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Rajasthan High Court · body

2013 DIGILAW 2025 (RAJ)

Ashvini Moolraj Kamdar v. Vivek Choudhary

2013-11-18

BELA M.TRIVEDI

body2013
Hon'ble TRIVEDI, J.—The present revision petition has been filed by the petitioner-defendant under Section 115 of Code of Civil Procedure, 1908, wherein the petitioner has prayed to set aside the judgment and decree dated 11/01/2005 passed by the Civil Judge (Junior Division) and Judicial Magistrate, Jaipur City (East), Jaipur (hereinafter referred to as 'the Trial Court') in Civil Suit No. 145 of 2002, and to set aside the order dated 15/09/2011 passed by the Additional District and Sessions Judge No.5, Jaipur Metropolitan, Jaipur (hereinafter referred to as 'the Appellate Court') in Civil Regular Appeal No. 46 of 2005, whereby the Appellate Court had dismissed the application of the petitioner seeking condonation of delay occurred in filing the appeal, under Section 5 of the Limitation Act. 2. The short facts, giving rise to the present petition, are that the respondent-plaintiff had filed the application under Section 6 of the Rajasthan Rent Control Act, 1950 (hereinafter referred to as 'the said Act') seeking fixation of the standard rent in respect of the suit premises occupied by the petitioner as a tenant. The said application was registered as Civil Suit No.145 of 2002 before the Trial Court. The said suit was resisted by the petitioner-defendant by filing the written-statement. It appears that after the evidence of the respondent-plaintiff was over, the matter was fixed for evidence to be produced by the defendant-petitioner on 22nd July, 2004. However, on that day, no witness was produced on behalf of the petitioner-defendant, and therefore the Trial Court had granted one more opportunity to the petitioner, subject to the payment of cost of Rs.100/-, and fixed the matter on 28th August, 2004. On the said date, the learned counsel appearing for the petitioner submitted “No Instructions” application, and therefore the Court passed the order to proceed against the petitioner exparte. The Trial Court thereafter considering the evidence adduced by the respondent-plaintiff, decreed the said suit vide the judgment dated 11/01/2005, fixing the standard rent of the said premises at Rs. 6,100/- per month, and further holding that the respondent-plaintiff shall be entitled to the said standard rent from the date of filing of the suit. 3. The Trial Court thereafter considering the evidence adduced by the respondent-plaintiff, decreed the said suit vide the judgment dated 11/01/2005, fixing the standard rent of the said premises at Rs. 6,100/- per month, and further holding that the respondent-plaintiff shall be entitled to the said standard rent from the date of filing of the suit. 3. According to the petitioner, he came to know about the said judgment and decree dated 11/01/2005 passed by the Trial Court when he received the notice from the Advocate of the respondent on 01/08/2005, calling upon him to make payment of the arrears of rent. The petitioner thereafter obtained the certified copy of the judgment and decree dated 11/01/2005, and filed the appeal being No.46 of 2005 along with the application under Section 5 of the Limitation Act before the Appellate Court. The Appellate Court vide the impugned order dated 15/09/2011 dismissed the application under Section 5 of the Limitation Act, and also dismissed the appeal vide separate order of the same date holding that the Appeal was time barred. Being aggrieved by the same, the present revision petition has been filed by the petitioner-defendant. 4. In response to the preliminary objection raised by the learned counsel Mr. Sudesh Bansal for the respondent as regards the maintainability of the revision petition, the learned counsel Dr. P.C. Jain for the petitioner submitted that the remedy of filing revision has been provided under Section 22 of the said Act, and it is only the procedure for such revision application, which is required to be followed as per Section 115 of the CPC. According to him, there is a difference between the issue of maintainability of the revision application, and the issue of the powers of the Court to interfere in the revision petition. In this regard, the learned counsel Dr. Jain has relied upon the decision of the Division Bench of this Court in case of Sardarlal & Ors. vs. Umraolal Gupta, 1982 RLR 42 . He further submitted that if the impugned order would have been passed in favour of the petitioner in the appeal, that would have finally disposed of the proceedings of the appeal, and hence the revision against the impugned order was maintainable under Section 115 of CPC. 5. In order to appreciate the submissions made by the learned counsel Dr. He further submitted that if the impugned order would have been passed in favour of the petitioner in the appeal, that would have finally disposed of the proceedings of the appeal, and hence the revision against the impugned order was maintainable under Section 115 of CPC. 5. In