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2001 DIGILAW 1191 (PNJ)

Kartar Singh Chawla v. Har Kishan Lal

2001-10-23

R.L.ANAND

body2001
Judgment R.L.Anand, J. 1. This is a tenants revision petition and has been directed against the order dated 15th November, 1994 who dismissed the application of the petitioner under Section 5 of the Limitation Act and consequently his appeal under Section 15 of the Haryana Urban Control of Rent and Eviction Act, 1973 (hereinafter referred to as `the Act) was also dismissed, as a result of which the order of the Rent Controller who ordered eviction of the tenant was upheld. 2. Some facts can be noticed in the following manner :- 3. Shri Har Kishan Lal landlord filed a petition under Section 13 of the Act against Shri Kartar Singh Chawla and it was averred that he is owner/landlord of shop bearing No. 672/22 shown in red colour and marked as A.B.C.D. in the site plan Ex.P.3 on a monthly rent of Rs. 182.15 along with house-tax. It was further alleged by the petitioner that the respondent had not paid the arrears of rent from 1.4.1993 to 31.12.1993 besides costs, interest and house-tax. This revision was filed on 15.1.1994. Notice of the petition was given to the tenant who appeared and tendered the rent from 1.4.1993 to 31.12.1993 at the rate of Rs. 182.15 per month along with interest and costs as assessed by the Court, but the petitioner accepted the rent, interest and costs under protest on the ground that the house-tax was not paid by the tenant. Thereafter, the tenant did not appear. So the respondent was proceeded ex parte. 4. The landlord gave ex parte evidence. He appeared as his own witness as P.W.1 and alleged that house-tax amounting to Rs. 26.25 was not paid by the tenant which was demanded vide registered notice Ex.P1. Relying upon the ex parte evidence, the learned Rent Controller vide order dated 28th May, 1994 allowed the ejectment petition and ordered the respondent to vacate the shop in dispute and hand over the actual physical possession to the landlord. 5. The tenant filed an appeal under Section 15 of the Act before the Appellate Authority, Rohtak on 6.9.1994. Along with appeal he filed an application under Section 5 of the Limitation Act for condoning the delay of 30 days in filing the appeal. Notice of the application as well as appeal was given to the landlord who filed the reply and denied the allegations. Along with appeal he filed an application under Section 5 of the Limitation Act for condoning the delay of 30 days in filing the appeal. Notice of the application as well as appeal was given to the landlord who filed the reply and denied the allegations. The learned Appellate Authority dismissed the application under Section 5 of the Limitation Act by stating that the period of limitation for filing the appeal was 30 days. The ejectment order was passed by the Rent Controller on 28.5.1994 and the appeal was filed on 3.9.1994 beyond the period of limitation and, therefore, the appeal is hopelessly barred by time. 6. Not satisfied with the order of the Appellate Authority, the present revision by the tenant. 7. I have gone through the revision. The case set up by the tenant in the application under Section 5 of the Limitation Act was that earlier the landlord also filed ejectment petition against him on the ground of non- payment of rent and when the rent was tendered, the landlord used to withdraw the ejectment application. This time also the petitioner remained under the impression that as the full payment has been made and that in the ejectment application only the ground of non-payment has been incorporated, therefore, nothing survives. But the landlord fraudulently misguided the court and while asserting wrong facts he obtained ex parte order. The learned Appellate Authority came to the conclusion that since there was unexplained delay of 65 days in filing the appeal, therefore, it should be dismissed consequent on the dismissal of the application under Section 5 of the Limitation Act. 8. However, this Court is of the opinion that the first Appellate Court has not seen the facts in right perspective. It is the common case of the parties that on the first date of hearing the tenant has paid a sum of Rs. 2060.20 being rent, costs and interest on 18.2.1994. The dispute is with regard to the house-tax and very meagre amount i.e. Rs. 26.25 is allegedly due to the landlord. No tenant would like to take a risk. Had the house-tax been legitimately due to the landlord, the tenant could also tender this small amount of Rs. 2060.20 being rent, costs and interest on 18.2.1994. The dispute is with regard to the house-tax and very meagre amount i.e. Rs. 26.25 is allegedly due to the landlord. No tenant would like to take a risk. Had the house-tax been legitimately due to the landlord, the tenant could also tender this small amount of Rs. 26.25 on the first date of hearing and he could also contest the same because it is the right of the tenant to say that he was not liable to pay the house-tax. Be that as it may, the fact remains that there was no mala fide on the part of the tenant when he did not file the appeal under limitation. A litigant could always conceive an idea that since he has already paid the rent, costs and interest before the Rent Controller and in the past also, the landlord had been doing the same thing by withdrawing the ejectment application when the tender was made by the tenant, tenant might have taken into the head that no ground for eviction survives. The proposition of law has considerably changed now and the Honble Supreme Court has repeatedly held that liberal approach should be taken in the matter of limitation until and unless it is established that there are mala fides on the part of the litigant in not filing the appeal within limitation, it should be condoned with costs. There is one more aspect of the case which has not been taken into consideration either by the Rent Controller or by the Appellate Authority. The ejectment application in this case was filed on 15th January, 1994. On that date the rental up to November, 1993 was due w.e.f. 1st April, 1993. The tender in this case has been made up to December, 1993 and this aspect of the case would always be noted by the authorities below that the house-tax even if it is due to the landlord could be adjusted from the excess rent paid by the tenant in the month of December, 1993. In these circumstances, the ground of ejectment did not survive. Be that as it may, this aspect of the case can always be considered even by the Appellate Authority at this stage. In these circumstances, the ground of ejectment did not survive. Be that as it may, this aspect of the case can always be considered even by the Appellate Authority at this stage. Therefore, I am of the opinion that the learned Appellate Authority did not act in accordance with law by rejecting the application under Section 5 of the Limitation Act. 9. Resultantly, the revision is allowed. The order of the first Appellate Authority is hereby set aside and the case is remanded back to the Court of Appellate Authority, Rohtak with the directions to re-admit the appeal to its original number and dispose of the same according to law by giving notice to the parties. Registry is directed to send the record of the trial Court immediately. The parties shall appear before the Appellate Authority, Rohtak on 20.11.2001.