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2001 DIGILAW 374 (MAD)

R. Kumaresan v. Kewalchand

2001-03-23

D.MURUGESAN

body2001
Judgment : 1. The petitioner in this civil revision petition is the tenant in R.C.O.P.No.26 of 1997 on the file of the District Munsif cum Rent Controller, Tambaram. The respondents are the landlords. 2. The respondents filed the above R.C.O.P. under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 seeking for an order to put them in possession of TT schedule property. Pending the R.C.O.P., the landlords filed I.A.No. 144 of 1997 under Section 11(4) of the Act. Since the tenant did not file counter, he was set ex parte on 13.11.97 and the tenant was given two weeks time to pay the rental arrears and the petition was directed to be posted on 27.11.97. On the said date eviction was ordered granting one month time to the tenant to vacate the petition mentioned premises. The tenant thereafter filed M.P.No.21 of 1999 to condone the delay of 533 days in filing the petition to set aside the ex parte order of eviction. The said application came to be dismissed by the learned District Munsif cum Rent Controller by order dated 5.1.2001. It is against the said order, the present civil revision petition has been filed. 3. Thelearned counsel for the petitioner would contend that due to domestic reasons and business reasons, the application to set aside the ex parte order of eviction could not be filed in time as he could not meet his Advocate. The learned counsel submitted that while considering the question of condonation of delay, the learned Rent Controller has not properly appreciated the reasons adduced by the revision petitioner. The learned counsel would contend that even if the delay is not properly explained, the petitioner should not be punished with denial of opportunity to prosecute the case wherein his valuable rights are involved. The learned counsel would rely upon the judgments of this Court reported in R.M.Arunachalam v. PL.R.Arunachalam Chettiar and others, 2001 (1) MLJ105. Devi and others v. K.Jayaraman, 2001 (1) MLJ 231 and in Samuel alias Manas and another v. Dasammanapathy and others, 2001 (1) MLJ 568 . The learned counsel would also rely upon another judgment of this Court reported in V.Janakamma v. V.G.Rangaraj, 1973 L.W. 313 to contend that even if an ex parte order was passed and the tenant was represented by his counsel, the application for condonation of delay can be considered. 4. The learned counsel would also rely upon another judgment of this Court reported in V.Janakamma v. V.G.Rangaraj, 1973 L.W. 313 to contend that even if an ex parte order was passed and the tenant was represented by his counsel, the application for condonation of delay can be considered. 4. Onthe other hand, the learned counsel for the respondents would contend that when once the delay is not properly explained by the petitioner and the said delay is enormous as in this case, application for condonation of delay cannot be lightly viewed and ordered. The learned counsel would further contend that it is not as if the petitioner was not aware of the ex parte order of eviction passed on 27.11.97. In fact, by order dated 13.11.97 in I.A.No.144 of 1997 taken out by the landlords under Section 11(4) of the Act, the learned Rent Controller granted two weeks time to the tenant to pay the rental arrears and thereafter directed the matter to be called on 27.11.97. The tenant did not comply with the condition and did not also file counter and hence the final order of eviction in the R.C.O.P. was ordered granting one month time to the tenant to vacate the premises. Thereafter only the application for condonation of delay of 533 days was filed to set aside the ex parte order of eviction. The learned counsel would further contend that the order of eviction passed in I.A.No.144 of 1997 was on merit and the tenant has not neither complied with the said order nor filed any appeal. Therefore, when the said order has become final, the consequential order in R.C.O.P.No.26 of 1997 cannot be considered as an exparte order and hence the petition to set aside the ex parte order is not maintainable and consequently the petition to condone the delay to set aside the said order is also not maintainable. The learned counsel would further contend that R.C.O.P.No.27 of 1997 filed by the landlords against the tenant/revision petitioner for fixation of fair rent under Section 4 of the Act was defended by the same counsel who represented the tenant in R.C.O.P.No.26 of 1997. When an ex parte order was passed in the said petition also, petition in I.A.No.191 of 1997 was filed by the revision petitioner on 28.10.97 and the same was allowed on'4.11.97 and thereafter the main R.C.O.P. was listed on 1.12.97. When an ex parte order was passed in the said petition also, petition in I.A.No.191 of 1997 was filed by the revision petitioner on 28.10.97 and the same was allowed on'4.11.97 