N. Prabhu vs C. John Kennady

T.S. Sivagnanam, J.—This Civil Revision Petition filed under Article 227 of Constitution of India is directed against the Order dated 21.12.2009, in I.A. No. 291 of 2008, in R.C.O.P. No. 121 of 2006, on the file of the learned Principal District Munsif, Coimbatore. The Petitioner is the Tenant and the Respondent is the Landlord. The Respondent filed R.C.O.P. No. 121 of 2006 under Sections 10(3)(c) & 10(2)(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. It was contended by the Respondent-Landlord that the Petitioner became a Tenant in respect of the premises measuring about 138 square feet during 1998 for a monthly rent of Rs. 2,500/- and stated that he proposed to run a fast food restaurant during evening time every day. However, the Petitioner started to use the place as a slaughter house and committed various action of nuisance and the entire area became unhygienic causing serious health hazards. City Municipal Corporation issued several Notices and in spite of the same, the Petitioner failed to maintain hygienic atmosphere. In the meantime, the Landlord started his own business in the name of M/s. Golden Eagle Security Services in the rear side of the Petition mentioned premises. But, he requires place for the security guards to reside and since the next shop is run by the Petitioner was in such a unhygienic manner with bad-odour of rotten meat. Therefore, the Landlord called upon the Petitioner to vacate the premises. Immediately, the Petitioner filed a Suit in O.S. No. 242 of 2004, seeking for an Order of Interim Injunction. Thereafter, the Landlord filed the Eviction Petition and produced certain documents to support his contention that he is running Security Agency successfully. Though, the Petitioner received Notice in the Eviction Petition, he did not appear before the Court and did not filed Counter Statement and consequently an ex parte Order of Eviction was passed on 20.3.2008. Thereafter, the Petitioner filed I.A. No. 291 of 2008 to condone the delay of 173 days in filing the Application to set aside the ex parte Decree. The only reason given in the Affidavit is that he is suffering from viral fever and therefore, could not contact his Counsel. The Application was vehemently opposed by the Landlord by denying the allegations made by the Petitioner stating that the Petitioner has not substantiated the averment that he was unwell. The Court below after taking into consideration the case of both parties dismissed the Application holding that the reason given by the Petitioner is not supported by any evidence. Challenging the same, the Petitioner has filed this Civil Revision Petition.

Learned Counsel for the Petitioner has submitted that a liberal approach should have been adopted in the matter and the Court below failed to condone the delay without considering the fact that the Petitioner was suffering from viral fever and could not contact his Counsel. In support of his contentions he placed reliance on the following decisions of the Hon''ble Supreme Court:

(1) N. Balakrishnan Vs. M. Krishnamurthy, ;

(2) Poonam and Others Vs. Harish Kumar and Another, ;

(3) S. Ganesharaju (D) Thr. L.Rs. and Another Vs. Narasamma (D) Thr. L.Rs. and Others, .

Per contra, the learned Counsel for the Respondent submitted that the Court below has rightly dismissed the Application taking into consideration the conduct of the Petitioner that even though the Eviction Petition was filed in 2006, the Petitioner has dragged this matter for nearly 13 years and in the absence of any bona fide explanation, the Court below rightly dismissed the Application. In support of his contentions, he has placed reliance on the following decisions:

(1) Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, ;

(2) P. Sithivinayagam Vs. G. Bhoopalan, .

Heard both sides and perused the materials available on record.

The Hon''ble Supreme Court in a case in State of Rajasthan and Another Vs. Bal Kishan Mathur (D) through L.Rs. and Others, has held that in a situation where there is no gross negligence or deliberate inaction or lack of bona fides, the Courts have always taken a broad and liberal view so as to advance substantial justice instead of terminating a proceeding on a technical ground like limitation. It was further pointed that unless the explanation furnished for delay is wholly unacceptable or if no explanation whatsoever is offered or if delay is inordinate and third-party rights had become embedded during interregnum, Courts should lean in favour of condonation. Therefore, what is required to be seen is whether there was gross negligence, lack of bona fide on the part of the Petitioners. The decision cited by the learned Counsel for the Respondent reported in Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, , stated supra highlights the legal principle that if there are no mala fide in not approaching the Court within a period limitation, as a normal rule the delay should be condoned and unless the delay is gross and explanation under the same should be accepted with the term "sufficient cause" could be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in a proper perspective to the obtaining fact situation. The gross negligence on the part of the Counsel or litigant is to be taken note. The Hon''ble Supreme Court in the said judgment elucidated the governing principles while considering an Application under Section 5 of the Limitation Act and it is beneficial to refer the relevant portion of the Judgment:

For the aforesaid authorities the principles that can broadly be culled out are:

(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an Application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice.

(ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose, regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

(iii) Substantial justice being paramount and pivotal, the technical considerations should not be given undue and uncalled for emphasis.

(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the Counsel or litigant is to be taken note of.

(v) Lack of bona fides imputable to a party seeking for condonation of delay in a significant and relevant fact.

(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate, there is no real failure of justice.

(vii) The Concept of Liberal Approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former Doctrine of Prejudice is attracted, whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for liberal delineation.

(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

(x) If the explanation offered is concocted or the grounds urged in the Application are fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of Law of Limitation.

(xii) The entire grant of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:

(a) An Application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the Courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

(b) An application for condonation of delay should not be dealt within a routine manner on the base of individual philosophy, which is basically subjective.

(c) Though no precise formula can be laid down, regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

(d) The increasing tendency to perceive delay as a non-serious matter and hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.

The decision relied on by the learned Counsel for the Petitioner in the case of N. Balakrishnan Vs. M. Krishnamurthy, , relates to a case where there was a delay caused due to failure of an Advocate to inform the Appellant therein, more so, when the Appellant therein secured a compensation. Therefore, the said decision does not render any support to the case of the Petitioner. In the case of Poonam and Others Vs. Harish Kumar and Another, , the Hon''ble Supreme Court observed that there is no straight jacket formula, while considering the exercise of discretion, either considering or refusing to condone the delay. On the facts of the said case, the explanation offered was found to be satisfactory and delay being 63 days was held to be not a delay for a long period, and there has been some explanation for the delay and hence, the delay was condoned. As noticed above, the only reason pleaded by the Petitioner is that he was unwell and unable to contact the Counsel. Admittedly, no document was produced by the Petitioner to establish his sickness. Furthermore, even prior to the ex parte Decree of eviction, the Petitioner was set ex parte on 29.11.2007, itself. There is no explanation given by the Petitioner as to why he did not take any steps from 29.11.2007 and waited for the Court to pass an ex parte Order on 20.3.2008. Even thereafter, he did not take any immediate effective steps and only on 20.6.2008, filed the Application for delay. Admittedly, the Petitioner was a businessman running Meat Stall in the premises and in fact apprehending forceful eviction, he has filed a Suit against the Landlord in O.S. No. 242 of 2004, for the relief of permanent injunction. In such circumstances, the conduct of the Petitioner clearly reveals that his statement lacks bona fide and he was grossly negligent and his inaction is deliberate. In such circumstances, the Petitioner has not made out any grounds to interfere with the Order passed by the Trial Court. Accordingly, this Civil Revision Petition is dismissed. No costs.