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2015 DIGILAW 596 (HP)

Bhawana Saini v. Vinod Kumar

2015-05-26

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. CMP(M) No. 225/2015. Heard. The applicants are permitted to be brought on record and substituted in place of Babu Ram, the original petitioner before the Court below. Registry is directed to make necessary corrections in the memo of parties in red ink. Application is disposed of. CMP(M) No. 224/2015. 2. The present application has been moved by the applicants for condoning delay in filing Civil Revision petition against Judgment dated 1.9.2011 rendered by learned Appellate Authority-I, Sirmaur at Nahan in Rent Appeal No. 04-RA/14 of 2011. 3. "Key facts" necessary for the adjudication of the present application are that predecessor-in-interest of the petitioners Shri. Babu Ram Saini instituted a Rent Petition No. 01/2 of 2007 before the Rent Controller-II Nahan, District Sirmaur, under Section 14 of Himachal Pradesh Urban Rent Control Act, 1987 against the respondent-tenant. According to the landlord, tenant was in arrears of rent. He has made additions and alterations without the consent of the landlord thereby diminishing value and utility of the shops. He has removed wall between shop Nos. 1 and 2 and opened a new door. He has kept Shop No. 3 un-utilized thus, seized to occupy the same for more than 12 months without a reasonable cause. Premises were also required for carrying out necessary repairs, which could not be carried out without evicting premises by tenants as outer wall is bulging out and could collapse. Tenant has been using second shop for playing 'Dara Satta' and he was also arrested by the police. This activity was causing nuisance in the neighbourhood. He also required shops for his own bona fide use and occupation as he was not keeping well and not in a position to run his shop situated at Bara Chowk Nahan. According to landlord, demised premises were let-out to the tenant @ Rs. 2000/- per month. 4. Petition was contested by the tenant. Tenant has denied that premises were rented out for Rs. 2,000/- per month. He took premises for running Halwai shop and now converted his business to shoe house with the consent of the landlord. He has tried to make payment to the landlord but he had not been taking payment of rent. He has admitted that he was in arrears of rent since January 2005 till the date of submitting reply @ Rs. He took premises for running Halwai shop and now converted his business to shoe house with the consent of the landlord. He has tried to make payment to the landlord but he had not been taking payment of rent. He has admitted that he was in arrears of rent since January 2005 till the date of submitting reply @ Rs. 800/- per month and was ready and willing to make payment. Factum of making any additions and alterations and removing of wall have been denied. Repairs would be carried out without the eviction. Plea of seizing to occupy the premises was also denied. Plea of demised premises being used for 'Dara and Satta' was specifically denied. Landlord filed rejoinder to the reply filed by tenant. Learned Rent Controller framed issues on 9.7.2008 and additional issues on 3.7.2009. Learned Rent Controller allowed the appeal only on account of non-payment of arrears of rent. Tenant was held in arrears of rent to the tune of Rs. 66,037/- i.e. Rs. 47,820/- for the period from 1.2.2005 to 31.12.2009 at the rate of Rs. 800/- per month and also Rs. 10,917/- for the period from January, 2010 to 30.9.2010. Tenant was directed to pay arrears of rent within a period of one month from the date of passing of order dated 28.9.2010. Landlord preferred an appeal against Order dated 28.9.2010. Learned Appellate Authority below dismissed the appeal on 1.9.2011. Hence, the petition. 5. There is delay of 1116 days in filing the present petition. 6. I have heard the learned counsel for the parties and also gone through the pleadings carefully. 7. Appeal was dismissed by the learned Appellate Authority on 1.9.2011. Landlord has died on 22.2.2013. Applicants have not placed on record any medical evidence that he was suffering from multifarious ailments as stated in the application. It is settled law that the Court's approach should be liberal in case delay is short but inordinate delay can not be condoned. The rights which have accrued to the other party can not be overlooked. There must be cogent and sufficient reasons to seek condonation of delay. Applicants have not spelt out specific attending family circumstances except that petition could not be filed due to outstation job commitments of her husband and other family responsibilities. Reasons assigned are vague. 8. The rights which have accrued to the other party can not be overlooked. There must be cogent and sufficient reasons to seek condonation of delay. Applicants have not spelt out specific attending family circumstances except that petition could not be filed due to outstation job commitments of her husband and other family responsibilities. Reasons assigned are vague. 8. Their Lordships of Hon'ble Supreme Court in Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai (2012) 5 SCC 157 have held that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the courts can never become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. Their Lordships have further held that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the former case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises. Their Lordships have held as under:- "20. In Vedabai v. Shantaram Baburao Patil, (2001) 9 SCC 106 , the Court observed that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the former case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises. 23. What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. 24. What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. 24. What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. 25. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest. 29. Unfortunately, the learned Single Judge of the High Court altogether ignored the gaping holes in the story concocted by the Corporation about misplacement of the papers and total absence of any explanation as to why nobody even bothered to file applications for issue of certified copies of judgment for more than 7 years. In our considered view, the cause shown by the Corporation for delayed filing of the appeals was, to say the least, wholly unsatisfactory and the reasons assigned by the learned Single Judge for condoning more than 7 years delay cannot but be treated as poor apology for the exercise of discretion by the Court under Section 5 of the Limitation Act." 9. Accordingly, there is no merit in the application and the same is dismissed. CMP No. 3075/2015. 10. In view the dismissal of application for condonation of delay, the present application is dismissed. Civil Revision No. 27/2015 11. In view of the dismissal of the applications for condonation of delay and leave to file petition, the revision is also dismissed. Other Pending applications are also disposed of.