1. Heard Sri Mohit Saxena, Advocate, holding brief of Sri Ajit Kumar, learned counsel for the petitioners. Though the case has been called in revised and names of Sri S.A.Alam, Sri S.A.Shah and Sri S.A.Khan have been shown in the cause list as counsel for the respondents, but none appeared on behalf of the respondents.
2. This is a writ petition filed by landlord in relation to a residential accommodation, in respect whereto S.C.C. Suit No.12 of 1986 was filed by Raj Pal Singh (petitioners' predecessors in interest) against respondent No.1 Rahimullah (now deceased and substituted by his legal heirs) for ejectment, recovery of rent and damage and mesne profits. The suit was decreed ex parte on 23.2.1987. Raj Pal Singh died and was substituted by his legal heirs, some of whom also further died and have been substituted by legal heirs. The ex parte decree dated 23.2.1987 was put in execution vide execution case No. 6 of 1987. Executing Court ordered for handing over possession of accommodation in question to the decree holder. The decree was executed on 24.9.1988 giving possession to the landlords of accommodation in question.
3. The respondent no.1 filed application under Order IX Rule 13 C.P.C. on 27.9.1988 along with an application under Section 5 of Limitation Act. It was contested by petitioner-landlords by filing objection/affidavits and in order to prove service of notice/summons upon the respondent-tenant, decree holders also summoned Postman concerned whose statement was recorded in the trial Court on 27.11.1992, copy whereof has been filed as Annexure 5 to the supplementary affidavit. He acknowledged and endorsed testimony of the fact that respondent-tenant refused to receive summon and he made this endorsement on the registered letter's envelope accordingly. The trial Court, however, recalled ex parte decree on 19.8.1994 whereagainst petitioner-landlords preferred revision i.e. S.C.C.Revision No.86 of 1994, which was allowed on 3.10.1994 remanding the matter to Trial Court to see whether restoration application is maintainable when possession of the rented property was handed over to landlords and the building stood demolished thereafter.
4. After remand, the Trial Court has held that restoration application despite demolition of building would be maintainable and accordingly again allowed the application of recall of ex parte decree vide order dated 30.1.1995 whereagainst S.C.C. Revision No.15 of 1995 filed by landlords has been dismissed by Revisional Court i.e. Vth Additional District Judge, Bulandshahr vide judgment dated 2.8.2000 and this order is under challenge in the present writ petition.
5. Sri Mohit Saxena, Advocate holding brief of Sri Ajit Kumar learned counsel for the petitioner submitted, when the subject matter of dispute i.e. the very building, which was let out to the tenant, ceased to be in existence, relationship of landlord and tenant comes to an end immediately and therefore, question of revival of suit would not arise.
6. On the contrary, it has been pleaded on behalf of respondent in his counter affidavit that tenant always have a right of restitution even in case where it is found that rented accommodation has been illegally demolished by landlord and therefore, application for setting aside ex parte decree is maintainable.
7. It is true that in normal circumstances, if a tenanted building falls down or get demolished for natural or otherwise reasons, not attributable to any of the party going to the extent of illegality, rights of the party in respect to the accommodation in question would come to an end but in otherwise cases either the affected person can be directed for restitution and restoration of his right or if it is not possible, appropriate order for damage etc. could also have been passed. It is well established that act of the Court shall prejudice none. But that by itself would not solve the problem for the reason that all these things cannot be presupposed or imagined at this stage but it would require an investigation by Court of first instance as to in what circumstances subject matter of the suit has disappeared, who is responsible and whether there is any illegality and if so, how that can be rectified/remedied.
8. In my view, it cannot be said that the mere fact that building has been demolished before restoration of suit by setting aside ex parte decree, the destroyer would succeed over the sufferer even if the former is guilty of some kind of wrong, and the later will have no remedy in law. It is well established principle of law that whenever there is a wrong, there is a remedy. No person can be left remediless. In the circumstances, at the best subsequent events may result in amendment of pleadings in plaint or written statement, as the case may be, and may invite adjudication of Trial Court on certain more issues but that by itself will not make the proceedings untenable or not maintainable. I do not propose to make any further observation for the reason that upholding of impugned orders will result in trial of the suit on merits and any further observation made by this Court may prejudice either of the parties, which this Court would like to refrain.
9. In the result, I find no merit in the writ petition.
10. Dismissed.
11. Interim order, if any, stands vacated.
Order Date:- 09.11.2012 KA