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2011 DIGILAW 57 (MAD)

S. Floret v. C. Mohan Reddy

2011-01-05

S.TAMILVANAN

body2011
Judgment :- 1. Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent. 2. Challenging the order dated 22.09.2010 passed in M.P. No.506 of 2010 in RCA. SR.11137 of 2010 on the file of VII Small Causes Court, Chennai, the Civil Revision Petition has been preferred. 3. It is seen that M.P. No.506 of 2010 had been filed under Section 5 of Limitation Act to condone the delay of 151 days in filing the appeal as against the order and decretal order dated 07.01.2010 made in RCOP. No.287 of 2008 on the file of the Rent Controller, XIII Judge, Court of Small Causes, Chennai. The learned Appellate Authority/VII Court of Small Causes at Chennai has allowed the petition filed by the respondent herein, against which the revision has been preferred. 4. Mr. S. Packiaraj, learned counsel appearing for the petitioner submitted that the respondent herein had not satisfactorily explained the delay of 151 days in preferring the appeal. The learned counsel appearing for the petitioner further contended that the reason assigned in the affidavit is that the junior counsel was handing over the case, on account of his marriage during the relevant period and hence the appeal could not be preferred in time. However, the same could not be a bonafide reason. In the affidavit, filed by the respondent/petitioner before the court below, he has stated that as he had hardly about 5 days in preferring the appeal from 02.02.2010, the appeal could have been filed on or before 07.02.2010 and due to the aforesaid reasons, the same could not be preferred which was neither willful nor wanton. He further submitted that the learned Appellate Authority could not have entertained the petition and condoned the delay. 5. Mr. R. Thiagarajan, learned counsel appearing for the respondent submitted that the Court below has applied its discretion and condoned the delay. It is seen as per the order dated 09.07.2010 passed in CRP. NPD. No.2276 to 2279 of 2010 and M.P. No.1 of 2010, that learned Single Judge of this Court, granted one year time from the date of the order i.e. 09.07.2010 for the respondent/tenant herein to vacate and hand over the possession of the premises. It is not in dispute that the original monthly rent was payable at Rs.2,000/-. But the learned Rent Controller fixed the fair rent at Rs.17,320/-. It is not in dispute that the original monthly rent was payable at Rs.2,000/-. But the learned Rent Controller fixed the fair rent at Rs.17,320/-. Learned counsel appearing for the respondent further submitted that the fair rent has been fixed for more than eight times and the appeal is a statutory right of any party. He relied upon the following decisions: 1. 1982 II MLJ page 406 (Rethinasamy vs Komalavalli and another). In Para 5, the Division Bench of this Court held as follows: 5. ...the learned Judge further proceeded to hold that by reason of Section 29(2) of the Limitation Act, 1963, Section 5 of the Limitation Act would be applicable and its applicability not having been excluded by any of the provisions of the act, the Appellate Authority will have power to entertain the application under Section 5 of the Limitation Act to condone the delay..... 2. 1989-1-Law Weekly page 225 (S. Kolandavel vs Sowrashtra Viprasabha, Namakkal by its President and Secretary at Pettai, Namakkal). Learned Single Judge of this Court in the decision has held as follows: "Even otherwise, the Appellate Authority is wrong in dismissing the application under Section 5 of the Limitation Act. This would have been a fit case for exercise of jurisdiction under Section 5 of the Limitation Act and the Appellate Authority ought to have condoned the delay". 3. 1981 1 MLJ page 275 (E.K. Venkaimarbon vs Dakshinamoorthy), another learned Single Judge of this Court held as follows: "The learned Rent Control Appellate Authority is empowered to exercise his jurisdiction under Section 5 of the Limitation Act, while exercising revisional jurisdiction." 4. 2000 (III) CTC 727 , C. Subramaniam vs Tamil Nadu Housing Board rep. by its Chairman and Managing Director). In para 31, the Division Bench of this Court held as follows: "31. 