Kawality Leather Works and Others vs R.M. Laksmana Das

S.M. Abdul Wahab, J.—C.R.P. No. 2571 of 1996 is against the order dated 20.8.1996 in M.P. No. 735 of 1995 in R.C.A. No. 765 of

1991 on the file of the VII Judge, Small Causes Court, Madras, refusing to excuse the delay of 898 days in filing the petition to set aside the order

of dismissal for default dated 10.2.1993 in R.C.A. No,765 of 1991.

C.R.P. No. 2572 of 1996 is against the order dated 20.8.1996 in M.P. No. 815 of 1995 in R.C.A. No. 766 of 1991, on the file of the VII

Judge, Small Causes Court, Madras, refusing to condone the delay of 898 days in filing the petition to set aside the order of dismissal dated

10.2.1993 in R.C.A. No. 766 of 1991.

C.R.P. No. 2573 of 1996 is against the order dated 20.8.1996 in M.P. No. 816 of 1995 in R.C.A. No. 767 of 1991 on the file of the VII

Judge, Small Causes Court, Madras, refusing to condone the delay of 898 days in filing a petition to set aside the order of dis-missal dated

10.2.1993 in R.C.A. No. 767 of 1991.

These three revision petitions have been filed by the same petitioners against the same respondent. However, R.C.A. Nos. 766 and 767 of

1991 are against the order of fixing fair rent to different portions of the same building, while R.C.A. No. 765 of 1991 is against the order in R.

CO.P. No. 2422 of 1985 ordering eviction. Originally, the respondent''s father filed the petitions for eviction on the ground of denial of title and for

fixation of fair rents. As the fair rent fixed by the Rent Controller were excessive and the eviction order is illegal, the petitioners'' filed three rent

control appeals. They were advised by their previous counsel Mr. S.K. Sundaram that they can attend the Court after his information. hence they

did not attend his information. Hence they did not attend the Court on 10.2.1993. However, on 16.7.1995 when they contacted the lawyer, he

informed that the R.C.A. Nos. 765 to 767 of 1991 were dismissed for default on 10.2.1993. Thereafter, the appeals were filed with petitions to

condone the delay.

After considering the case in detail, the appellate Court rejected the petitions for condoning the delay. Hence, aggrieved tenants have filed these

revision petitions.

Even though in the certified copy of the order, the delay is stated to be 290 days, actual delay is 898 days. The affidavit filed in support of the

petitions for condoning the delay has not specifically mentioned the actual number of days delay. Even in the certified copy produced in Court,

there is only a blank. But however in the certified copy of the petition, the delay of 898 days is mentioned. Yet, why the appellate authority namely,

the VII Judge Small Causes Court, Madras, has mentioned the delay as 298 days is ununderstantable.

The learned Counsel for the petitioners contended that the father of the petitioners filed the appeals and he died during the pendency of the

same. Thereafter the petitioners'' came on record. They were carrying on business for the past 45 years and believing the advice of the Advocate

S.K. Sundaram, they did not attend the hearings, only on 16.7.1995 the said S.K. Sundaram, informed them about the dismissal of the appeals on

10.2.1993.

In the counter, the respondent has denied the allegations. According to the respondents, the delay was deliberate and wilful, hence they should

not be given any indulgence by the Court. Thiru. J.R.K. Bhava-nantham, learned Counsel for the petitioners, vehemently contended for the

petitioners, vehemently contended that being tenants, the clients would have been deligent and would not allow the appeal to be dismissed for

default. As they were businessmen and they were assured by the Advocate S.K. Sundaram, that he would look after the case and inform them

when necessary they could not attend the Court on 10.2.1993.

The learned Counsel contends that the proceedings before the appellate authority were not proceedings where presence of the parties is very

essential, since evidence both oral and documentary have been produced, generally the advocate clerk'' attend the Court and note the dates. He

also submits further that at the time of the final hearing. The advocates send word to the parties to be present and accordingly, the parties present,

only during the final stages of the appeals. Judicial notice may be even taken about this practice by the Courts. But the learned Counsel for the

respondent states that the said procedure is not fully correct. For every hearing, even in the appeal cases before the appellate authorities parties

attend Court or atleast send their representatives. In the circumstances, we should consider whether there was negli-gence on the part of the

petitioners to attend the Court on the relevant date namely, 10.2.1993.

The two aspects that the appellate Court have taken note of are that all the petitioners were doing business in Madras. Hence, atleast one of

them could have chosen to attend the Court. The second one is that they were misled by their advocate S.K. Sundaram. The appellate authority

has not accepted the second reason given by the petitioners. We can understand that if the delay has been 200 or 300 days, it may be considered

on reasonable explanation given therefor, but to say that they were never bothered about the case for nearly 898 days, hoping to get information

from the advocate, is really unbelievable. Even though, in fair rent cases wherein only higher rents have been fixed, the other appeal, as we have

stated earlier, relates to eviction. Hence, naturally, the tenant is expected to have some care over it. But in this case, no such care has been taken

by the petitioners. Merely blaming the counsel is unbelievable. It may be true that the said Advocate S.K. Sundaram would have informed them

that they need not attend the Court for each and every hearing, but it does not mean that they should not make even enquiries over phone for about

2 1/2 years. From the allegations, the Court is forced to come to a conclusion that there has been an attempt only to drag on the proceedings.

The learned Counsel for the petitioners cited the following decisions:

Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, ; 2. G. Ramegowda, Major and Ors Vs. Special Land

Acquisition Officer, Bangalore, ; 3. Sagayam Engineering Works Vs. Srivatsa Tube Corporation, .

In Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, the Apex Court has reiterated that when substantial justice

and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to

have vested right in injustice being done because of a nondeliberate delay. But here from the facts justice will be against the petitioners and resulting

in injustice to the respondent if the inordi-nate delay of 898 day is to be condoned. Further, the cause given by the petitioners in this case

unbelievable.

In G. Ramegowda, Major and Ors Vs. Special Land Acquisition Officer, Bangalore, the Apex Court has held that a liberal construction so as

to ad-vance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross

negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay. Here in this case, undoubtedly

gross negligence is attrib-uted to all the petitioners when they never bothered to find out the stage on of the appeals for about two and half years.

In Sagayam Engineering Works Vs. Srivatsa Tube Corporation, a single Judge of this Court has taken the view that the party should not be

penalised for the mistake of his counsel. But the learned Judge has found that the petitioner has come forward with some bona fide reason and that

he should be given an opportunity to defend the suit. In that circumstances, the learned Judge held that the Court should exercise the discretion and

condone the delay. But in the case on hand the reason given is unbelievable because no affidavit has been produced from the advocate on whom

the blame is thrown.

For the foregoing reasons, I feel the appellate authority has justified in rejecting the petitions for condoning the delay of 898 days. Hence, I am

not inclined to interfere with the same. Consequently, all the three civil revision petitions are dismissed. How-ever, there will be no order as to

costs. Consequently, C.M.P. No. 14213 of 1996 is dismissed.

Since the tenants have been in occupation for over 40 years six (6) months time is granted for vacating the premises.