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2014 DIGILAW 2056 (RAJ)

Manmohan Corporation v. Sheela Sharma

2014-12-09

MOHAMMAD RAFIQ

body2014
Hon'ble RAFIQ, J.—This Writ Petition has been filed by Shri Manmohan Corporation, a tenant in the premise of the respondent. The respondent filed a petition under Section 15(1) of the Rajasthan Rent Control Act, 2001 for eviction of the petitioner on the ground of reasonable and bona fide necessity of her son Dr. Raman Sharma and his wife Dr. Rajni Sharma. The Tribunal by Order dated 19.8.2010 allowed the petition and directed eviction of the petitioner. Aggrieved thereby, petitioner filed an appeal before the Appellate Rent Tribunal. During pendency of the appeal, Dr. Ram Sharma S/o respondent-applicant Dr. Sheela Sharma, filed in application under Order 22 Rule 4(3) read with Rule 11 of the Code of Civil Procedure on 10.10.2011 contending that the respondent has executed a Will on 22.11.2008 in favour of Dr. Raman Sharma and all right, title and interest is being transferred in favour of Dr. Raman Sharma. Since the application for impleadment of legal heirs has not been filed by the appellant in appeal, the appeal becomes infructuous. The petitioner filed an application under Order 22 Rule 4 for substitution of original plaintiff by his legal heirs and another application under Order 22 Rule 9 of the C.P.C. for setting 5 of the Limitation Act for condonation of delay. The learned Appellate Rent Tribunal, however, dismissed the application as having become abated. Hence this Writ Petition. 2. Shri M.M. Rajan, learned Senior Advocate appearing for petitioner, argued that even though original landlady respondent Dr. Sheela Sharma expired on 14.11.2010 in California in the United State of America (USA), but the fact thereabout came to the knowledge of the petitioner only on 10.10.2011 when her son Dr. Ram Sharma moved the application. According to Order 22 Rule 10 of the C.P.C. Dr. Raman Sharma or the Counsel for the original respondent were duty bound to inform the petitioner/applicant of this fact. The petitioner had no knowledge of the death of Smt. Sheela Sharma and could not have any knowledge as she was not residing in India and had died in California (USA) Finding rendered by learned Rent Tribunal that the application has been filed with delay of more than one year is wholly perverse. The limitation for filing application under Order 22 Rule 4 of the CPC shall start only from 10.10.2011. The period of limitation of 90 days counting from that date would expire on 8.1.2012. The limitation for filing application under Order 22 Rule 4 of the CPC shall start only from 10.10.2011. The period of limitation of 90 days counting from that date would expire on 8.1.2012. Since the appeal was listed on 2.12.2011, on which date 28.1.2012 was given as the next date, the respondent could not file application in time. It was also because from 10.1.2012 to 27.1.2012 the work was suspended by the Advocates and the application was filed on next date of hearing on 28.1.2012. Learned Counsel submitted that the application was delayed by 19 days, of which later period of 17 days was when the lawyers were absenting from work therefore this was good and sufficient reason for setting aside for abatement and condonation of delay. Learned Senior Advocate, in support of his argument, has relied on judgment of the Supreme Court in Esha Bhattarcharjee vs. Managing Committee of Raghunathpur Nafar Academy & Ors., (2013) 12 SCC 649 . 3. Shri M.M. Rajan, learned Senior Advocate appearing for petitioner, has submitted that the Section 21(3) of the Rajasthan Rent Control Act, inter alia provides that the Rent Tribunal and the Appellate Rent Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908, but shall be guided by the principle of natural justice. The provision further stipulates that subject to other provisions of this Act or the Rules made thereunder, the Tribunal shall have powers to regular their own procedure for the purpose of discharging their functions under this Act. In Clause (g) of Section 21(3) thereof, power has been conferred on the Tribunal for bringing legal representatives on record. The overriding consideration of sub-sec. (3) of Section 21 of the Act of the principle of natural justice would nonetheless apply. Therefore, when Dr. Raman Sharma, the sole representative, who moved the application after death of his mother, dismissal of the appeal as abated, despite his presence has occasioned failure of justice. 4. For contra, Shri Manish Sharma, learned Counsel for respondent has opposed Writ Petition and submitted that the Appellate Rent Tribunal has rightly rejected the applications for setting aside abatement and condonation of delay because the reasons given by the petitioner therein did not constitute sufficient cause and were not bona-fide. It was factually incorrect that the application could not be filed in time because of the strike of the lawyers. It was factually incorrect that the application could not be filed in time because of the strike of the lawyers. Period of limitation had expired, even as per the petitioner, on 8.1.2012, whereas the lawyers started boycotting the Court on 11.1.2012, the assertion of the petitioner is therefore factually incorrect. Learned Counsel for the respondent has relied on judgment of the Supreme Court in Balwant Singh vs. Jagdish Singh & Ors., (2010) 8 SCC 685 , and argued that the Supreme Court in that case has held that expression "sufficient cause" implies presence of legal and adequate reasons. There is no straitjacket formula uniformly applicable to all cases. Test of Judge whether or not a cause is sufficient is to see whether it could have been avoided by the party by exercise of due care and attention. Learned Counsel also relied on Division Bench judgment of this Court in Hari Ram Sharma vs. Rajasthan State Electricity Board & Anr., where in the matter was dismissed in default as the Counsel did not appear in Court because lawyers had decided to boycott the Courts and observed strike and in that situation the Court held that there was no sufficient cause for the absence of the Counsel and denied to restore the case. 5. I have given my careful consideration to rival submissions, perused the material on record and gone through the cited precedents. 