M/s. While Brothers vs G. Kailasam

K.M. Natarajan, J.—This Civil Revision petition is directed against the order passed by the Appellate Authority dismissing the application

tiled by the revision-petitioner/tenant. The facts, which give rise to this revision are briefly as follows:-The respondent/landlord filed a petition for

eviction of this revision-petitioner under S. 10(3)(c) of the Tamil Nadu Buildings, (Lease and Rent Control) Act, Act 18 of 1960, as amended by

Act 23 of 1973 (hereinafter referred to as the Act) in R.C.O.P. No. 1990 of 1982 in the Court of Small Causes. Madras, on the ground that the

demised premises is required for him for his additional accommodation. The Revision-petitioner herein did not file a counter and the matter was

posted finally after four years on 8-9-1986 for filing counter. He did not appear and file counter. His request for adjournment was negatived. He

was set exparte and the matter was adjourned to 17-9-1986 for evidence of the respondent-landlord. On that day, he filed a petition M.P. No.

900 of 1986 to set aside the exparte order passed against him on the ground that he was unwell on 8-9-1986. The said application was resisted

by the respondent, who would contend that four years have elapsed after the filing of the petitioner, that the revision-petitioner did not choose to

file counter, but adopted delaying tactics with a view to protract the proceedings as long as possible, that the revision-petitioner filed a number of

petitions, that even in the last R.C.A. No. 511 of 1985 the Appellate Authority directed the revision-petitioner to file counter on 20-7-1986 and

the Rent Controller was directed to dispose of the petition before 29-8-1986, that in spite of the above direction he did not choose to file a

counter and that there is absolutely no bona fide in the said application. The Rent Controller dismissed the petition on 10-12-1986 holding that the

revision petitioner has not given any acceptable reason for setting aside the exparte order passed against him, that the petition has been filed only to

protract the main R.C.O.P. filed against him and that there is no merit in the petition. Aggrieved by the same, the revision-petitioner filed an appeal

before the Appellate Authority in R.C.A. No. 25 of 1987. The Revision-petitioner was unsuccessful. Hence this revision. The learned counsel for

the revision-petitioner, Mrs. Aruna Jagadeesan. submitted that in view of the innumerable proceedings between the parties, there was no occasion

for filing a counter. The Rent Controller ''ought to have accepted the reasons given by the revision-petitioner for his non-appearance and allowed

the application. The appeal was also filed in time and there was no time. The learned Appellate Authority was not correct in holding that the appeal

was barred by limitation.

Now, on the question of merits, it is seen that the respondent filed R.C.O.P. No. 1990 of 1982 on 22-4-1932 for eviction of the revision-

petitioner. The revision-petitioner filed a petition in M.P. No. 1025 of 1984 under S. 19 of the Act. The said petition was dismissed directing the

revision-petitioner to raise his plea in the counter. In the appeal preferred by the revision-petitioner in R.C.P. No. 511 of 1985, the Appellate

Authority directed the revision petitioner to appear before the Rent Controller on 20-7-1986 and file the counter and the documents, and the Rent

Controller was directed to dispose of the case before 29-8-1986 The revision-petitioner did not file counter as directed above and it has been

periodically adjourned and posted to 8-9-1986 for filing counter. On that day, he did not appear and he was set exparte. A petition was filed to

set aside exparte order on the ground that he was unwell, along with a medical certificate. The said application was resisted. No evidence was

adduced on the side of the revision petitioner and the alleged illness was not established by examining the Medical Officer. Considering the facts

and circumstances of the case, the Rent Controller came to the conclusion that the petition has been filed only to protract the proceedings and that

there is no bona fide in the petition. Consequently the petition to set aside the exparte order was dismissed. The appellate Authority also concurred

with the reasons given by the Rent Controller and observed that there is absolutely no reason whatsoever for not filing counter and that there is

nothing to rebut the contention of the respondent that the revision-petitioner absented himself only with a view to protract the proceedings. After

hearing the learned counsel appearing on either side and after going through the history of the case, I am of the view that the concurrent finding of

both the courts in this regard cannot be said to be erroneous or perverse or suffers from any infirmity whatsoever since there is no justification for

the revision-petitioner not to file a counter for nearly four years and that too even after the direction given by the Appellate Authority on the appeal

filed by him, fixing the time for filing counter by 20-7-86 and for completing the enquiry by 29-8-86 in the rent control petition. The presence of the

revision-petitioner is not necessary for filing counter on 8-9-1986 and he could have given instructions prior to that date to his counsel to file the

same. Even on 17-9-1986 when the case was posted for evidence, he has not filed counter and he filed only a petition to adjourn the case. In this

connection, the decision in Arukkaniammal v. Gurusamy 100 L.W. 707, may be referred to and it is held therein:

A vague allegation that the defendant was ill is hardly any justification for setting aside the exparte decree and such an allegation cannot amount to

proof of sufficient cause which is a mandatory requirement before an exparte decree is set aside.

As such, I do not find anything illegal in the concurrent findings of both the authorities below which would warrant interference by this Court.

As regards the question of limitation, it is seen that the impugned order which is under revision was passed on 10-12-1986 and the time for filing

appeal expired on 25-12-1986. The Court was closed for Christmas Vacation from 25-12-1986 to 4-1-1987 and re-opened on 5-1-1987. It

was only on that day, 5-1-1987 the copy application was filed for grant of copies of the order, and even before the copies were received, the

appeal was filed on 13-1-1987. It is submitted by the learned counsel for the respondent that the copy application was filed after the expiry of the

period of limitation and that S. 4 of the Limitation Act is not applicable for filing copy application and in computing the period of limitation under S.

