Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 4157 (MAD)

S. Kantilal Prakash Chand Jain v. M. Suvee Raja

2013-12-10

P.R.SHIVAKUMAR

body2013
JUDGMENT 1. This revision petition has been filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 against the order of the Rent Control Appellate Authority dated 14.09.2013 made in M.P.No.523 of 2003 in unnumbered RCA.(SR).No.11150 of 2013. 2. The tenant, who figured as respondent in the eviction petition namely RCOP.No.1000 of 2007, is the revision petitioner. The jural relationship of landlord and tenant between the revision petitioner and the respondent remains an admitted one and not a disputed one. The said RCOP came to be filed by the respondent herein (landlord) for eviction on the ground of bonafide requirement for own occupation of the landlord. The revision petitioner (tenant), who was served with notice, after entering appearance and filing a counter, failed to cross- examine the respondent herein who was examined in chief as PW.1. Despite the fact that several adjournments were given to the revision petitioner to get on with enquiry by cross examining PW.1, the revision petitioner failed to do so and since he was absent and his counsel was also absent on 13.08.2008, the Rent Controller set him ex parte and proceeded with ex parte enquiry and passed an order of eviction directing the revision petitioner to vacate and hand over possession of the petition property within two months. 3. Thereafter the revision petitioner chose to file a petition M.P.No.346 of 2008 in RCOP.No.1000 of 2007 to set aside the ex parte order of eviction. The learned Rent Controller showing leniency allowed the said petition imposing two conditions, which are as follows:- (1) the revision petitioner should pay Rs.500/- as costs to the respondent; and (2) the revision petitioner should cross examine PW.1 then and there itself. Accordingly cost was paid and the same was recorded. Even after, the learned Rent Controller granted liberal time for complying with the second condition, namely getting ready to cross examine PW.1, the revision petitioner was not prepared to do it, which resulted in the dismissal of M.P.No.346 of 2008 by order dated 04.08.2009. The said order was sought to be challenged by the revision petitioner by preferring an appeal in unnumbered Rent Control Appeal bearing RCA.(SR).No.11150 of 2013. The said unnumbered Rent Control Appeal came to be filed with a delay of 1454 days. The said order was sought to be challenged by the revision petitioner by preferring an appeal in unnumbered Rent Control Appeal bearing RCA.(SR).No.11150 of 2013. The said unnumbered Rent Control Appeal came to be filed with a delay of 1454 days. Hence a petition under Section 5 of the Limitation Act was filed before the Rent Control Appellate Authority in M.P.No.523 of 2013 in RCA.(SR).No.11150 of 2013. 4. The learned Rent Control Appellate Authority, after hearing, dismissed the said Miscellaneous Petition holding that the inordinate delay was not properly explained and the revision petitioner did not show any reasonable cause for not approaching the appellate authority in time. The said order came to be passed on 14.09.2013. Aggrieved by the same and challenging the said order dated 14.09.2013, the revision petitioner (tenant) has approached this Court with the present revision petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. 5. Since the respondent filed a caveat, notice was given to the respondent and the respondent is represented by a counsel. The revision has been filed against the order dismissing the Miscellaneous Petition seeking condonation of delay in filing the appeal. This Court is of the considered view that the same can be disposed of at the stage of admission itself. Accordingly the arguments advanced by Mr. K.P. Ashok, learned counsel for the revision petitioner and Mr. G. Jehanathan, learned counsel for the respondent are heard. The materials produced by the parties in the form of typed set of papers are also perused. 6. The learned counsel for the revision petitioner has argued vehemently that the learned Rent Control Appellate Authority failed to properly consider the reason assigned by the revision petitioner for the delay caused in preferring the appeal against the order of the Rent Controller dated 04.08.2009 made in M.P.No.346 of 2008. According to the submissions made by the learned counsel for the revision petitioner, the prosecution of a parallel proceedings in RCA.No.172 of 2010 filed against the original ex parte order of eviction dated 13.08.2008 would amount to a reasonable cause for not preferring the appeal against the order passed in M.P.No.346 of 2008 in time. 7. According to the submissions made by the learned counsel for the revision petitioner, the prosecution of a parallel proceedings in RCA.No.172 of 2010 filed against the original ex parte order of eviction dated 13.08.2008 would amount to a reasonable cause for not preferring the appeal against the order passed in M.P.No.346 of 2008 in time. 7. On the contrary, the learned counsel for the respondent would submit that the very approach made by the tenant right from the beginning will indicate his inclination to drag on the case as long as possible; that even otherwise the revision petitioner had not come forward with acceptable