6. Admittedly, the fact about death of original non-applicant was brought to the notice of the Court and thereby to notice to the petitioner, by none other than her only son Dr. Raman Sharma on 10.2.2012. The finding of the Appellate Rent Tribunal in Para 6 of the impugned order that the application has been filed with delay of nearly 15 months and that no explanation has been given for such enormous delay, is wholly perverse. In fact, the period should commence from the date of knowledge. Legislature has purposely by amendment introduced sub-rule 10(A) in Order 22 of the C.P.C., has cast a duty on the Advocate of opposite party to inform the Court about the death of a party, and the Court shall there upon give notice of such death to the other party. Such period therefore cannot be taken to period of delay attributable to the appellant writ petitioner. Such period therefore cannot be taken to period of delay attributable to the appellant writ petitioner. The period of 90 days for filing application under Order 22 Rule 4 of the CPC expired on 8.1.2012 and therefore it is from that date only that the petitioner could be required to explain the delay. In later part of Para 6 of the impugned order the Appellate Rent Tribunal has also noted that the petitioner was required to explain the delay for the period from 9.1.2012 to 27.1.2012. It was this delay of 19 days which the petitioner was thus required to explain. What is to be therefore seen is whether explanation given by petitioner is bona-fide. Not only it has to be seen whether explanation is bona-fide but also whether it constitutes sufficient cause in the meaning of Section 5 of the Limitation Act. 7. Order 22 Rule 10(A) of the C.P.C. provides that wherever a Pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall there upon given notice of such death to the other party, and, for this purpose, the contract between the Pleader and the deceased party shall be deemed to subsist. The Division Bench judgment relied on by the respondent in the case was arising out the case for restoration of appeal and therefore it can have no application to the facts of the present case. The question herein is whether the appeal is dismissed having abated and whether the Appellate Rent Tribunal was justified in rejecting the application of the tenant-petitioner for bringing the legal representatives on record. 8. The Supreme Court in Ram Nath Sao @ Ram Nath Sahu & Ors. vs. Gobardhan Sao & Ors., AIR 2002 SC 1201 , held that the expression `sufficient cause' within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to party. In the context of Order 22 Rule 9 and Section 5 of the Limitation Act, their Lordships held that there was nothing to show that delay was mala fide, international or any dilatory tractics was adopted. In the context of Order 22 Rule 9 and Section 5 of the Limitation Act, their Lordships held that there was nothing to show that delay was mala fide, international or any dilatory tractics was adopted. It was held that the Courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal and exception, more so when no negligence or inaction or want of bonafide can be imputed to the defaulting party. While considering the matter, the Courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right ha accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis ternubates either by default or inaction and defeating valuable right of such a party to have the decision on merit. 9. In K. Rudrappa vs. Shivappa, (2004) 12 SCC 253 , the Supreme Court has commented for not taking a hyper technical view to reject the application for substitution of legal heirs and setting aside the abatement. In that case, the legal heirs of the deceased-appellant made an application for bringing them on record. The application was rejected on the ground that there was no prayer for setting aside abatment of appeal nor for condonation of delay. The appellants immedicately filed separate application which was also rejected and the order as affirmed by the High Court. It was held by their Lordships that hyper technical view ought not to have been taken by the District Court in rejecting the application particularly when separate applications for abatment and condonation of delay were also filed. 10. The appellants immedicately filed separate application which was also rejected and the order as affirmed by the High Court. It was held by their Lordships that hyper technical view ought not to have been taken by the District Court in rejecting the application particularly when separate applications for abatment and condonation of delay were also filed. 