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2002 DIGILAW 1335 (PNJ)

Malkiat Singh v. Tara Singh

2002-12-02

V.M.JAIN

body2002
Judgment V.M.Jain, J. 1. This revision petition has been filed by Malkiat Singh, landlord, against the order dated 6.8.2002, passed by the appellate authority, condoning the delay in filing the appeal, subject to payment of costs. 2. Facts which are relevant for the decision of the present revision petition are that Malkiat Singh etc. (landlords) filed an ejectment petition against Tara Singh, tenant. Learned Rent Controller, vide order dated 3.4.2001, passed the order of eviction against the tenant. Aggrieved against the same, Tara Singh, tenant filed appeal before the appellate authority. Since the appeal was time barred, an application under Section 5 of the Limitation Act was filed seeking condonation of delay of 13 days in filing the appeal. The said application was contested by the landlords. On the pleadings of the parties, the appellate authority framed the issue as to whether there were sufficient grounds to condone the delay. Both the parties were given opportunity to produce evidence. After hearing both sides, appellate authority found that there were sufficient grounds to condone the delay of 13 days in filing the appeal. Consequently, the application under Section 5 of the Limitation Act was allowed and the delay in filing the appeal was condoned, subject to payment of Rs. 500/- as costs. Aggrieved against this order of the appellate authority, Malkiat Singh, one of the landlords, has filed the present revision petition in this court. 3. Notice of motion was issued. I have heard the learned counsel for the parties and have gone through the record carefully. 4. Learned counsel for the petitioner landlord submitted before me that no case was made out for condoning the delay in filing the appeal. It was submitted that the ground taken in the application under Section 5 of the Limitation Act that the counsel told him that the limitation for filing the appeal was 30 days, even though it was 15 days, could not be accepted and could not be made the basis for condoning the delay in filing the appeal, especially when the Advocate had long standing at the Bar. Reliance was placed on the law laid down, in the case reported as The Rajputana Trading Company Pvt. Ltd. v. Malaya Trading Agency, AIR 1971 Calcutta 313 and Syed Mujibur Rahman v. Abdul Azeez, AIR 2001 Karnataka 104. 5. Reliance was placed on the law laid down, in the case reported as The Rajputana Trading Company Pvt. Ltd. v. Malaya Trading Agency, AIR 1971 Calcutta 313 and Syed Mujibur Rahman v. Abdul Azeez, AIR 2001 Karnataka 104. 5. On the other hand, learned counsel for the respondent tenant submitted before me that there was no mala fide on the part of the respondent tenant in filing the appeal beyond limitation. It was submitted that in fact the Advocate had given the advice that period of limitation was 30 days and it was for this reason that there was delay of 13 days in filing the appeal. It was further submitted that Sh. R.S. Gill, Advocate, had appeared in the witness box as AW2 and had categorically stated that he was of the opinion that the limitation for filing the appeal was 30 days and not 15 days. It has been submitted that delay of few days in filing the appeal was rightly condoned by the appellate authority. Reliance was placed on the law laid down by the Supreme Court, in the case reported as Vedabai @ Vaijayantabai Baburao Patil v. Shantaram Baburao Patial and others, 2001(3) RCR (Civil) 831 (SC) : (2001- 3) The Punjab Law Reporter 25. 6. After hearing the learned counsel for the parties and perusing the record, in my opinion, there is no merit in this revision petition and the same is liable to be dismissed. In the application under Section 5 of the Limitation Act, it was alleged that his counsel Sh. R.S. Gill, Advocate had advised him that the limitation for filing the appeal was one month and for that reason there was delay in filing the appeal. It was further alleged that he did not know that the limitation for filing the appeal was 15 days. In the reply filed by the landlords, it was alleged that the counsel was of the standing of 15 years and could not be ignorant that the limitation for filing the appeal was 15 days and not one month. After the framing of the issues, Tara Singh, tenant, appeared in the witness box as AW1 and stated that he had handed over the papers to his counsel Sh. R.S. Gill, Advocate. Sh. After the framing of the issues, Tara Singh, tenant, appeared in the witness box as AW1 and stated that he had handed over the papers to his counsel Sh. R.S. Gill, Advocate. Sh. R.S. Gill, Advocate appeared in the witness box as AW2 and categorically stated that he was supplied certified copy of the order of the Rent Controller by his client on 12.4.2001 and that he was not aware about the period of limitation for filing the appeal and for that reason filed the appeal on 30th day, thinking that the period of limitation was 30 days. He further stated that he wrongly calculated the period of 30 days instead of 15 days. During cross examination, he stated that he was practicing for the last 15 years. He denied the suggestion that he had made a false statement to cover up the delay. In my opinion, from the statements of AWs Tara Singh and Sh. R.S. Gill, Advocate, it could not be said that there was any mala fide on the part of the tenant in filing the appeal before the appellate authority after the expiry of the period of limitation. On the other hand, on the face of it, appears that delay of 13 days in filing the appeal had occurred due to wrong advice given by his counsel Sh. R.S. Gill, Advocate, who was an Advocate having 15 years standing. In (2001-3). The Punjab Law Reporter 25 (supra), it was held by the Honble Supreme Court that distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. It was further held that in the latter case (delay of few days), such case deserves liberal approach. It was further held that no hard and fast rule can be laid down in this regard and that the court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression `sufficient cause, the principle of advancing substantial justice is of prime importance. 7. In view of the law laid down by the Honble Supreme Court, in the above mentioned authority, in my opinion, it could not be said that the learned appellate authority committed any illegality while condoning the delay in filing the appeal, especially when delay was on account of wrong advice given by the counsel. 7. In view of the law laid down by the Honble Supreme Court, in the above mentioned authority, in my opinion, it could not be said that the learned appellate authority committed any illegality while condoning the delay in filing the appeal, especially when delay was on account of wrong advice given by the counsel. The two authorities, AIR 1971 Calcutta 313 (supra) and AIR 2001 Karnataka 104, relied upon by the learned counsel for the petitioner landlords, in my opinion, would have no application to the facts of the present case, in view of the law laid down by the Honble Supreme Court, in the aforementioned authority. 8. For the reasons, recorded above, finding no merit in this revision petition, the same is hereby dismissed. 9. Since the proceedings before the appellate authority were stayed by this court, parties through their counsel are directed to appear before the appellate authority on 20.1.2003 for further proceedings in accordance with law.