2000 (III) CTC 727 , C. Subramaniam vs Tamil Nadu Housing Board rep. by its Chairman and Managing Director). In para 31, the Division Bench of this Court held as follows: "31. To turn up the legal position,- (1) the word "sufficient cause" should receive liberal construction to do substantial (2) what is "sufficient cause" is a question of fact in a given circumstances of the case (3) it is axiomatic that condonation of delay is discretion of the court (4) length of delay is no matter, but acceptability of the explanation is the only criterion; (5) once the Court accepts the explanation as "sufficient", it is the result of positive exercise of discretion and normally the superior court should not disturb in such finding unless the discretion was exercised on wholly untenable or perverse (6) The rules of limitation are not meant to destroy the rights of the parties but they are meant to see that the parties do not resort to dilatory tactics to seek their remedy promptly (7) Unless a party shows that he/she is put to manifest injustice or hardship, the discretion exercised by the lower court is not liable to be revised (8) If the explanation does not smack of malafides or it is put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor (9) If the delay was occasioned by party deliberately to gain time, then the court should lean against acceptance of the explanation and while condoning the delay, the court should not forget the opposite party altogether." 6. It is not in dispute that unless the view taken by the court below is perverse or arbitrary, this Court cannot interfere with the same. Since it is a fair rent petition and the court below has fixed the fair rent at Rs.17,320/- from Rs.2,000/-. Hence, the statutory right of appeal cannot be denied and on technical grounds. Therefore I am of the view that there is no error or illegality in the order passed by the Rent Control Appellate Authority in providing reasonable opportunity. While passing the order, learned counsel appearing for the petitioner relied upon the following decisions: 1. 2010 9 SCC 183 (Om Prakash vs Ashwani Kumar Bassi). Therefore I am of the view that there is no error or illegality in the order passed by the Rent Control Appellate Authority in providing reasonable opportunity. While passing the order, learned counsel appearing for the petitioner relied upon the following decisions: 1. 2010 9 SCC 183 (Om Prakash vs Ashwani Kumar Bassi). The Division Bench of this Court held as follows: "East Punjab Urban Rent Restriction Act, 1949 (3 of 1949) - Sections 13-B and 18-A(2) - Leave to defend - Delay beyond prescribed period in filing application for - Power of Rent Controller to condone delay - Applicability of Section 5, Limitation Act, 1963 - Held, application for leave to contest has to be made by tenant within 15 days from date of service of summons which is period prescribed - There is no specific provision vesting Rent Controller with authority to extend time for making of such affidavit and application - Rent Controller being a creature of statute can only act in terms of powers vested in him by statute and cannot entertain an application under Section 5, Limitation Act, 1963 for condonation of delay since statute does not vest him with such power." According to the learned counsel appearing for the respondent, the decision rendered by the Hon'ble Supreme Court reported in 2010 (9) SCC 813 is not applicable to the facts and circumstances of this case. 2. 2010 (6) CTC 10 (S. Ramakrishnan and others vs S. Rajeswari). Learned Single Judge of this Court was not inclined to condone the delay of 1128 days in filing an application to set aside the exparte decree, since there was inordinate delay and sufficient cause was not shown by the petitioner to condone the delay. 7. The paramount consideration is that to meet the ends of justice in such circumstances dismissing the petition to prejudice the statutory right of the respondent and which is judicially exercised by the court below. This court need not interfere with the same. While passing the order, Mr. S. Packiaraj, learned counsel appearing for the petitioner submitted that the direction will be given to the court below to dispose of the appeal within the time limit fixed by this Court. It is not in dispute that the respondent/tenant herein has given an undertaking to vacate and hand over the possession of the premises within one year from 09.07.2010. S. Packiaraj, learned counsel appearing for the petitioner submitted that the direction will be given to the court below to dispose of the appeal within the time limit fixed by this Court. It is not in dispute that the respondent/tenant herein has given an undertaking to vacate and hand over the possession of the premises within one year from 09.07.2010. According to the learned counsel appearing for the petitioner, if the respondent vacates the premises, it would be difficult for the petitioner to collect the huge arrears of rent. The grievance represented by the learned counsel appearing for the petitioner is quite reasonable. Considering the same to meet the ends of justice, I direct the court below to dispose of the RCA within a period of three months from today solely on merits. Consequently, connected M.P. is also closed. No order as to costs.