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Allahabad High Court · body

2000 DIGILAW 934 (ALL)

Narendra Singh Sazwan v. District Judge Nainital

2000-07-20

R.H.ZAIDI

body2000
Judgment R.H. Zaidi, J. (1) By means of this petition filed under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the judgment and order dated 31.5.2000 whereby the Appellate Authority dismissed the application filed under Section 5 of the Limitation Act and also dismissed the appeal. Prayer for a writ of mandamus directing the respondents not to interfere in his peaceful possession of the petitioner over the house in dispute has also been made. (2) It appears that the contesting respondent No. 2 landlord Shri Guhb Rai, filed an application under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. XIII of 1972) for short, the Act. Said application was objected to and opposed by the petitioner. After parties produced evidence, arguments were heard by the Prescribed Authority. Prescribed Authority, after hearing the parties, dismissed the release application by judgment and order dated 20.3.1993. Thereafter, an appeal was filed by respondent No. 2 challenging the validity of the said order. The appeal filed by the landlord was allowed and the case was remanded back to the Prescribed Authority for decision afresh. It was on 12.5.1999 that the Prescribed Authority allowed the release application. The petitioner there after filed an appeal alongwith an application under Section 5 of the Limitation Act contenting that he came to know about the order of dismissal on 24.4.2000. He, there after, applied for certified copy and filed an appeal on 3.5.2000. The application filed by the petitioner for condonation of delay was objected to and opposed by the con testing respondent No. 2. It was pleaded that the petitioner had full knowledge of the decision of the Prescribed Authority, other facts stated in the application for condonation of delay were also denied. As the petitioner made allegations against the local Counsel Mr. D.S. Rana to the effect that he told him that the release application was dismissed. The Court below has also given opportunity to Mr. D.S. Rana to explain his conduct. Mr. D.S. Rana personally appeared in the Court and also filed affidavit denying the facts stated in the application for condonation of delay. It was categorically stated that he, Mr. D.S. Rana, has ever told the petitioner that the release application was dismissed. The Court below has also given opportunity to Mr. D.S. Rana to explain his conduct. Mr. D.S. Rana personally appeared in the Court and also filed affidavit denying the facts stated in the application for condonation of delay. It was categorically stated that he, Mr. D.S. Rana, has ever told the petitioner that the release application was dismissed. The Court below, after perusing the material on the record, came to the conclusion that there was no sufficient cause for condonation of delay. The petitioner slept over his rights. The delay in filing the appeal was not explained in accordance with law. The Court below, therefore, dismissed the application by its judgment and order dated 31.5.2000 and also dismissed the appeal. Hence the present petition. Learned Counsel for the petitioner vehemently urged that the Court below had no jurisdiction to exercise powers under Section 5 of the Limitation Act as the provisions of the said section were not applicable to the proceedings under the Act. It was also urged that the findings recorded by the Court below are not based on any evidence but arc based on surmises and conjectures. (3) I have considered the submissions made by learned Counsel for the petitioner and also perused the record. (4) It is not disputed that the release application was allowed on 12.5.1999. It is also not disputed that the appeal was filed in 3.5.2000 about one year after the order passed by the Prescribed Authority. Appeal was filed under Section 22 of the Act which itself provides for filing the appeal which reads as under:- "22. Appeal – Any person aggrieved by an order under Section 21 or Section 24 may within thirty days from the date of the order prefer an appeal against it to the District Judge, and in other respects, the provisions of Section 10 shall mutatis mutandis apply in relation to such appeal." In view of the aforesaid provisions, the appeal could be filed within thirty days of the order passed by the Prescribed Authority under Section 21 of the Act. Section 35 made the provisions of Sections 4, 5 and 12 of the Limitation Act applicable to the proceedings under the Act which reads as under:- "35. Section 35 made the provisions of Sections 4, 5 and 12 of the Limitation Act applicable to the proceedings under the Act which reads as under:- "35. Application of Sections 4, 5 and 12 of Limitation Act, 1963 – The provisions of Sections 4, 5 and 12 of the Limitation Act, 1963 (Act No. 36 of 1963) shall mutatis mutandis apply to all proceedings under this Act." (5) The District Judge/appellate Authority, in view of the provisions of Section 35, could condone the delay in filing the appeal if sufficient cause for con donation of delay was shown. (6) In view of the aforesaid provisions, it makes no difference if the provisions of Section 3 of the Limitation Act have not been expressly made applicable to the proceedings under the Act. The submissions made by learned Counsel for the petitioner that the Appellate Authority has no jurisdiction to dismiss the application for condonation of delay, therefore, cannot be accepted. In the present case, the explanation given by the petitioner for condonation of delay that his local Counsel Mr. D.S. Rana, Advocate gave wrong information to him regarding the result of the release application was found incorrect in as much as Mr. Rana himself appeared personally before the Court and also filed his affidavit that the allegations made against him were totally false and baseless. It was emphatically denied that he has ever given intimation to the petitioner that the case was decided by the Prescribed Authority in his favour. The Court below, taking the entire evidence, which formed part of the record, into consideration disbelieved the version of the petitioner and dismissed the application. Believing or disbelieving of evidence is a question of fact. The Court below has disbelieved the version/explanation given by the petitioner for condonation of delay and after recording cogent reasons rightly dismissed the application for condonation of delay and the appeal. The findings recorded by the Court below are findings of fact which are based on relevant evidence on the record and not on surmises and conjectures as claimed by learned Counsel for the petitioner. I do not find any illegality or infirmity in the impugned order passed by the Court below. No case for interference under Article 226 of the Constitution of India is made out. I do not find any illegality or infirmity in the impugned order passed by the Court below. No case for interference under Article 226 of the Constitution of India is made out. Lastly, learned Counsel for the petitioner submitted that some reasonable time may be granted to the petitioner to vacate the building in question. At this stage, nobody has appeared for the landlord. In my opinion, it will meet the ends of justice if four months' time is granted to the petitioner to vacate the building in question subject to the condition he furnishes an undertaking in writing before the Prescribed Authority within two weeks from today, that he shall vacate the building in question and shall hand over the vacant possession immediately after the expiry of four months or before that, and further that he shall make payment of amount of rent and damages for the period he remains in occupation. It is ordered accordingly. (7) Subject to what has been stated above, this petition fails and is dismissed in limine. Petition dismissed.