reasons for the inordinate delay of 1454 days in preferring the appeal; that the prosecution of parallel remedy of appeal filed against the original ex parte order of eviction cannot be a reasonable ground for the inordinate delay caused in filing the appeal against the order dismissing the petition filed under Order IX Rule 13 CPC to set aside the ex parte order; that the revision petitioner who chose to initiate the parallel proceedings in RCA.No.172 of 2010 after the dismissal of order IX Rule 13 CPC Petition cannot be allowed to cite the pendency of the said appeal as a ground for not preferring the appeal in time against the order passed in the petition filed under Order IX Rule 13 CPC and that in any event, the very fact that the revision petitioner, having chosen to file an appeal against the original order of eviction cannot maintain simultaneously an application filed under Order IX Rule 13 CPC unless such an appeal is withdrawn before the filing of the petition under Order IX Rule 13 CPC. 8. In support of his contention, besides drawing the attention of this Court to the explanation provided to Order IX Rule 13(1) CPC, the learned counsel for the respondent relied on the judgment of the Hon'ble Supreme Court in "Bhanu Kumar Jain ..vs.. Archana Kumar and another" reported in (2005) 1 SCC 787 . The explanation provided to Rule 13(1) under Order IX CPC makes it clear that the right to seek an ex parte decree set aside will be lost, if the judgment debtor unsuccessfully challenged the ex parte decree by way of an appeal, unless such dismissal of the appeal was based on withdrawal of the appeal. The explanation provided to Rule 13(1) under Order IX CPC makes it clear that the right to seek an ex parte decree set aside will be lost, if the judgment debtor unsuccessfully challenged the ex parte decree by way of an appeal, unless such dismissal of the appeal was based on withdrawal of the appeal. The said principle embodied in the said provision has been elucidated by the Hon'ble Supreme Court in the above said judgment cited by the learned counsel for the respondent. Their Lordships of the Supreme Court have held that though the remedy of seeking ex parte decree to be set aside and remedy of appeal could be simultaneously exercised, but once the appeal is dismissed on any other ground except on the ground that the same is withdrawn, such dismissal of the appeal will make the Order IX Rule 13 CPC application not maintainable. It goes without saying that such a dismissal of the appeal against the decree will make such an application under Order IX Rule 13 filed even before the filing of the appeal infructuous from the date of dismissal of the appeal. 9. In this case, admittedly the revision petitioner filed an appeal against the ex parte order of eviction dated 13.08.2008 passed in RCOP.No.1000 of 2007. The said Rent Control Appeal came to be filed only after the dismissal of the petition filed under Order IX Rule 13 CPC. The said appeal in RCA.No.172 of 2010 came to be dismissed on merit, and not as withdrawn, by a judgment and decree dated 25.06.2013. As against the said decree in the Rent Control Appeal, the revision petitioner is said to have filed a revision, which is yet to be numbered. However the fact remains that the Rent Control Appeal filed challenging the original order of eviction (ex parte) came to be dismissed on merit. As rightly contended by the learned counsel for the respondent, the dismissal of RCA.No.172 of 2010 has made the Order IX Rule 13 CPC petition itself redundant and infructuous. Hence the proposed appeal in RCA.(SR).11150 of 2013 also should be taken as one not maintainable. As rightly contended by the learned counsel for the respondent, the dismissal of RCA.No.172 of 2010 has made the Order IX Rule 13 CPC petition itself redundant and infructuous. Hence the proposed appeal in RCA.(SR).11150 of 2013 also should be taken as one not maintainable. Hence, there is no defect or infirmity in the order of the Rent Control Appellate Authority dismissing M.P.No.523 of 2013 filed for condoning the delay of 1454 days in filing the appeal against the order dated 04.08.2009 passed in M.P.No.346 of 2008 on the file of the Rent Controller. 10. Apart from the question of maintainability, even if it is assumed that the appeal is maintainable, the very fact that the revision petitioner had chosen to cause delay at every lap and prosecute parallel proceedings only in order to harass the landlord (respondent) will make it clear that the inordinate delay caused in preferring the appeal cannot be condoned as the prosecution of the parallel proceedings voluntarily by the revision petitioner cannot be taken as a valid reason for not filing an appeal against the impugned order dated 04.08.2009 passed in M.P.No.346 of 2008 in RCOP.No.1000 of 2007. There is lack of bonafide on the part of the revision petitioner and the learned Rent Control Appellate Authority cannot be found fault with for dismissing the petition M.P.No.523 of 2013 in RCA.(SR).No.11150 of 2013 to condone the delay in preferring the Rent Control Appeal. There is no merit in the revision and the revision deserves to be dismissed. 11. In the result, the Civil Revision Petition is dismissed. Consequently, connected Miscellaneous Petition is closed. There shall be no order as to costs.