M/s. K. M. Patel vs M. Selvaraj and S. Sundarambal

P.D. Dinakaran, J.—Aggrieved by the order dated 23.1.2001, made in I.A. No. 10 of 2001 in R.C.O.P. No. 19 of 1996 on the file of the

learned Rent Controller, Pondicherry, refusing to condone a total inordinate delay of 705 days in representing an application to set aside the

exparte order in R.C.O.P. No. 19 of 1996 dated 28.8.1997 on the ground that the counsel had misplaced the bundle, claiming it as a genuine

professional preoccupation in the office of the counsel for the petitioner, the petitioner has preferred the above Civil Revision Petition. No doubt,

an exparte eviction order was passed on 28.8.1997 in R.C.O.P. No. 19 of 1996 on the file of the learned Rent Controller, Pondicherry, against

the petitioner-tenant, evicting him, from the premises at Door No. 137, Jawaharlal Nehru Street, Pondicherry. for the purpose of demolition and

reconstruction and for personal occupation.

Even though the petitioner-tenant filed I.A. No. 14 of 1997 before the learned Rent Controller to set aside the exparte order dated 28.8.1997

in RCOP No. 9 of 1996, with a delay of 30 days, viz. 27.9.1997 to 27.10.1997, the same was returned for certain compliance, granting time till

4.12.1997, but the papers were re-presented only on 25.2.1998 with a delay of 83 days, viz., from 5.12.1997 to 27.2.1998. Thereafter the

papers were again returned on 3.3.1998 for compliance on giving two weeks time to represent the same, viz. till 17.3.1998, in the meanwhile, the

respondent landlord filed E.P. No. 37 of 1999 to execute the order dated 28.8.1997 made in RCOP No. 19 of 1996. Only on receipt of notice in

the said E.P, the petitioner-tenant re-presented the papers, after a delay of 595 days, viz. from 17.3.1998 till 1.11.1999. Even though the papers

were again returned on 18.11.1999 giving time till 10.12.1999, the same were represented only on 5.1.2000, with a delay of 27 days.

Hence, the petitioner-tenant has preferred I.A. No. 13 of 2000 to condone the delay of 30 days in filing I.A. No. 14 of 1997 in RCOP No. 19

of 1996, IA. No. 10 of 2000 to condone the delay of 83 days in representation, viz. from 5.12.1997 to 25.2.1998. I.A. No. 11 of 2000 to

condone the delay of 595 days in re-presentation, viz. from 17.3.1998 to 1.11.1999 and I.A. No. 12 of 2000 to condone the delay of 27 days in

representation, viz. from 11.12.1999 to 5.1.2000.

in the above applications, only reason stated by the petitioner-tenant to condone the said delay is that hand bundles with returned applications

were misplaced and lost.

The reason for the said delay was denied by the respondent landlord in the respective counter, by stating that the said reason had no sufficient

cause to condone the delay and it was made deliberately to protract the proceedings in executing the order dated 28.8.1997 in RCOP No. 19 of

1996.

The learned Rent Controller by orders even dated 23.1.2001 dismissed I.A. Nos. 10, 11, 12, 13 and 14 of 2000, against which the petitioner

has preferred RCA Nos. 12, 13, 14, 15 and 16 of 2001 before the learned Rent Control Appellate Authority, who, by common order dated

12.10.2001 dismissed the same, confirming the order of the learned Rent Controller dated 23.1.2001 in I.A. Nos. 10, 11, 12, 13 & 14 of 2000.

Hence, the petitioner has preferred this revision.

In the above revision, we are not concerned with merits and demerits of the above order of eviction dated 28.8.1997, but concerned only

whether the revision petitioner-tenant had offered sufficient cause and bonafide reason for condoning the delay, viz30days from 27.9.1997 to

27.10.1997, 83 days from 5.12.1997 to 25.2.1998, 595 days from 17.3.1998 to 1.11.1999 and 27 days from 11.12.1999 to 5.1.2000.

The learned Rent Controller, Pondicherry, by his order dated 23.1.2001, observing that the reason offered by the petitioner to condone the

delay of 30 days in filing I.A. No. 14 of 2000, to set aside the exparte order dated 28.8.1997 in RCOP No. 19 of 1996 as well as to condone the

delay of 83 days viz. from 5.12.1997 to 25.2.1997 to 25.2.1998, 595 days from 17.3.1998 to 1.11.1999, 27 days from 11.122.1999 to

5.1.2000, viz. that hand bundle with returned papers were misplaced and lost in the office of the counsel for the petitioner, claiming genuine

professional pre occupation by the learned counsel for the petitioner, is not a bonafide and sufficient cause to condone the said delay and that

neither the counsel nor his clerk had chosen to let in evidence to justify the above reason, refused to condone the said inordinate delay in filing as

well as re-presenting the application to set aside the exparte order dated 28.8.1997 in R.C.O.P. No. 19 of 1996 and the same was confirmed by

the learned Rent Control Appellate Authority, by orders even dated 12.10.2001 in R.C.A. Nos. 12 to 16 of 2001.