order to appreciate the submissions made by the learned counsel Dr. Jain on the issue of maintainability of the Revision Petition, it would be necessary to reproduce Section 22 of the said Act, which reads as under :- “22. Appeal & Revision--((1) From every decree or order passed by a court under this Act, an appeal shall lie to the Court to which appeals ordinarily lie from original decrees and orders passed by such former Court) (2) No second appeal shall lie from any such decree or order; Provided that nothing herein contained shall affect the powers of the High Court (XXX) for Rajasthan in revision. (3) Any person aggrieved by an order of the (Magistrate) may, within fifteen days from the date of such order, appeal there from to (the District Magistrate or) such authority as the (State Government) may from time to time appoint in that behalf. (4) (XXX)” 6. It is not disputed that the scope and powers of the Court to be exercised in Revision having not been provided in Section 22 of the said Act, the provisions contained in Section 115 of CPC have to be followed. Now, on the issue of the maintainability of the revision petition under Section 115, a very pertinent observations have been made by the Apex Court in case of Shiv Shaktri Coop. Housing Society, Nagpur vs. Swaraj Developers and Ors, (2003) 6 SCC 659 . In para 32 of the said decision, it has been observed, as under:- “32. A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is 'yes' then the revision is maintainable. But on the contrary, if the answer is 'no' then the revision is not maintainable. Therefore, if the impugned order is interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. If the answer is 'yes' then the revision is maintainable. But on the contrary, if the answer is 'no' then the revision is not maintainable. Therefore, if the impugned order is interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under Section 115.” 7. In view of the above stated legal position, it is clear that in view of the proviso to Section 115, if the order in favour of the party applying for revision gives finality to the suit or other proceedings, the revision petition would be maintainable, and not otherwise. In the instant case, the impugned order passed by the Appellate Court is the dismissal of the application of the petitioner filed under Section 5 of the Limitation Act seeking condonation of delay occurred in filing the appeal. Hence, if such order is set aside as prayed for by the petitioner, it would not have disposed of the Appeal, but on condonation of the delay, the appeal would be revived, and treated as maintainable in the eye of law. It is also pertinent to note that though the Appellate Court had passed a separate order dismissing the appeal itself on the ground of having been filed beyond the prescribed period of limitation, vide the order dated 15/09/2011, on which date, the said application under Section 5 of the Limitation Act was also dismissed, the petitioner has not chosen to challenge the said order dismissing the Appeal. Even if it is presumed that dismissal of application for condonation of delay under Section 5 of the Limitation Act is the dismissal of the appeal itself, as observed by the Apex Court in case of Shyam Sunder Sarma vs. Pannalal Jaiswal & Ors., AIR 2005 Supreme Court 226, then also, the revision petition under Section 115 against such order would not be maintainable as the impugned order if passed in favour of the petitioner would not have disposed of the appeal proceedings. On the contrary, if the application under Section 5 of the Limitation Act was allowed, it would have made the appeal maintainable before the Appellate Court. On the contrary, if the application under Section 5 of the Limitation Act was allowed, it would have made the appeal maintainable before the Appellate Court. Since by setting aside the order under challenge, the appeal proceedings would not have been disposed of, the revision petition would not be maintainable in view of proviso to Section 115 of CPC. The Court therefore is of the opinion that the revision petition deserves to be dismissed on the ground of non-maintainability alone, however, let us consider the merits of the petition also. 8. So far as merits of the petition are concerned, it has been submitted by the learned counsel Dr. P.C. Jain for the petitioner that the Appellate Court should have condoned the delay occurred in filing the appeal, in the interest of justice. Placing reliance on the various decisions of Supreme Court, more particularly in case of Collector, Land Acquisition, Anantnag & Ors. vs. Mst. Katiji & Ors, (1987) 2 SCC 107 , in case of Trishala vs. M.V. Sundar Raj & Anr., (2010) 15 SCC 714, and in case of B.T. Purushothama Rai vs. K.G. Uthaya & Ors. & Lieutenant Colonel K.G. Uthaya vs. State of Karnataka & ors, (2011) 14 SCC 86, the learned counsel for the petitioner submits that the purpose of Limitation Act is not to destroy the rights, and that the Act is founded on the public policy fixing the life span for legal remedy for