R. PANDIYAN v. B. M. NAGAPPA — 1997 DIGILAW 128 (KAR)

M. B. VISHWANATH, J. ( 1 ) H. R. R. P. No. 1358/1994 was filed by the tenant challenging the order passed in H. R. C. No. 2948/1989 on the file of the I Additional Small Causes Court (H. R. C. Court) allowing the landlord's (respondent in the revision petition) petition for eviction on the ground under Section 21 (1) (p) (tenant had acquired alternative suitable premises) of the Karnataka Rent Control Act. ( 2 ) ). On 30-11-1995 this Court has dismissed the revision petition for non-prosecution on the ground that the learned Counsel for the revision petitioner was absent (the learned Counsel for the respondent was present ). ( 3 ) THIS order has been passed by this Court taking into consideration that on earlier three occasions when the case was called out the learned Counsel for the revision petitioner was absent. ( 4 ) I. A. No. IV has been filed on 8-2-1996 under Section 5 of the Limitation Act praying that the delay in filing I. A. No. V (to recall the order dated 30-11-1995) be condoned. ( 5 ) I. A. No. IV is accompanied by the affidavit of the advocate. The advocate has sworn that he did not receive the cause-list dated 30-11-1995. ( 6 ) THE present respondent-landlord has filed objections to I. A. No. IV. In the objections he has stated that there are no grounds to condone the delay. ( 7 ) THE learned Counsel for the respondent- landlord relied on the decision of this Court reported in 1987 (2) Kant LJ 421, Mohammad Ilias v. Deputy Conservator of Forests wherein this Court has laid down that non-receipt of cause-list by the advocate is not a ground for recalling the order of dismissal for non prosecution. ( 8 ) THE learned Counsel for the revision petitioner-tenant has produced before me an unreported later decision of this Court in H. R. R. P. No. 4644/1991 (disposed of on 26-6-1996) wherein this Court has accepted the affidavit filed by the advocate stating that he did not receive the cause-list and restored the petition dismissed for default. ( 8 ) THE learned Counsel for the revision petitioner-tenant has produced before me an unreported later decision of this Court in H. R. R. P. No. 4644/1991 (disposed of on 26-6-1996) wherein this Court has accepted the affidavit filed by the advocate stating that he did not receive the cause-list and restored the petition dismissed for default. ( 9 ) BEARING in mind the later decision of this Court and I. A. No. IV which is accompanied by affidavit of the advocate who has sworn that he did not receive the cause-list dated 30-11-1995, I condone the delay in filing I. A No. V. Accordingly I. A. No. IV filed for condonation of delay is allowed. ( 10 ) NOW I take up I. A. No. V which has been filed praying that the order dated 30-11-1995 dismissing the revision petition for non- prosecution should be recalled. ( 11 ) I have decided I. A. No. IV in favour of the revision petitioner-tenant. I have held that there was sufficient cause for the absence of the advocate for the revision petitioner-tenant. Under normal circumstances, I. A. No. V should have been allowed. But in the instant case, the facts and circumstances are different and the conduct of the revision petitioner-tenant should be gone into to ascertain whether there is bonafides in I. A. No. V or not. ( 12 ) THE present respondent-landlord has filed objection to I. A. No. V. ( 13 ) AFTER the revision petition was dismissed on 30-11-1995, the respondent-landlord waited for two months and then took out execution in Ex. No. 474/1996 on the file of the H. R. C. Court. He has taken possession of the premises in question on 1-2-1996. ( 14 ) THE respondent-landlord has produced a photograph of a car in which some lawyer on behalf of the tenant was present. The respondent- landlord has stated in his objections that the revision petitioner-tenant carried all his belongings in a tempo bearing registration No. MYD 5527 to his own premises. ( 15 ) THE present application I. A. No. V for restoration of the petition dismissed for default has been filed only on 8-2-1996. If there was bonafides in I. A. No. V for restoration, I. A. No. V would have been filed the very next day after delivery was effected on 1-2-1996. ( 15 ) THE present application I. A. No. V for restoration of the petition dismissed for default has been filed only on 8-2-1996. If there was bonafides in I. A. No. V for restoration, I. A. No. V would have been filed the very next day after delivery was effected on 1-2-1996. There is a delay of 7 days in filing I. A. No. V. This aspect shows that there is no bonafides in I. A. No. V. As per the rules and practice of this Court before filing an I. A. , the party who files the I. A. must serve a copy of the I. A. to the opposite Counsel. This has not been done in this case. This also shows lack of bonafides in I. A. No. V. ( 16 ) THERE is another aspect which throws lurid light on the bonafides of the revision petitioner-tenant's I. A. No. V. The present respondent- landlord took possession on 1-2-1996 by executing the decree. The revision petitioner tenant filed I. A. No. V on 8-2-1996 in the office. Significantly, he moved I. A. No. V before Court only on 3-7-1996, nearly five months after I. A. No. V was filed. Allowing I. A. No. V would, therefore, mean permitting the revision petitioner-tenant to abuse the process of the Court. These undisputed facts show that there is no bonafides in I. A. No. V. ( 17 ) FOR the aforesaid reasons, I am of opinion, there is no bonafides in I. A. No. V. Accordingly it has to be rejected. ( 18 ) THE learned Counsel for the revision petitioner-tenant relied on A. I. R. 1980 SC 1528 : (1980 All LJ 654); State Bank of Saurashtra v. Chitranjan Rangnath Raja. This authority deals with as to which Court has to order restitution in the case of reversal of a decree. This authority has no application to the facts of the present case. ( 19 ) THE learned Counsel for the revision petitioner-tenant relied on AIR 1987 SC 1353 Collector of Land Acquisition v. Katiji wherein it has been laid down by the Supreme Court while considering an application under Section 5 of the Limitation Act for condonation of delay, that where substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred. I have allowed I. A. No. IV and condoned the delay in filing I. A. No. V. I have carefully and respectfully read this decision of the Supreme Court. Nowhere in this decision, bonafides or lack of bonafides on the part of the party has been considered. This decision therefore, is not applicable to the facts of the present case. ( 20 ) THE learned Counsel for the revision petitioner-tenant relied on AIR 1984 SC 41 ; Lachi Tewari v. Director of Land Records. In this decision of the Supreme Court rendered under Order 9, Rule 9 of the C. P. C. , the Supreme Court has been pleased to hold that taking into consideration that the petitioner-applicant had engaged three lawyers and the petition dismissed for default under Order 9, Ruld 9 of the C. P. C should be restored. In the case before the Supreme Court, bonafides or otherwise of the conduct of the party (not the lawyers) was not considered. In the case on hand, the revision petitioner-tenant has not shown any seriousness and bonafides in filing I. A. No. V, though the respondent-landlord had taken possession of the property. ( 21 ) IT is argued by the learned Counsel for the present respondent-landlord that the landlord, after taking possession of the premises in pursuance of the execution of the decree, has demolished the building and restitution, if prayed for, cannot be allowed and consequently I. A. No. V has to be rejected. It is not necessary to pronounce on this point since I have come to the conclusion that I. A. No. V lacks bonafides and it has to be rejected. ( 22 ) I. A. No. IV allowed and I. A. No. V rejected. Order accordingly. --- *** --- .