VALMIKI J. MEHTA, J (ORAL)
1. I fail to understand as to how certain litigants seek exercise of powers by this Court under Article 227 of the Constitution of India, especially noting that in fact the application under Order XLI Rule 33 of the Code of Civil Procedure, 1908 (CPC) which was filed by the petitioner herein before the first appellate court (who is the respondent before the first appellate court), has been allowed and interim stay granted to the respondent herein (appellant in the first appeal) against the execution of the judgment of the trial court has been vacated.
2. If an appellant has been directed to deposit the amount as interim user charges and stay is granted consequently of the execution of the judgment of eviction, then on failure of the appellant to deposit the amount, at best the stay granted is vacated. There is no provision of law that the appeal itself has to be dismissed for non-prosecution on non-compliance of an order of deposit passed for staying of the judgment of the trial court decreeing the eviction petition.
3. I have not been shown any order of the first appellate court by which when the notice which was issued in the appeal, the notice of the appeal was conditional upon the appellant depositing the amount. Though I doubt such an order is possible because the first appeal under Section 38 of the Delhi Rent Control Act, 1958 (hereinafter referred to as ‘the DRC Act’) is a matter of a statutory right and the same cannot be taken away on the ground that a conditional notice should be issued subject to deposit of user charges. Be that as it may, once there is no order of conditional notice being issued in the appeal subject to deposit of the amount for user charges, and the order of deposit was only for taking benefit of staying of the eviction order passed as per the judgment of the trial court, there does not arise the question of dismissing of the first appeal itself for non-deposit of interim user charges.
4(i) Learned counsel for the petitioner in support of his arguments places reliance upon the judgments of the Supreme Court in the cases of Kamla v. Gaurav Kumar Gupta (2009) 13 SCC 253 and Manju Swarup (D) Through LRs v. Bhupenshwar Prasad (D) Through LRs 2014 (1) RLR 228 to argue that it was not enough that the first appellate court should have vacated the interim stay by allowing the application of the petitioner, but the appeal itself had to be dismissed for non-deposit of the interim user charges.
(ii) I do not agree with the arguments urged on behalf of the petitioner by placing reliance on the judgments of the Supreme Court in the aforesaid two cases. In Kamla's case (supra), the issue before the Supreme Court was not as to whether the courts are empowered to dismiss the first appeal for non-compliance of an order of making a deposit of interim user charges. If in the facts of a particular case, the Supreme Court has observed that in case deposit is not made, then the appeal can be automatically dismissed, the same however does not lay down a general ratio or a proposition of law that the statutory first appeal has to be dismissed for non-deposit/non-compliance of an order to deposit interim user charges. Filing of a statutory first appeal is an entitlement in law unless as per certain statutory provisions of certain statutes filing of an appeal itself is conditional upon deposit of a particular amount vis in property tax matters or excise tax matters. The present appeal before the first appellate court is not an appeal where the statute being the DRC Act required deposit of an amount as a condition for filing of the appeal. Therefore, the judgment in the case of Kamla (supra) is distinguishable of facts.
(iii) Even the judgment in the case of Manu Swarup (supra) relied upon by the petitioner has no application because that was a judgment which was passed where certain execution proceedings were pending and there was no issue therein with respect to an appellate court being bound to dismiss a statutory first appeal only for non-deposit of an amount which was directed to be deposited as an interim user charges/mesne profits.
5. I fail to understand as to why certain litigants should unnecessarily use the process of Article 227 of the Constitution of India, merely because Article 227 exists in the Constitution, especially in those cases where in fact an application of the petitioner is allowed by the first appellate court and the stay granted against the execution of the judgment of the trial court is vacated. I do not think litigants are correctly advised in these cases where there is no provision under the statute requiring deposit of an amount as a condition precedent for consideration of an appeal.
6. As already discussed above, deposit of an amount for staying the operation of the judgment of the trial court is different than the deposit of an amount which is a condition precedent for hearing of the appeal.
7. As the present petition is a gross waste of judicial time, the same is therefore dismissed with costs of Rs. 10,000/- to be deposited with the Delhi High Court Legal Aid Services Committee within a period of four weeks from today.