IMPORTANT POINT
A party may file a subsequent application even after an earlier application is dismissed for technical reasons, provided the underlying obligations remain.

JUDGMENT :

Pankaj Purohit, J.

By means of this writ petition, petitioner has challenged the order dated 16.12.2023, passed by 1st Additional District Judge, Haridwar in Civil Appeal No.27 of 2022, annexure-10 to the writ petition, whereby an application No.17C2 and objections No.26C2 moved by the respondent-plaintiff was allowed and petitioner-defendant was directed to deposit the entire decreetal amount before the next date fixed i.e. 10.01.2024.

2. Heard learned counsel for the petitioner.

3. The suit filed by the respondent-plaintiff was decreed by judgment and decree dated 07.05.2022 and the counter claim for permanent injunction filed by the petitioner-defendant no.2 was dismissed and the petitioner-defendant no.2 was directed to handover the possession of the subject matter of the property to the respondent-plaintiff within 30 days and to deposit the user charges i.e. mesne profit @ Rs.1,000/- per month from the date of institution of suit till the date of decree. The petitioner-defendant no.2 feeling aggrieved filed a Civil Appeal No.27 of 2022 before the learned District Judge challenging the said decree 2 and while admitting the appeal for hearing, the judgment and decree was stayed till the next date of listing i.e. 14.07.2022, provided the entire decreetal amount is deposited by the appellant within a week. The said order was passed by the learned First Appellate Court on 20.05.2022.

4. In compliance of the interim order dated 20.05.2022 passed by the Appellate Court, petitioner had deposited a sum of Rs.555/-, the decree amount i.e. rent of the property while no amount towards the mesne profit/user charges were deposited. The respondent plaintiff has moved application before the appellate court asking for vacating the stay order as the petitioner defendant no.2 has not deposited the entire decreetal amount including the mesne profit.

5. From the endorsement made in the application, it is reflected that the application was not pressed simply for the reason that it did not contain the signature of the respondent-plaintiff. Petitioner, thereafter, moved another application on 25.02.2023, annexure-9 to the writ petition, praying to vacate the stay order, as made in the earlier application for the reason that the order dated 20.05.2022, by which decree dated 07.05.2022 was stayed, was not complied with, since the stay order was conditional one, the same stood vacated.

6. The objection was filed by the petitioner defendant to the said application and it has been stated that the petitioner has got the first application dismissed as not pressed, therefore, the second application is not maintainable. Learned 1st Additional District Judge, 3 Haridwar did not find favour with the objection made by the petitioner-defendant no.2 and allowed the application moved by the petitioner and directed the petitioner to deposit the entire decreetal amount till the next date fixed i.e 10.01.2024, as stated above.

7. It is submitted by learned counsel for the petitioner that the order passed by learned appellate court is bad in law for the reason that the petitioner cannot move subsequent application once his earlier application is dismissed as not pressed.

8. Having gone through the record of the case, this Court does not find any substance in the arguments advanced on behalf of the petitioner-defendant, simply for the reason that the earlier application was not pressed for a technical reason i.e. the application does not contain any signature of the respondent-plaintiff. The entire amount which was due against the respondent defendant no.2 on the date of passing the decree is clearly explicited from the judgment and decree dated 07.05.2022.

9. The petition is dismissed accordingly.