J. Natarajan vs M.I. Syed Ibrahim

S.M. Siddick, J.—The Civil Revision petitioner herein is the respondent/tenant and the respondent in this Civil Revision petition is the petitioner/landlord before the Courts below.

The Revision petitioner/Tenant herein filed the above Civil Revision petition as against the judgment and decree dated 20.7.1998 in R.C.A. No. 66/97 passed by the learned VIII Judge. Court or Small Causes, Chennai confirming the fair and decretal order dated in. 1.1997 and made in M.P. No. 666/96 in R.C.O.P. No. 3268/97 passed by the learned IX Assistant Judge Court of Small Causes, Chennai.

It is the contention of the learned counsel for the revision petitioner/tenant that the lower Court Judge in R.C.A. No. 66/97 ought to have allowed the appeal, and the delay ought to have been condoned since the revision petitioner had given sufficient reasons for condonation of delay in filing the petition to set aside the dismissal of M.P. No. 970/90 (sic) and the Courts below failed to consider the material facts as to whether the revision petitioner was informed by this erstwhile counsel that the R.C.J.P. had been pending, and the Courts below failed to consider the averment made regarding the collusion between the petitioner''s erstwhile counsel and the respondent landlord herein but had erroneously dismissed the application in M.P. No. 666 of 1996 and so the revision petition must be admitted.

The learned counsel for the respondent/landlord repudiated the above contentions and stated that there is inordinate delay in filing the petition by the revision petitioner to restore M.P. No. 979/90 which was dismissed for default and there was no collusion between the petitioners erstwhile counsel Mr. Venkata Narashiman and the respondent/landlord herein, and as a matter of fact the erstwhile petitioner counsel had given a registered notice to the revision petitioner/tenant before even he reported no instructions and there is no sufficient cause set out by the revision petitioner for the condonation of delay in filing the petition to set aside the ex parte order of eviction in R.C.O.P. 3268/97 and both the Courts below had gone into the materials and concurrently found that the delay in filing the petition by the revision petitioner to set aside the order of dismissal of M.P. No. 970 of 1998 cannot be condoned, and so the concurrent findings of both the Courts below need not be disturbed, and the revision petition need not be admitted as the R.C.O.P. is of the year 1987.

I have carefully considered the rival contentions put forth by both the counsel on record and perused the typed set of papers filed by both the counsel on record. It is but necessary for me to extract some of the admitted facts in this case and they are as follows:

The respondent/landlord filed the petition for eviction of the Revision petitioner/tenant from the premises in question in R.C.O.P. No. 3268/87 on the grounds of wilful default in payment of rent and also on the ground of own use and occupation since the respondent/landlord was living in a rented building. The Revision petitioner/tenant contested the eviction petition in R.C.O.P. No. 3268/87, and thereafter the Revision petitioner/tenant remained ex parte, and an ex part order of eviction was passed on 2.12.1987.

That the respondent/landlord filed the execution petition for recovery of possession of the disputed building in E.P. No. 70/90 in pursuance of the ex parte order of eviction dated 2.12.1987. The notice in E.P. No. 70/90 was served on the Revision petitioner/tenant on 17.7.1990. After a delay of 43 days from 17.7.1990 till 28.9.1990 the Revision petitioner/tenant filed an application in M.P. No. 979/90 to set aside the ex parte order of eviction passed on 1.12.1987 on the ground that the landlord received all arrears of rent and the landlord promised him not to press the R.C.O.P. and he would withdraw the R.C.O.P. but the landlord did not keep his promise and instead the landlord obtained an ex parte order of eviction by keeping the tenant in dark and by playing the trick against him. These allegations of promise of the landlord to withdraw the R.C.O.P. and playing the trick are all denied by the landlord while filing the counter application to set aside the ex parte order of eviction in M.P. No. 979/90. Then the application to set aside the ex parte

