Ram Prakash Gupta vs Special Judge (Essential Commodities Act) and Others

Sudhir Narain, J.—The writ petition is directed against the order dated 23.2.1996, passed by Respondent No. 1 rejecting the application of the Petitioner for substitution.

Briefly stated facts of the instant case are that the father of the Petitioner, late Shri Gopi Lal Gupta, was tenant of house No. 273/4, Rail Bazar, Kanpur Nagar. Respondent No. 3, is landlord of this accommodation. He filed application for release of the disputed accommodation, u/s 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short as the ''Act''), on the allegation that Gopi Lal was tenant of two rooms, Verandah etc. on the first floor of the house No. 273/4 Rail Bazar, Kanpur. He had purchased the house in the year 1983 for the residential purpose. His family consists of his mother, wife and three children. He is residing in one room on the ground floor in the same house. Accommodation in his possession is insufficient for him.

The tenant filed objection and contended that the need set up by the landlord, is not bona fide. The prescribed Authority, allowed the application by order dated 27.1.1995. It found that the need of the landlord-Respondent was bona fide and the tenant could shift to the house of his sons.

The tenant filed appeal against aforesaid order u/s 22 of the Act. During the pendency of appeal, Gopi Lal Gupta-tenant, died. An application for substitution was filed on 17.1.1996, by the Petitioner stating that he is son of the deceased-tenant and is entitled to be substituted in his place.

Respondent No. 3 filed objection. The first objection was that the application should have been filed within 30 days from the date of death of person concerned as provided under Rule 25 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (in short as the ''Rules'').

Second objection was that the Petitioner was not residing with his father at the time of his death and he will not be treated as heir and legal representative in view of definition as contained in clause la) of Section 3 of the Act, which provides that, in case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death, will be treated as tenant. The Petitioner filed application for condonation of delay. It was stated that under the provisions of Code of Civil Procedure, the limitation for filing application for substitution is 90 days and under Rule 25, the limitation is 30 days but as he was under misapprehension on account of mistaken legal advice, he could not file the application within time.

Respondent No. 1 rejected the application holding that ignorance of law is not excuse and delay was not liable to be condoned. It held that the deceased tenant filed written statement wherein he had stated that the Petitioner was not residing in the disputed premises in the year 1987. In view of this holding the application was rejected by the order dated 23.2.1996. Petitioner has challenged this order in the instant writ petition.

Learned counsel for the Petitioner has urged that the Petitioner had given reason for condoning the delay. The Appellate Authority has rejected the application simply on the ground that ignorance of law is not excuse for condoning the delay.

Mere fact that a person has no legal knowledge in regard to the time of filing of substitution application is itself not sufficient cause for condoning the delay but if there are circumstances which could establish that the person was misled on account of mistaken legal advice or certain other circumstances which may Justify the conduct of his filing the application belatedly, the court may consider such circumstances.

Petitioner has given reason that he was given mistaken advice that as the limitation under CPC was 90 days, the application for substitution could be filed within that time. It has not been shown that the Petitioner was not given such advice and there was no confusion in the mind of the Petitioner in regard to legal position. It is submitted that his application for substitution was filed within 90 days. The father of the Petitioner died on 14.11.1995 and the substitution application could have been filed by 14.12.1995. He filed substitution application on 17.1.1996, i.e., 33 days delay in filing the substitution application.

Considering these facts, the delay in filing the application for substitution could have been condoned.

The learned counsel for the Respondent has urged that the Petitioner was not residing with his father at the time of his death, and, therefore, he could not have been substituted. Respondent No. 1 has considered the allegation made in the written statement by his father but the Respondent No. 1 has not recorded any finding as to where the Petitioner was residing at the time of his death. The contents of the written statement may be relevant while taking into consideration other facts but the Respondent No. 1 has to record specific finding as to where the Petitioner was residing at the time of death of his father with his father. Respondent No. 1 may also record finding after taking into consideration whether the Petitioner has other residential accommodation in which he has been residing. This controversy requires fresh finding by the Appellate Authority.

In view of the above, the impugned order dated 23.2.1996 passed by the Respondent No. 1, is hereby quashed and the Respondent No. 1 is directed to decide the application afresh within one month from the date of production of a certified copy of this order.