Research › Browse › Judgment

Allahabad High Court · body

1979 DIGILAW 301 (ALL)

Data Ram v. District Judge, Saharanpur

1979-03-07

K.C.AGRAWAL

body1979
JUDGMENT K.C. Agrawal, J. - This dispute in the case is with respect to a shop situated in Saharanpur. This shop belongs to the petitioners. This had been let out to respondents nos. 3 and 4. On the basis of a permission granted under section 3 of U.P. (Temporary) Control of Rent and Eviction Act, No. III of 1947, the petitioner filed a suit for ejectment against the respondents nos. 3 and 4 on 15-9-1967. The suit was decreed and the decree was confirmed by the High Court on 6-8-1968. In execution of the aforesaid decree the petitioners obtained possession on 24-1-1969. On 21-4-1970 respondents 3 and 4 filed an application before the District Magistrate Saharanpur, purporting to be under section 8 of U.P. Act No. III of 1947, alleging that the petitioners had committed breach of the provisions of the Act and criminal proceedings be taken against them. This application was contested by the petitioners. The petitioners alleged that the building was entirely a new construction and the provisions of U.P. Act No. III of 1947 were not applicable. The petitioners also alleged that the new shops were not given on rent to any person. On 26-10-1972 the Rent Control Inspector submitted a report to the District Magistrate that it was not advisable to launch any criminal proceedings against the petitioners. The report was accepted. 2. After the enforcement of U.P. Act No. XIII of 1972, the respondents 3 and 4 made an application under section 12/13 of the aforesaid Act for allotment of the shop on the ground that as the possession of the tenants admitted by the petitioners was illegal, the shop was open for allotment. The case was subsequently transferred to the court of the S.D.M. Deoband of 30-4-1973. The S.D.M. found that the shop was vacant on the ground that it had been let out illegally by the petitioners and directed for the notification of the vacancy-Against the order dated 30-4-1973 the petitioners filed a writ petition in this Court being numbered as writ petition No. 2949 of 1973. On 22-8-1975 the writ petition was dismissed on the ground that the same was not maintainable against the order declaring vacancy. After the dismissal of the writ petition, the proceedings for allotment were restarted by the Rent Control and Eviction Officer. On 22-8-1975 the writ petition was dismissed on the ground that the same was not maintainable against the order declaring vacancy. After the dismissal of the writ petition, the proceedings for allotment were restarted by the Rent Control and Eviction Officer. Petitioners again filed an application before the Rent Control and Eviction Officer for being given an opportunity to adduce evidence to show that the order notifying the vacancy earlier was incorrect. The Rent Control and Eviction Officer rejected the application therefore and after or allotted the shop on 20-9-1976. The petitioners, filed a review application. The review was rejected on the 19th May, 1977. 3. The petitioners thereafter filed two revisions before the District Judge. One of them had been preferred against the order dated 20-9-1976 allotting the premises to respondents 3 and 4 and another revision against the order dated 19-5-1977. The revision filed against the order dated 19-5-1977 was numbered as Rent Revision No. 100 of 1977 whereas revision preferred against the order dated 20-9-1976 was numbered as Misc. Case No. 52 of 1977. As the latter revision had been filed after the period of limitation prescribed for filing the same, this application was accompanied by an application under section 5 of the Limitation Act for condonation of delay. The ground for condonation given was that the petitioners had been advised by their counsel Sri Pushkar Nath, who conducted mostly Rent Control cases. That the District Supply officer had no jurisdiction to pass the allotment order dated 26-9-1976 hence there was no necessity for filing a revision against the said order under section 18 of U. P. Act No. XIII of 1972. The petitioners were advised to file a review application before the Sub Divisional Officer. The petitioners asserted that acting bonafide on this advice, the petitioners filed a review application on 22-9-1976. This review application was dismissed on 19-5-1977. The petitioners claimed that the time spent in prosecuting the review application with effect from 22-9-1976 to 9-5-1977 was liable to be excused. They further alleged that on being advised on 15-5-1977 the petitioners had filed the revision challenging the order dated 26-9-1976 on 19-5-1977. 4. Revision no. 52 of 1977 was taken up by the learned District Judge Saharanpur on 19-11-1977, having found that there was no sufficient cause for condoning the delay, the learned District Judge dismissed the revision as time barred. 