12 of the Limitation Act, this period cannot be excluded and as such the copy application filed on 5-1-1987 is barred by limitation and

consequently the appeal filed on 13-1-1987 with a copy of the decree and the order is also barred by limitation. In support of the said contention,

my attention was drawn to various decisions and it is needless to refer to all the decisions relied on by the learned counsel. In Avasarala Kamaraju

Pantulu and Another Vs. Balla Saramma, . it was held:

Therefore under S. 4 of the Act, the only privilege which is granted to the suitor or the appellant is that he may file his suit or appeal on a date after

the expiry of the prescribed period if that period had expired while the court was not sitting. If he delays in making his application for a copy until

that day, then he is applying for a copy when the period of limitation has already expired and the extension which is granted to him by the

application of S. 4 cannot be combined with the extension which he seeks under S. 12.

It was observed that S. 12 assumes that the time requisite for obtaining copy of decree must begin before prescribed period is over. That was also

a case where the period of limitation expired before summer vacation. Instead of filing the appeal on the re-opening day, the copy application was

filed under S. 12. It was held that extension of time granted by S. 4 cannot be combined with extension sought under S. 12, and the appeal is

barred by limitation. The Court below relied on the decision in Municipal Councillors of Puri Municipality Vs. Madhusudhan Das Mohapatra, . In

that decision, relying on the decision of the Privy Council reported in AIR 1935 85 (Privy Council) , and the decisions of Courts, it was held:

Limitation for filing appeal expiring during vacation-Application for copies of judgment and decree made on the re-opening day. Time taken in

obtaining copies cannot be excluded.

In Kanhaiyalal Vs. Ramkishan and Others, ., it was held the same effect as follows:

Limitation expiring on a day in vacation Application for copies of judgment made after Court''s re-opening to be deemed as made after limitation-

Vacation period cannot be excluded for computation.

In Bhagwan Swarup Vs. Municipal Board, Ujhani and Others, it was held that while admittedly Ss.12 and 14 provide for extension a limitation, if

an application for copy of judgment on the date of reopening of Court the appellant is not entitled to exclusion of am taken in obtaining copy.

On the other hand, the learned counsel for the revision petitioner submits that in the instant case the limitation expires on 25-12-1986. that on

the re-opening day. the copy application was filed and it is within time. The learned Counsel relied on the decision reported in State of Uttar

Pradesh Vs. Maharaj Narain and Others, . That decision is not helpful to the case of the revision-petitioners as that was a case under S. 12 (2) of

the Limitation Act, and the effect of S. 4 was not considered. Their Lordship have held that S. 12 (2) of the Act enlarges the period of Limitation

under entry 157 of Schedule 1. There, the question of expiry of limitation during the period of vacation did not arise. The only question that arose.

that case is whether S. 12 (2) lays no obligation the appellant to be prompt in his appellant action for a copy of the order and that computing the

period of limitation prescribed for an appeal, the day on which the judgment or order complained of was pronounced and the time taken by the

court to make available the copy applied for, have to be excluded. The learned counsel for the revision-petitioner then relied on the decision in

Saminaiha Iyer v. Venkatasitbba Iyer ILR 27 Mad 21. It is seen that the said decision was not approved by the subsequent Division Bench of this

Court. In Kamaraju v. Saramina 55 L.W. 426 = AIR 1942 Mad 604, the same has been referred to and the learned Judge has observed:

In Masilamarl v. Arunga Mudali 12 M.L.W. 460, which has been cited by the learned counsel for the respondent, another Bench of this Court

refused to follow Saminaiha Iyer v. Venkatasubba Iyer ILR 27 Mad 21, unless the facts of that case were in all respects reproduced. It seems to

me that in these circumstances there is no direct authority in Madras which is binding upon me and with respect I am in agreement with Ramesam,

J. in Ummathu v. Pathumma 44 Madras 817. in holding that the Allahabad and Bombay decisions referred to by the learned counsel for the

appellants in support of this appeal are wrong.

The view expressed in Avasarala Kamaraju Pantulu and Another Vs. Balla Saramma, , is consistently taken by this Court both prior and after the

said decision. Hence, the decision relied on by the learned counsel for the revision-petitioner is not helpful in view of the later decisions of this

Court. Learned counsel for the revision-petitioner contended relying on the decision in Udai Bhan v. Hari Shankai AIR 1934 S.C. 469., that when

the Court below admitted the appeal and the office also did not raise any objection, the court below ought to have given an opportunity to the

petitioner herein to file a condonation application and hence the petitioner has to be given an opportunity "" before the Appellate Authority to

condone the delay. Learned counsel for the revision-petitioner relied on the decision Smt. Shakuntala Devi Vs. Banwari Lal and Others, wherein it

was held that no separate and formal application under S. 5 of the Limitation Act is necessary and the court can decide whether delay deserves to

be condoned on facts stated on affidavit in the application for setting aside abatement. In the instant case, the appeal was not dismissed solely on

the ground that it is barred by limitation, But, even on merits it was held that the revision petitioner has no case. As such, no useful purpose would

be served by remanding the matter to the Appellate authority for the purpose of giving an opportunity to the revision-petitioner to file a petition to

condone the delay in filing the appeal. There is no valid and acceptable reason to condone the delay so far given. As it is, the copy application itself

was filed after the expiry of the period of limitation. Hence, I am of the view that this is not a fit case for remanding the matter for the purpose of

giving opportunity to the petitioner to file a petition to condone the delay. For all these reasons, the revision petition fails and stands dismissed.

However, in the circumstances of the case, there will be no order as to costs. However, learned counsel for the petitioner represents that the

petitioner may be given three months time to vacate the premises. Considering the facts and circumstances of the case, the revision petitioner is

granted three months time from today to vacate the premises.