and thereafter the main R.C.O.P. was listed on 1.12.97. The tenant was also examined in chief on 11.11.98 after number of adjournments. Therefore, it is clear that the reason adduced by the tenant in the petition for delay in filing the application to set aside the exparte order of eviction is false. Hence, the learned counsel submitted that in the absence of proper explanation for the delay, the tenant/revision petitioner is not entitled to succeed in the revision petition. The learned counsel would further contend that the learned Rent Controller has considered all the submission made by the tenant in support of the application for condonation of delay and has passed a well considered order and there is no reason to interfere in the said order. 5. The reason adduced in the affidavit filed in support of the petition for condonation of delay is that “due to domestic reasons and business reasons the petitioner could not meet his Advocate to file the said application." Except the said averment, there are no other averments in the affidavit explaining the delay on the part of the revision petitioner to approach the Court to file application to set aside the ex parte order of eviction. The petitioner has not also examined himself to support the said contention. The petitioner has not also examined himself to support the said contention. In the judgment reported in R.M.Arunachalam v. PL.R.Arunachalam Chettiar and others, 2001 (1) MLJ 105 relied upon by the learned counsel f or the petitioner, it is true that this Court has held as follows:- “The upper forum of law have more often held that even if the delay is not properly explained, the petitioner should not be punished with denial of opportunity to prosecute the case, wherein his valuable rights are involved and when once such petitioners are not allowed to participate in the further proceedings by dismissing the condonation applications filed to condone the delay on certain technicalities, the other side whether has any genuine rights or not, wins the entire case and the petitioner lose s all his rights in the suit and to avoid such calamities, the petitioners could only be punished with costs and not with denial of opportunity to prosecute the case wherein his valuable rights are involved." This Court took the said view while dealing with an application for condonation of delay of 558 days in filing to restore the suit dismissed for default. That was a case where the plaintiff in the suit was the revision petitioner against a fair and decretal order of dismissal of the suit for default. The application in I.A. filed to restore the suit with condonation of delay of 558 days was also rejected by the trial Court. That was challenged in the revision petition. The learned Judge while allowing the revision petition by condoning the delay on payment of costs of Rs.2,500 took note of the fact that the lower Court failed to appreciate that the delay has been properly explained by examination of the petitioner and the Doctor who treated him as well, besides causing production of the document marked as Exs.A-1 to A-10. As already pointed out in this case, except the averments made in the affidavit filed in support of the petition for condonation of delay, the civil revision petitioner has neither examined himself not anybody to substantiate the said averments in the affidavit. Therefore, the above referred judgment relied upon by the learned counsel for the petitioner is not applicable to the facts of the present case. 6. In the judgment reported in Devi and others v. K.Jayaraman, 2001 (1) MLJ 231 . Therefore, the above referred judgment relied upon by the learned counsel for the petitioner is not applicable to the facts of the present case. 6. In the judgment reported in Devi and others v. K.Jayaraman, 2001 (1) MLJ 231 . again this Court took the view that even if the delay was quite long, the petitioner therein cannot be punished with denial of opportunity to prosecute the main case and with that finding allowed the application for condonation of delay with costs. That was a case where a suit was filed in C.S.No.551 of 1995 before the High Court, Madras. Subsequently, upon enhancement of pecuniary jurisdiction, the suit was transferred to City Civil Court and numbered as O.S.No.9306 of 1995 and the petitioners in the said revision petition was not aware of the transfer and therefore did not appear before the Court. Further, the petitioners counsel also fell ill, they could not ascertain the actual state of affairs. Only when notice on E.P. was served on them, the petitioners therein came to know that the suit was decreed ex parte and thereafter the application was filed to set aside the ex parte order. While passing the ex parte order, the City Civil Court came to the conclusion that the counsel who appeared in C.S.No.551 of 1995 before the High Court ought to have appeared in the suit after the transfer to the City Civil Court and in