Haji Abdul Jaleel vs P. Janardhanam

R. Banumathi, J.—This revision is directed against the order of the Principal District Munsif, Coimbatore, dated 14.11.2002, made in

I.A.No. 1727/1997 in O.S.No. 4131/1996, allowing the petition filed u/s 5 of the Limitation Act, condoning the delay of 176 days in filing the

application u/s 9 of the City Tenants'' Protection Act. The Plaintiff is the Revision Petitioner.

O.S.No. 4131/1996 :-

The suit property relates to a roof shed in the site measuring 30 ft. x 60 ft. in the North Western corner of S.F.No. 254/2 in the Athupalam

Anupparpalayam Village. The Defendant became a tenant under the Subbiah Pillai - predecessor in title of the Plaintiff. The Plaintiff purchased the

entire property viz., the vacant site, shed therein with electricity service connection from the original owner Padmanabhan, who is the son of

Subbiah Pillai. At that time, the rent payable was Rs. 200/- on the first of every English Calendar month. The Defendant committed default even

before the Plaintiff purchased the property. After issuing the legal notice u/s 106 of the Transfer of Property Act, the Plaintiff has filed the suit for

ejectment, directing the Defendant to evict and hand over vacant possession of the suit property to the Plaintiff and also to pay damages for use

and occupation.

I.A.No. 1727/1997:-

The Defendant has filed this application to condone the delay of 176 days in fling the application claiming that he is entitled to the benefits u/s 9 of

City Tenants'' Protection Act. There was a delay of 176 days in filing that application. This application has been filed to condone the delay of 176

days in filing the application u/s 9 of the City Tenants'' Protection Act.

The Plaintiff has resisted the application denying the allegations in the petition. According to the Plaintiff, summons had been duly received by

Hameed, who is the employee of the Defendant, on 13.01.1997. The delay of 176 days is not properly explained. The Defendant has been

negligent and careless in not taking immediate steps. If really the Defendant has got any right under the City Tenants'' Protection Act, the Defendant

ought to have taken vigilant steps and precautionary measures. The Defendant has not given valid and proper grounds to condone the delay and

hence the delay cannot be condoned.

Upon consideration of the averments in the petition and the counter, referring to P.S. Angaiya Raja Vs. A.K.D. Alagaraja and Others, the

learned District Munsif found that as per the above decision, petition filed u/s 5 of the Limitation Act is applicable to the provisions of the City

Tenants'' Protection Act. Accepting the contention of the Defendant, the learned District Munsif further held that because of the long delay, no

negligence could be attributed to the Defendant. Finding that the reason for the delay has been satisfactorily explained, the lower court allowed the

application filed u/s 5 of the Limitation Act, condoning the delay.

Aggrieved over the allowing of the application and condoning the the delay, the Revision Petitioner has preferred this revision. Assailing the

impugned order, the learned counsel for the Revision Petitioner contended that in view of careless and negligent conduct of the Defendant, no

indulgence could be shown, condoning the delay. Submitting that no material had been produced to substantiate the poor health condition of the

Defendant, the learned counsel for the Revision Petitioner assailed the impugned order contending that the Court below erred in condoning the

inordinate delay of 176 days and that the impugned order is palpably wrong and is to be set aside.

Countering the arguments, the learned counsel for the Respondent has submitted that the reason for not filing the petition u/s 9 of the City

Tenants'' Protection Act has been well explained by the Defendant and the trial court has rightly allowed the application thereby, condoning the

delay. Submitting that liberal approach is to be adopted in considering the application u/s 5 of the Limitation Act, the lower court has contended

that when the Court below has properly exercised the discretion, exercising the revisional jurisdiction, the High Court would not interfere with the

order unless it suffers from perversity.

The only point that arises for consideration is whether the impugned order condoning the delay of 176 days is perverse and manifestly

erroneous, warranting interference by the High Court exercising the revisional jurisdiction.

Section 9 (1) of the City Tenants'' Protection Act provides that the tenant who is entitled to compensation u/s 3 and against whom a suit in

ejectment has been instituted may, within one month after the service on him of summons, apply to the Court for an order that the landlord shall be

directed to sell the land for a price to be fixed by the Court. Under this section the application will have to be made within one month after the

service on him of summons.

Suit summons have been served on the Defendant through his employee Hameed on 13.01.1997. The Application ought to have been filed

within thirty days. But the petition u/s 9 of the City Tenants'' Protection Act was filed on 08.07.1997 with a delay of 176 days. We may refer to

the relevant dates :-

Date of receipt of summons by employee of Defendant - 13.01.1997

Application ought to have been filed u/s 9 of the City Tenants'' Protection Act within thirty days before 13.02.1997

Application filed with delay of 176 days on - 08.07.1997

In the supporting affidavit filed along with the application u/s 5 of the Limitation Act seeking to condone the delay, the Respondent Defendant has

put forth two aspects :-

Firstly, that the summons was served on his employee Hameed during his absence and the said Hameed had handed over the summons only on

08.07.1997. Secondly, the Defendant was keeping very poor health and there was domestic problem in his family and that he could not

immediately contact his counsel to hand over the summons. In the affidavit, the Defendant has explained the reason for the delay as noted above.

There is no reason to disbelieve the averments in the affidavit.

The Defendant has also stated that at the time when summons was handed over to his employee Hameed, the Defendant was unwell and that

he could not immediately attend to the matter. A pedantic view cannot be adopted doubting this version or insisting for production of medical

evidence. In considering the application filed u/s 5 of the Limitation Act, a liberal approach is to be adopted. The learned District Munsif has

exercised the discretion in condoning the delay. When the Court below has exercised the discretion, exercising the power under the revisional

jurisdiction, the High Court would not interfere with such order unless the order is shown to be perverse or illegal. There is nothing to suggest that

the order suffers from any such serious infirmity.

In the suit for ejectment, the Defendant has the right to file an application u/s 9 of the City Tenants'' Protection Act. If the delay is not

condoned, enabling the Defendant to file the application u/s 9 of the City Tenants'' Protection Act, it would cause serious prejudice to him. An

opportunity is to be afforded to him to put forth his case.

When this revision petition was heard, it was brought to the notice of the Court that in similar case (wherein the Revision Petitioner was Plaintiff

in O.S.No. 4129/1996 in I.A. No. 1726/1997) in C.R.P.No. 1540/2003, S.R. Singharavelu, J. has dismissed the revision filed by the Revision

Petitioner/Plaintiff condoning the delay on payment of cost of Rs. 1,000/- by the Respondent/Defendant to the Revision Petitioner/Plaintiff in the

trial court. To maintain consistency and to meet the ends of justice, the same order is to be maintained in this revision also.

For the reasons stated above, the delay of 176 days would be condoned on payment of cost of Rs. 1,000/- by the Defendant to the Revision

Petitioner/Plaintiff in the trial court within one month from the date of receipt of a copy of this order.

With the above modification, the impugned order passed by the Principal District Munsif, dated 14.11.2002, in I.A.No. 1727/1997 in

O.S.No. 4131/1996 is confirmed and this revision petition is dismissed. Consequently, C.M.P.No. 11339 /2003 is dismissed as unnecessary.