the general welfare. Dr. Jain also submitted that primary function of a court is to adjudicate between the parties, and to advance substantial justice. He also submitted that in the instant case, the counsel appearing for the petitioner in the Trial Court had submitted no instructions application, and the petitioner was never informed by the said counsel that the suit was being proceeded exparte against him, and therefore the petitioner could not remain present before the Trial Court or lead the evidence, which should be treated as the sufficient ground for condonation of delay occurred in filing the appeal against the decree passed in this suit. 9. There cannot be any disagreement with the propositions of law propounded by the Apex Court in the various decisions relied upon by the learned counsel Dr.P.C. Jain. 9. There cannot be any disagreement with the propositions of law propounded by the Apex Court in the various decisions relied upon by the learned counsel Dr.P.C. Jain. It is true that refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. It is also true that the object of providing legal remedy is to repair the damage caused as a result of legal injury, and that the Courts should not be technical to repair the legal injury caused to the party by not condoning the delay, which is sufficiently explained by the party. However, it is also axiomatic that condonation or non condonation of delay is a matter of discretion of the Court below, and if such discretion is exercised judiciously by the Court below considering the facts and circumstances of the case, the High Court should not interfere with such order. If the Court below finds that the explanation given by the party smacks of malafide or dilatory tactics, or where the substantial right in favour of one party has accrued on account of non-challenging of the order within the prescribed time limit, the Court would be perfectly justified in not condoning the delay. 10. So far as the facts of the present case are concerned, it clearly transpires that the petitioner was granted sufficient opportunities by the Trial Court to lead the evidence in the suit, however, he having failed to do so, and the counsel appearing for the petitioner having filed “no instructions” application, the Trial Court had proceeded further with the suit in absence of the petitioner. At this juncture, it is required to be noted that though the Trial Court has used the word “exparte” in the judgment and decree dated 11/01/2005, it was not the exparte proceedings. As a matter of fact, the word “exparte” appears in the provisions contained in Order IX CPC, and as per Rule 6 thereof, the Court could make an order that the suit be heard exparte, when it is proved that the defendant did not appear, though duly served in the suit. In the instant case, the petitioner having been duly served had also filed his appearance through his counsel. In the instant case, the petitioner having been duly served had also filed his appearance through his counsel. If the evidence is not led by the petitioner-defendant in the suit, it could not be said that the Court had proceeded exparte against the defendant. 11. The petitioner had also failed to prove that his counsel had not informed him about the dates fixed by the Trial Court for examining the witnesses. If the concerned counsel appearing for the petitioner had filed the “no instructions” application before the Trial Court, and if no action was taken against such counsel, it would be presumed that the petitioner had knowledge about the dates fixed by the Trial Court and he deliberately did not lead the evidence. As rightly observed by the Appellate Court, there is nothing on record to show that the petitioner had taken any action against the concerned counsel for allegedly not informing him before submitting the “no instructions” application. From the conduct of the petitioner, it clearly transpires that the petitioner anyhow wanted to delay the proceedings of the suit, and therefore, the bonafides of the petitioner were not clear. The Appellate Court having rightly dismissed the application of the petitioner filed under Section 5 of the Limitation Act, considering the overall facts and circumstances, this Court is not inclined to interfere with the impugned order passed by the Trial Court. 12. It is also pertinent to note that though the petitioner has prayed in the present Revision Petition to set aside the judgment and decree dated 11/01/2005 passed in the suit, such prayer could not be granted as the said decree was already challenged by the petitioner by way of appeal before the Appellate Court, and the said appeal is also dismissed by the Appellate Court on having been filed beyond the prescribed period of limitation. As stated hereinabove, the said order dismissing the Appeal has not been challenged in the instant Revision Petition. 13. In that view of the matter, the revision petition being sans merits, and even otherwise not maintainable in the eye of law deserves to be dismissed and is, accordingly, dismissed.