the absence of any appearance, the civil revision petitioners willfully allowed the matter to go ex parte. The said finding of the learned Judge was interfered by this Court in the above civil revision petition on the ground that there cannot be such presumption against the counsel when the suit was transfer red from the High Court to the Civil Civil Court in the absence of any notice either to the civil revision petitioners or to their counsel. In that context, this Court held that the Court should liberally construct the words “Sufficient Cause" while exercising their jurisdiction while considering applications filed under Section 5 of the Limitation Act, 1963. Holding so this Court condoned the delay. In that context, this Court held that the Court should liberally construct the words “Sufficient Cause" while exercising their jurisdiction while considering applications filed under Section 5 of the Limitation Act, 1963. Holding so this Court condoned the delay. However, in the present case, as pointed out that the petitioner was granted two weeks time in I.A.No.14 4 of 1997 by order dated 13.11.97 for payment of rental arrears and thereafter the matter was directed to be called on 27.11.97 and the petitioner did not represent either in person or through counsel when the petitioner was set ex parte. Moreover, in another application filed by the landlords in R.C.O.P.No.27 of 1997, the petitioner was represented by his counsel and in fact filed a counter in an application filed under I.A.No.191 of 1997 to set aside the ex parte order which was allowed on 4.11.97 and when the matter was posted for enquiry, the civil revision petitioner had examined in chief on 11.11.98 before the same Court. When the petitioner participated and filed an application on 28.10.97 to set aside the ex parte order passed therein and examined himself on 11.11.98, the reason given in the affidavit filed in support of the petitioner to condone the delay in this petition cannot be considered as acceptable one on facts. Therefore, the above judgment relied upon by the learned counsel for the petitioner is not also applicable to the facts of the present case. 7. The next judgment cited by the learned counsel for the petitioner reported in V.Janakamma v.. V.G.Rangaraj, 1973 L.W. 313 was a case where a petition filed by the tenant for restoration of the main application, that was rejected on the ground it was not maintainable as the previous order was not ex parte and the tenant was represented by counsel. In the present case, it is to be seen that the petition in I.A.No.144 of 1997 filed by the landlords under Section 11(4) was allowed on 13.11.97 with a direction to stop the further proceedings and giving two weeks time to the tenant to deposit the entire arrears of rent. Thereafter the application was posted on 27.1.97 and on the said date the consequential order of eviction was passed. Thereafter the application was posted on 27.1.97 and on the said date the consequential order of eviction was passed. It is not in dispute that the tenant/revision petitioner has neither preferred appeal as against the order in I.A.No.144 of 1997 dated 13.11.97 nor deposited the amount within the said time and allowed the Court to pass ex parte order of eviction on 27.11.97. The ex parte order on 27.11.97 is nothing but the consequential order to the earlier order passed in I.A.No.144 of 1997 dated 13.11.97 passed on merits. In that view of the matter, the order passed on 27.11.97 in the main R.C.O.P.No.26 of 1997 cannot be called as an ex parte order. 8. For the foregoing reasons, I am unable to accept the contention of the learned counsel for the petitioner that the delay in filing the application should be liberally construed as the genuine right of the petitioner over the property in question would be deprived. The judgments relied upon by the learned counsel for the petitioner reported in R.M.Arunachalam v. PL.R.Arunachalam Chettiar and others, 2001 (1) MLJ 105 and Devi and others v. K.Jayaraman, 2001 (1) MLJ 231 are not applicable to the facts of the present case. Similarly, the judgment relied upon by the learned counsel for the petitioner reported in "1973 L.W. 313" is also not applicable to the facts of this case. Moreover, I also find that the reason adduced by the petitioner in the affidavit filed in support of the application for condonation of delay cannot be construed as sufficient cause to condone the delay. I am inclined to accept the contention of the learned counsel for the respondents that the decree passed on 27.11.97 is not an ex parte decree as the same was a consequential order of eviction pursuant to the earlier order passed in I.A.No.144 of 1997 dated 13.11.97 on merits. Therefore, on both the grounds, the civil revision petition has not merit and the same is liable to be dismissed. Accordingly, the civil revision petition is dismissed. No costs. Consequently, C.M.P.No.4585 of 2001 is also dismissed.