Smt. Suraswati Devi vs Hari Chand

Rajendra Nath Mittal, J.—This order will dispose of Civil Misc. No. 860/C. II of 1978 and Civil Revision No. 1968 of 1977.

Briefly, the facts of the case are that an ex parte order of ejectment was passed by Mr. Shamsher Singh, Rent Controller, Jullundur on November 22, 1966 in favour of Hari Chand respondent and against Smt. Saraswati Devi petitioner. She filed an application for setting aside the ex parte order on the ground that in the petition for ejectment, no service was effected upon her. The application was filed by her in the Court of District Judge, as the Court of Mr. Shamsher Singh, Rent Controller has been abolished The same was entrusted by him to Mr. D.S. Chatha, Rent Controller for disposal, It appears, on transfer of D.S. Chatha, it was decided by Mr. S.S. Tiwana, Rent Controller-cum Sub Judge 1st Class, Jullundur.

The application was contested by the respondent inter alia on the ground that there was no sufficient ground for setting aside the ex parte order and that the application was not within limitation. On the pleadings on the parties, the Rent Controller framed the following issues :

Whether there are sufficient grounds to set aside the ex parte decree ?

Whether the petition is within time ?

Relief.

He held that on account of the order of Mr. D.S. Chatha dated July, 28, 1973 the application was barred on the principles of res judicata, and therefore, there were no sufficient grounds for setting aside the exparte order of ejectment. On the question of limitation, he however, held that the provisions of Limitation Act did not apply to set aside the exparte ejectment order. He further held that the decision by Mr. D.S. Chatha, that the application was barred by the period of limitation, was binding upon the parties. Consequently, the application was dismissed by him. The petitioner went up in appeal against the aforesaid order to the Appeal Authority, Jullundur who held that no appeal was competent against the order. Instead of returning the memorandum of appeal to the petitioner for presentation to the proper Court, he further decided the case on merits and affirmed the order of the lent Controller. The petitioner has come up in revision against that order to this Court. The petitioner also filed an application CM. No. 860-CII of 1978 for condoning the delay in filling the revision petition.

The first question that arises for determination is whether there sufficient reasons for condoning the delay in filling the revision petition. In order to determine this question, it will be necessary to refer to some of the dates and the salient facts. The application for setting aside the ex parte order was filed on August 3, 1973, which was dismissed by the Rent Controller cum-Sub Judge First Class on September 3, 1977. The petitioner made an application for obtaining a copy of the order of the Rent Controller on September 5, 1977 which was ready for delivery on September 19, 1977. She filed the appeal against the order to the Appellate Authority on September 27, 1977 which was dismissed in limine on November 14, 1977. She therefore, made an application for obtaining copy of the order of the Appellate Authority on November 19, 1977 which was made available for delivery on December 24, 1977. Thus it took her 36 days in obtaining the copy of the order of Appellate Authority. The revision petition in this Court was, filed by her on December 20, 1977 with an application that filing of the certified copy of the order of the Appellate Authority be dispensed with at the stage. It was listed for motion hearing on December 21, 1977 when notice was issued for January 13, 1978. In the meanwhile, dispossession of the petitioner was stayed. She also annexed copy of the order of the Rent Controller with the revision petition. She filed the application for obtaining that copy on November 21, 1977 and the copy was ready for delivery on November 29, 1977. Thus she took nine days in obtaining the copy. In case the days for obtaining copies of the orders of the trial Court as well as the appellate Court are taken into consideration, the revision petition is within limitation.

