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2015 DIGILAW 1366 (RAJ)

Girdharilal Sharma v. Motilal

2015-07-22

MOHAMMAD RAFIQ

body2015
JUDGMENT : These writ petitions have been filed challenging the orders dated 4.5.2013 by which the applications for bringing on record the L.Rs. of sole plaintiff on record along with application for condonation of delay are rejected and the petition of the landlord filed under Section 6 for revision of rent and under Section 9 & 10 of the Rent Control Act for eviction of tenant on the ground of bonafide reasonable necessity have been dismissed as having been abated. The learned trial court has rejected the eviction petition as abated on the premise that although the petitioners filed application for bringing L.Rs. on record and also submitted an application for condonation of delay of 56 days, but the learned Rent Tribunal held that the landlord died on 15.6.2012 and the application has been filed on 7.1.2013 after 206 days thereafter on 7.1.2013. In the application seeking condonation of delay, it has been stated that the sons of landlord Rajesh Kumar Sharma and Ashok Kumar Sharma are employed with military engineering service and are posted at the border. His wife Smt. Leelavati was residing at Alwar. The application has been filed through power of attorney holder Gaurav Sharma, who is also resident of Alwar. No specific reason has been given in the application seeking condonation of delay why leave was not granted to his sons and where were they during the intervening period. Therefore, the applications were rejected and the petition was eviction was dismissed as having been abated. Shri Ashish Sharma, learned counsel for the petitioners submits that the basic fact, which were required for setting aside the abatement were already pleaded in the two applications, which the petitioner filed one for bringing L.Rs. on record and another for condonation of delay, and therefore, it would suffice even for setting aside abatement. Learned counsel in support of his arguments relied on the judgement of Supreme Court in Mithailal Dalsangar Singh vs. Annabai Devram Kini, 2003 (1) SCC 691 and division bench judgement of this Court in Brij Ballabh Sharma vs. Pushpa Parihar, 2007 (5) RCR (Civ) 273. Shri Mohit Gupta, learned counsel for the respondent opposed the writ petition and submitted that the application for setting aside the abatement has to be separately filed and even if the prayer for setting aside abatement is considered on the basis of a common application for bringing the L.Rs. Shri Mohit Gupta, learned counsel for the respondent opposed the writ petition and submitted that the application for setting aside the abatement has to be separately filed and even if the prayer for setting aside abatement is considered on the basis of a common application for bringing the L.Rs. on record or for condonation of delay, such application should contain, specific prayer to that effect. Learned counsel for the respondent has relied on the judgement in Dev Lal vs. Faili, AIR (38) 1951 Madhya Bharat 156, Durgalal vs. Asharafilal (deceased) & Ors., AIR 1973 Rajasthan 332 & Vidhya Prakash vs. Ranidan, 1987 RLW 492. This issue can no longer be entertained in view of what has been decided by the Supreme Court in Mithailal Dalsangar Singh, supra. The Supreme Court in that case held that inasmuch as abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside abatement. So also a prayer for setting aside abatement as regard one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suits in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. Their Lordships further held that a prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Their Lordships further held that a prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for. The Supreme Court further held that the courts have to adopt a justice oriented approach dictated by the upper most consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, dis-entitled himself from seeking the indulgence of the court. In the present case, if the period of delay is considered after excluding the initial period of 90 days for filing the application for substitution of L.Rs. and 60 days for setting aside the abatement is considered, there remains delay of only 56 days. The reason that is given in the application is that deceased landlord had only two sons Rajesh and Ashok, both of whom were employed with military engineering service of the Indian Army and were posted at different borders. His widow Lilavati was staying at Alwar and it was through him that power of attorney was executed in favour of Gaurav Sharma and through him application was filed. At this stage, one more argument which the learned counsel for the respondent sought to bring to the notice of this Court was that the application for bringing L.Rs. on record and condonation of delay was filed on 7.1.2013, whereas the date of power of attorney is dated 7.2.2013. However, learned counsel for the petitioner submits that it was attested copy of the original. The original document is dated 7.1.2013. Even then it should be considered on the basis of the facts, which are pleaded in the application for bringing L.Rs. on record as held by the Supreme Court that the abatement results in denial of hearing on the merits and provision of abatement has to be construed strictly, but prayer for setting aside the abatement and dismissal consequent upon an abatement, have to be considered liberally. The Tribunal has not examined the matter from this perspective. The matter ought to receive its consideration. The Tribunal has not examined the matter from this perspective. The matter ought to receive its consideration. The courts have to adopt “a justice oriented approach” dictated by the upper most consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits. The observations of the Supreme Court in para 8 and 9 of the judgement in Mithailal Dalsangar Singh, supra are reproduced hereunder: “8.In as much as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside abatement. So also a prayer for setting aside abatement as regard one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not called for. 9. The courts have to adopt a justice oriented approach dictated by the upper most consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, dis entitled himself from seeking the indulgence of the court. 9. The courts have to adopt a justice oriented approach dictated by the upper most consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, dis entitled himself from seeking the indulgence of the court. The opinion of the trial Judge allowing a prayer for setting aside abatement and his finding on the question of availability of 'sufficient cause' within the meaning of sub - rule(l) of Rule (9) of Order 22 and of Section 5 of the Indian Limitation Act, 1963 deserves to be given weight, and once arrived at would not normally be interfered with by superior jurisdiction.” The judgements in Dev Lal, supra, Durgalal, supra and Vidhya Prakash, supra cited by the learned counsel for the respondents cannot be applied in view of the judgement of Supreme Court in Mithailal Dalsangar Singh, supra. Both the impugned orders dated 4.5.2013 are therefore set aside. The writ petitions succeed and are accordingly allowed subject to payment of cost of Rs.4,000 (Rs.2,000 in each case) by the petitioners to the respondent before the Rent Tribunal. The Rent Tribunal may thereafter proceed to decide the matter on merits.