order of eviction filed by the Revision petitioner/tenant in M.P. No. 979/90 came up for enquiry and at that time the then counsel appearing for the revision petitioner/tenant Mr. Venkata Narasimhan reported no instructions, and thereupon application filed by the Revision petitioner/tenant in M.P. No. 979/90 to set aside the ex parte order of eviction was dismissed on 3.12.1990. Then the respondent/landlord filed the second execution petition in E.R No. 307/98 and the notice in the second execution petition was served on the Revision petitioner/tenant on 21.7.1996. Thereafter the Revision petitioner/tenant filed the petition to set aside the ex parte order of dismissal of the earlier application in M.P. No. 979/90 along with the application u/s 6 of the Limitation Act to condone the delay of 2037 days in filing the petition to set aside the order of dismissal for default in M.P. No. 979/90 and the petition to condone the delay filed by the Revision petitioner/tenant was taken on, file as M.P. No. 666/96 and the delay execution petition in M.P. No. 666/96 was filed on 26.7.1996. The grounds alleged in the application to condone the delay of 2037 days in filing the petition to restore M.P. 979/90, dismissed for default were two fold and the first ground is that then the counsel appearing for the revision petitioner/tenant Mr. Venkata Narashiman has not sent any letter of communication to the tenant about the hearing date of M.P. 979/90 and the then counsel Mr. Venkata Narashiman had colluded with the respondent/landlord and without informing the tenant about the stage of the case and without informing the tenant, the then counsel Mr. Venkata Narashiman had reported no instructions. The above allegations made in the affidavit filed by the Revision petitioner/tenant in M.P. No. 666/96 were denied by the respondent/landlord by filing the counter.

These are the admitted facts in this case and in the light of the admitted facts we have to consider the contentions of both the counsel on record. Two grounds are alleged in para 4 of the affidavit of the Revision petitioner/tenant filed in support of this application in M.P. No. 666/96 to condone the delay of 2037 days in filing the petition to restore M.P. No. 979/90 and they are as follows:

I submit that in fact my then counsel Mr. Venkata Narashimahan had not sent any letter or communication to me about the hearing date in M.P. No. 979 of 1990 which had been posed for hearing 3.12.1990 but he had informed me that he will write letters to me as and when my presence is necessary. I submit that my then counsel Mr. Venkata Narashiman had colluded with the respondent herein and without informing me about the stage of case and without informing me anything he had reported "No instructions" on 3.12.1990 and consequently the said M.P. No. 979 of 1990 had been dismissed.

Thus there are two reasons given by the Revision petitioner/tenant. The first reason is that the then counsel Mr. Venkata Narashiman has not sent any letter of communication about the hearing date of M.P. 979/90 and another reason is collusion between the then counsel Mr. Venkata Narashiman and the respondent/landlord herein.

So far as the first ground i.e. not sending any letter or communication to the Revision petitioner/tenant about the hearing dale in M.P. No. 979/90 is concerned it is urged on behalf of the Revision petitioner/tenant that he has sent a notice dated 6.7.1996 complaining about the conduct of the counsel Mr. Venkata Narasimhan and the same is marked as Ex.A1 in the petition in I.A. No. 666/96.

Even accepting the notice issued by the Revision petitioner to his then counsel Mr. Venkata Narasimhan on 6.6.1996 marked as Ex.A1 the Appellate Authority of the rent control proceedings viz. the VIII Judge, Court of Small Causes, Madras in his order dated 20.7.1998 in R.C.A. No. 66/97 has observed in the middle of para 6 in Tamil as follows:

[Matter in vernacular-Omitted. Ed.]