It is, however, contended by the learned counsel for the respondent that the copy of the order of the Appellate Authority was not necessary for filing the revision petition. He argues that the Appellate Authority held that no appeal lay before him, against that order. According to the counsel, the revision petition should have been filed immediately after the order was passed by the Appellate Authority on November, 14, 1977. I am not convinced with the aforesaid argument. The learned Appellate Authority in spite of holding that he had no jurisdiction to hear the appeal, did not return the memorandum of appeal to the petitioner for presentation to the proper Court. In case, he had done so, the petitioner could present the memorandum of appeal in this Court within limitation as the period of 90 days would have expired on December 2, 1977. The learned Appellate Authority chose to decide the matter on merits also. Therefore, it became necessary for the petitioner to annex the copy of the order of the Appellate Authority. She filed the revision in this Court on December 20, 1977 with uncertified copy of the order of the Appellate Authority. The copy of the order has been filed by her alongwith the application for extension of time on which it is mentioned that it was ready for delivery on December 24, 1977 as stated above. In my view, in the aforesaid circumstances, it cannot be held that the revision petition was filed beyond limitation.

It will also be relevant to point Tout that the petitioner filed the appeal before the Appellate Authority on September 27. 1977. The learned Appellate Authority admitted the appeal without any objection and decided the matter on November 14, 1977. The petitioner has filed an affidavit alongwith the application for extension of limitation that she filed the appeal before the Appellate Authority on the advice of her counsel. She has further stated that if the Appellate Authority had not admitted the memorandum of appeal when it was presented to him, she could come to this Court immediately. The petitioner, consequently, pleaded that it was on account of bona fide mistaken advice of the counsel that she filed the appeal before the Appellate authority.

On considering the aforesaid circumstances, I am of the view that the petitioner has also been able to make out a good ground fop condonation of delay, in filing the revision petition, if any. It has been held by the Supreme Court in The State of West Bengal v. The Administrator, Howrah Municipality, that if a party had acted in a particular manner on a wrong advice given by his legal advisor, he cannot be held guilty of negligence so as to disentitle the party to plead sufficient cause u/s 5 of the Limitation Act.

The Supreme Court in another case where the appellant prosecuted the appeal in a wrong forum and the matter escaped scrutiny by the office at the time of its institution, extended the limitation u/s 5 of the Limitation Act (see Balbir Singh v. Bogh Singh (1974). 76 P.L.R. 321.)

After taking into consideration all the circumstances, I am of the view that if there is any delay, there are sufficient reasons for condoning the same. The petition cannot be dismissed on the ground of limitation.

The learned counsel for the respondent referred to Sarmukh Singh Vs. Chanan Singh and Others, and Punjab State Electricity Board v. M/s Ramji Lal Basant Lal (1974) 76 P.L.R. 115. It suffices to say that the facts of the aforesaid cases are distinguishable and the observations in them are not applicable to the facts of the present case. In those cases, the memorandum of appeals were returned by the Appellate Courts which had no jurisdiction to try them and the same were filed in this Court after delay.

The second question for consideration is whether there are sufficient grounds to set aside the ex parte decree. The learned Rent Controller did not give any finding regarding this issue. He held that the application for setting aside the ex parte order was dismissed earlier and the present application was barred by principles of res judicata. It may be relevant to point out that no issue was framed on the question of res judicata. Mr. Goyal, learned counsel for the petitioner has argued that the Rent Controller in the earlier application has held that he had no jurisdiction to entertain the application. This fact has not been denied by the counsel for the respondent. If it was so, then the earlier order passed by the Rent Controller cannot operate as res judicata.

In the circumstances, this issue requires further consideration by the authorities below.

The third question that arises for determination is whether the petition was within limitation. The Rent Controller held that no limitation for filing such an application has been prescribed. He, however, in view of dismissal of the earlier application for setting aside the ex-parte order, held that the finding in that order regarding limitation was binding on him. In view of the reason mentioned above, this reasoning of the learned Rent Controller is also fallacious. This view of the Rent Controller was confirmed by the learned Appellate Authority. This finding is also liable to be set aside.

For the reasons recorded above, the orders of the authorities below are liable to be set aside. I, therefore, accept the revision petition with costs and remand the case to the Rent Controller for deciding it afresh. Counsel fee Rs. 75/-. Parties through their counsel are directed to appear before the Rent Controller on 20th April, 1978.