10. In Perumon Bhagvathy Devaswom vs. Bhargavi Amma, (2008) 8 SCC 321 , the Supreme Court held that the expression `sufficient cause' in Section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tractics, want of bona fides, deliberate inaction or negligence on the part of the appellant. 11. In Balwant Singh vs. Jagdish Singh, (2010) 8 SCC 685 , their Lordships of the Supreme Court observed that the sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. Test is whether or not a cause is sufficient to see whether it would have been avoided by the party by the exercise of due care and attention. The Supreme Court held that even if the term `sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of `reasonableness'. The explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the application. 12. The Supreme Court in Esha Bhattacharjee (supra), after revisiting its many previous judgments on the subject, has broadly culled out following principles to be kept in view while deciding the application for condonation of delay- (i) There should be a liberal, pragmatic, justice oriented, non-pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact situation. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact situation. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the Counsel or litigant is to be taken note of. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such a litigation. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. (xiii) The state or a public body or an entity representing a collective cause should be given some acceptable latitude. (xiv) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the Courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. (xv) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. (xvi) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. (xvii) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters. 13. Learned Appellate Rent Tribunal ought to have thus considered the matter from the perspective whether the prayer of the petitioner for setting aside abatement and for bringing on record the legal representatives of the respondent for setting aside the abatement and condonation of delay lack bona-fide or was reflecting rampant negligence or inaction on the part of the appellant or that it was no enormously delayed that it has given rise to a right in favour of the opposite party. The Appellate Rent Tribunal also ought to have considered that the remedy for the Rent Tribunal under the Act summary in nature, where only some of the provisions of the Code of Civil Procedure have been applied including about bringing legal representatives on record but in a dilute form by observing that such Tribunals shall not be bound by the procedure laid down by the C.P.C. and shall be guided by the principle of natural justice and would have power to regulate their own procedure for the purpose of discharging their functions under the Act. This aspect also ought to have been therefore kept in view by the Tribunal while considering whether the quality of explanation submitted by the petitioner constituted sufficient cause or not. 14. Moreover and most importantly, the Appellate Rent Tribunal should not have lost sight of the fact that Dr. Raman Kumar himself had submitted application under Order 22 Rule 9 of the CPC and that was first time when the fact about the death of original applicant Smt. Sheela Sharma was brought on record. The appellant in any case could not have come to know about the death because as per own showing of the respondent, she was residing in California in the USA and died there. Dr. Raman Sharma was the only legal representative of Sheela Sharma and when he himself has submitted application before the Tribunal and thereby joined the proceedings, the Tribunal should not have taken hyper technical view of the matter by refusing to bring him on record when an application to that effect was submitted by the petitioner under Order 22 Rule 4 of the C.P.C. alongwith an application under Order 22 Rule 9 C.P.C. and application under Section 5 of the Limitation Act for condonation of delay. The delay in any case was only of 19 days. The fact that on first two dates of these 19 days, there was no boycott of proceedings by the lawyers would not be a reason to discard the reality that even in later period of 17 days, according to the petitioner, he had contracted his lawyer and had requested him to make appropriate application and that owing to the fact of boycott of the proceedings by the lawyers, the process further got delayed. Eventually, even if the lawyer had not acted diligently, the actual sufferer in any case is litigent. The ends of justice, in the considered opinion of this Court, would meet only if the matter is decided on merits rather than being dismissed for the technicalities of law. However, respondents may be compensated by award of reasonable costs for inconvenience caused to him by reason of such marginal delay. 15. In view of above discussion, Writ Petition deserves to succeed and is hereby allowed, on payment of costs of Rs. 5,000/- to be paid before the Appellant Rent Tribunal. However, respondents may be compensated by award of reasonable costs for inconvenience caused to him by reason of such marginal delay. 15. In view of above discussion, Writ Petition deserves to succeed and is hereby allowed, on payment of costs of Rs. 5,000/- to be paid before the Appellant Rent Tribunal. The Appellant Rent Tribunal is directed to decide the appeal within a period of three months from the date a copy of this order is produced before it. This is disposes of the stay application.