Ms. G. Thilakavathi, the learned counsel appearing for the petitioner, placing reliance on the decision in M/s Fast Cool Services by Partners and

2 others Vs. P. Shanthakumari, contends that an application filed u/s 5 of the Limitation Act will have to be interpreted liberally in favour of the

litigant and merely because the litigant came a little late, doors of the Court shall not be closed, unless the Court is of the view that the application

itself is without bonafide or to prolong the litigation.

It is true, in considering the application filed u/s 5 of the Limitation Act, the Court should exercise the discretionary power conferred u/s 5 of

the Act liberally. But, even while liberally exercising the discretion, the Court is burdened with the obligation to test the bonafide of the reason

placed by the litigant, which should not unnecessarily cause relative hardship on the respondent also.

In the instant case, undisputedly, the papers in I.A. No. 14 of 1997 seeking to set aside the exparte order dated 28.8.1997 in RCOP No. 19

of 1997 were presented with a delay of 30 days and were returned on three occasions and on every occasion, there was a delay in re-presentation

viz. 83 days, 595 days and 27 days. The only reason offered by the petitioner-tenant to condone the delay is that the hand bundles with returned

papers were misplaced and lost, in the office of the learned counsel, claiming genuine professional preoccupation. Such a reason may be

considered if the delay had occurred continuously due to the misplacing of the paper. But the papers would not have been misplaced and lost on

every successive returns, which would only reflect the lack of bona fide and negligence on the part of the petitioner-tenant as well as his counsel.

That apart, neither the counsel nor his clerk had chosen to get into the box and justify the reason, as observed by the learned Rent Controller,

in his order dated 23.1.2001.

In this connection, both the learned Rent Controller and the Rent Control Appellate Authority rightly relied upon the ratios, viz.

(i) that carelessness of the pleader''s clerk is not sufficient cause as held by scott-smith, J, in Shahadal & Others v. Hukam Singh reported in AIR

1924 Lahore 401;

(ii) that vague reason to condone the delay cannot be believed unless the party gets into the box and speaks about the same, as held by Srinivasan,

J. in Sri Pillaiyarpatti Karpaga Vinayagar Koil Nagarathar Trust Vs. R.M. Sevagan Chettiar,

(iii) that discretion to excuse delay on sufficient cause must be based on some materials or otherwise it is perverse, as held by S.S. Subramani, J, in

Jayaverchand v. Balan reported in 1998 (I) L.W. 486; and

(iv) that the Court granting indulgence must be satisfied that there was diligence on the part of the appellant and was not guilty of any negligence

whatsoever, as held by a Division Bench of this Court (C. Shivappa and K. Natarajan, JJ, in Indian Oil Corporation Ltd., Madras Vs. Mrs.

Sakuntala Ganapathy Rao proprietor, Modern Home Agencies,

Even as per the decision in Fast Cool Services case, relied upon by the learned counsel for the petitioner, the Court should be liberal in

exercising Section 5 of the Limitation Act, unless the application itself is without bonafide or to prolong the litigation. But, in the instant case, the

conduct of the petitioner clearly reflects that he is not only negligent but also deliberately protracting the execution proceedings as he has failed to

get into the box and prove his case.

Therefore, I am of the considered opinion that the learned Rent Controller and Rent Control Appellate Authority, are right in holding that the

reasons offered by the petitioner-tenant for condoning the delay in filing and re-presenting the papers in I. A. No 14 of 1997, are not bonafide.

Mr. G.R. Swaminathan, the learned counsel for the respondent-caveator, has brought to my notice that the delivery was ordered on

5.11.2001, pursuant to which the respondent is said to have taken possession on 7.11.2001 and started to demolish the building.

Even though the learned counsel for the petitioner would contend that on 7.11.2001. the petitioner-tenant moved I.A. No. 171 of 2001, and

obtained an order to stay all further proceedings in [QE.P. No. 36 of 1997 at 3 p.m. on 7.11.2001, I am of the considered opinion that it would

not vitiate the possession taken by the respondent-landlord prior to passing of the order of stay at 3 p.m. on 7.11.2001 and consequently, the

order of stay granted at 3 p.m. on 7.11.2001 would only become infructuous. Hence, holding that the petitioner only attempts to protract the

litigation, as rightly observed by the learned Rent Controller and Rent Control Appellate Authority and that the petitioner had not offered bonafide

and sufficient cause to condone the ''delay in representing the papers in I.A. No. 14 of 1997, the revision petition is dismissed. No costs.

Consequently, C.M.P. No. 18998 of 2001 is also dismissed.