th Jan. '82, and after that, immediately on 21st Jan. , '82, he deposited the determined amount as well as the rent pertaining to months November & December, '81. So, according to him, there was no delay, and if there was any delay, that might be condoned, because the non-petitioner, Parmanand was not in the knowledge of the judgment. Mr. Khejriwal, the learned counsel for the petitioner argued that the judgment of the appellate court was pronounced in presence of the counsel for defendant-non-petitioner Parmanand, on 7th Nov. , '81. So, it cannot be said that defendant Parmanand had no knowledge of the judgment of the appellate court.
(3.) I agree with the argument of Mr. Khejriwal, the learned counsel for the petitioner. The appellant, while filing the appeal before the court of ADJ, was not unrepresented, but, he was represented by a counsel. His counsel argued the appeal and he was present when the appeal was disposed of. It was the duty of the defendant either to have been present on every date before the appellate court, or if he thought not to be present and relied on his counsel, then, it was his duty to have found out from his counsel about the fate of the appeal. This is no ground that after engaging a counsel, the defendant could be silent and would sleep at his house and his counsel would come to his house and inform him what had happened to his appeal. The fact of engaging a counsel, does not relieve a party of his duty of knowing as to the happenings to his case. Therefore, the ground that the defendant did not know about the judgment of the appellate court on 7th Nov. , '81, but he came to know about it only on 20th Jan. '81, is of no substance. In my opinion, this is no ground at all. Apart from this, it has not been shown as to how the defendant - non - petitioner came to know about the judgment of the appellate court on 20th Jan. '82. After 7th Nov. '81, till 20th Jan. , where the defendant - non - petitioner, Parmanand was? It is very easy to say that he did not come to know about the judgment of the appellate court earlier, but he came to know about it only on 20th Jan. , '82. Hence, I do not feel that defendant - non-petitioner Parmanand was not in the knowledge of the judgment of the appellate court on 7th Nov. , '81. Apart from this, an application was filed by the defendant on 21st Jan. , '82, requesting the court to extend the time for depositing the amount, which was only pertaining to the determined amount. In that application, the defendant prayed that time be extended for depositing the amount determined by the learned Munsiff, vide his order dated 2nd July. '80, In that application there was no mention that the amount for the months November & Dec. '81, was not deposited in time, and so, the period for those months be also extended. Even in the prayer there was no mention that time for depositing the rent relating to months November & December, 1981, be also extended. As such, there was no prayer by the defendant for extending the time for depositing the rent for the months of November & December, '81, which he was bound to deposit in time. Mr. Garg, the learned counsel for the non-petitioner then argued that in the interest of justice, time should be extended now, and the defendant who has already deposited the amount on 21st Jan. , '82 and thereafter, he has been continuing depositing monthly rent every month. ;