4. Revision no. 52 of 1977 was taken up by the learned District Judge Saharanpur on 19-11-1977, having found that there was no sufficient cause for condoning the delay, the learned District Judge dismissed the revision as time barred. Revision No. 100 of 1977 was dismissed on 11-8-1978 on the ground that the review application filed by the petitioner was not maintainable and, as such, the order rejecting the review application was not liable to be set aside. Against the dismissal of Revision No. 100 of 1977 the petitioners filed writ petition No. 793 of 1978 whereas against the order dismissing the application for condonation of delay in Misc. Case No. 52 of 1977, the writ petition No. 2170 of 1977 had been filed. 5. Writ petition No. 793 of 1978 was dismissed as not pressed. This writ petition has been dismissed by me by a separate order. 6. Coming to writ petition no. 2170 of 1977, the controversy in this case was whether the delay in filing the revision against the allotment order made on 20-9-1976 was liable to be condoned. The case of the petitioners was that the petitioners did not prefer a revision against this order within the time allowed by law because of the wrong advice given to them by Sri Pushkar Nath Advocate. The petitioner had not filed the affidavit of Sri Pushkar Nath. He had filed his affidavit in proof of the aforesaid allegation. The affidavit of the petitioner was controverted by a counter-affidavit filed on behalf of respondents 3 and 4. The case taken by the aforesaid respondents was that the conduct of the petitioners was not bonafide and, as such, the delay was not liable to be condoned. It appears that the learned District Judge rejected the application made under section 5 of the Limitation Act for condonation of delay on the ground that the wrong advice of the counsel could not be a basis for condoning the dealy. He did not give any finding whether the affidavit filed on behalf of the petitioners was wrong and that an attempt had been made by the petitioners to get the delay condoned on the basis of a false or incorrect affidavit. He did not give any finding whether the affidavit filed on behalf of the petitioners was wrong and that an attempt had been made by the petitioners to get the delay condoned on the basis of a false or incorrect affidavit. It is settled law that the laches of a litigant may not be excuseable but if the delay of or mistake had happened due to wrong or negligent advice of a counsel and that the litigant had acted upon it believing it to be bonafide, the litigant should not be punished for the same. 7. Counsel for the respondents, however, urged that in the absence of an affidavit of the counsel himself, the petitioners could not get the delay condoned. He urged that neither had Pushkar Nath filed his affidavit nor had he made a statement at the Bar that he was really under a mistaken conception of law on this point. The counsel contended that in the absence of an affidavit of Pushkar Nath the court should not condone the delay. I would not have interfered with the order of the court below had the learned District Judge disbelieved the petitioners' case and not condoned the delay on the ground urged by the learned counsel for the respondents. I am not in a position to say that the affidavit of the applicant was only a device to cover up his laches or to save limitation. For this purpose it appears necessary that the District Judge may be directed to decide the application made under section 5 of the Limitation Act afresh. He will give an opportunity to the petitioners to file an affidavit of Sri Pushkar Nath under whose advice the petitioners did not file the revision within time. If such an affidavit is filed and after perusal of the same the court is satisfied that the petitioners bonafide acted on the mistaken advice of the counsel, it would condone the delay. In this view of the matter, the order of the District Judge is set aside and he is directed to decide the application made under section 5 of the Limitation Act afresh. 8. Sri K.M. Sinha, counsel appearing for the petitioners, contended that the District Judge may further be directed to entertain fresh evidence which would be given by the petitioners in the revision. It is not possible for me to give any such direction. 8. Sri K.M. Sinha, counsel appearing for the petitioners, contended that the District Judge may further be directed to entertain fresh evidence which would be given by the petitioners in the revision. It is not possible for me to give any such direction. It will be open to the petitioners to file fresh evidence before the District Judge and if the petitioners made out a case for admission of the same, I have no reason to believe that the District Judge would not admit the same. 9. In the result the writ petition succeeds and is allowed The order of the District Judge dated 19-11-1977 is set aside and he is directed to decide the revision as well as the application under section 5 of the Limitation Act filed by the petitioners afresh. There shall be no order as to costs.