The above statement of the learned Judge of the appellate authority in the Rent Control proceeding viz. the VIII Judge, Court of Small Causes, Madras in R.C.A. No. 66/97 was not controverted in this Revision petition by the learned counsel for the Revision petitioner. So it transpires that the then counsel Mr. Venkata Narasimhan has issued a notice to the revision petitioner tenant before ever he made an endorsement of reporting no instructions in the application in M.P. No. 90 and thereafter only the Rent Control Court dismissed the application in M.R. No. 979/90 for default. In the above circumstances it is futile to contend as alleged in para 4 of the affidavit filed by the Revision petitioner in M.P. No. 666/96 that the then counsel Mr. Venkata Narasimhan has not sent any letter or communication about the hearing date in M.R. No. 979/90 and so the first ground urged on behalf of the Revision petitioner/tenant necessarily fails.

The second ground alleged by the Revision petitioner is the collusion between the then counsel Mr. Venkata Narasimhan and the respondent/landlord herein allowing the petition in M.P. No. 979/90 to be dismissed for default on 3.12.1990. This is a very serious matter involving between a litigant and a lawyer, especially when the then counsel Mr. Venkata Narasimhan has issued, a notice to the Revision petitioner/tenant about the hearing date M.R. No. 9.9.90 which adverted to by the learned appellate authority viz. the VIII Judge, Court of Small Cause, Madras in the middle of para 6 of his judgment in R.C.A. No. 66/97. Yet the Revision petitioner/tenant has not chosen to get in the witness box during the enquiry in the delay excuse petition in M.R. No. 666/96 to say that there was collusion between his then counsel Mr. Venkata Narasimhan and the respondent/landlord herein in allowing the application in M.R. No. 970/90 to be dismissed for default. At least the Revision petitioner/tenant could have taken summons to the then counsel Mr. Venkata Narasimhan to examine him as a witness on his side or at least he could have requested the Court to examine Mr. Venkata Narasimhan as a Court witness in support of his affidavit allegation in para 4 of the affidavit filed in support of the application in M.R. No. 666/96. The Revision petitioner/tenant deliberately avoided the witness box to speak to this allegation of collusion between his then counsel Mr. Venkata Narasimhan and the respondent/landlord herein, and there is no explanation offered, much less any acceptable explanation for the non examination of the Revision petitioner/tenant as a witness or his then counsel Mr. Venkata Narasimhan as a witness in support of the affidavit allegation in para 4 of the affidavit of the Revision petitioner/tenant filed in support of the application in M.R. No. 666/96. It is settled law that an affidavit allegation is not evidence u/s 38 of the Evidence Act, but it can become evidence when the person, who had sworn the affidavit, had stepped into the witness box to speak to the affidavit averment and then the opposite party had that opportunity to cross examine him. Therefore, the affidavit averment of the revision petitioner/tenant about the collusion between his then counsel Mr. Venkata Narasimhan and the respondent/landlord without any proof of the same is not a ground to condone the inordinate delay of 2037 days in filing the petition to restore M.P. No. 979/90 dismissed for default as prayed for in M.R. No. 666/96 out of which the present Revision petition arise.

So on consideration of the materials on record I am of the view that there is no sufficient cause to condone delay of 2037 days in filing the petition to restore M.P. No. 979/90 dismissed for default, and there is no illegality or irregularity committed by the lower Courts in dismissing the application in M.P. No. 666/96 out of which the present Revision arise, and so this revision petition has to be dismissed but without costs, and the fair and decretal order passed by both the Courts below in M.P. No. 666/96 and in R.C.A. No. 66/97 have to be confirmed and consequently I answer this point as against the Revision petitioner/tenant and in favour of the respondent/landlord.

In the result the revision petition is dismissed but without cots. The fair and decretal order passed by the Courts below in M.P. No. 666/97 in R.C.O.P. No. 3265/87 and in R.C.A. No. 66/97 are confirmed. By consent the Revision petitioner/tenant is given four months time to vacate and deliver possession of the petition mentioned building in R.C.O.P. No. 3268/87 to the respondent/landlord. Consequently the stay petition in C.M.P. No. 14395/98 is also dismissed. No costs in the stay petition.