Spl Govt Pleader vs Abdul Ravoof on 7 August, 2013

[Cites 20, Cited by 0]

Madras High Court

Spl Govt Pleader vs Abdul Ravoof on 7 August, 2013

The Petitioner /State of Tamil Nadu, rep.by District Collector of Madras cum- Accommodation Controller, Chennai 1 has preferred the present miscellaneous petition before this Court praying to condone the delay of 818 days in filing the Review Application.

2. The Learned Special Government Pleader (AS) for the Petitioner submits that by the provisions of the Tamil Nadu Building (Lease and Rent Control) Act, 1960, (T N XVIII of 1960), the premises No.136(Upstairs portion), Anna Salai, Chennai 600 002, was taken from the Respondent as per proceedings dated 01.01.1947 fixing the rent at the rate of Rs.200/- per month. The premises was allotted to the Senior Superintendent of Post Office, Anna Salai, Chennai 2. The rent has been paid regularly and there was no default in payment of rent.

3. According to the Petitioner, the Respondent / Landlord filed R.C.O.P.No.2307 of 2001 dated 29.04.1991 for fixation of fair rent under section 4 of the Tamil Nadu Building (Lease and Rent Control) Act, 1960, (T N XVIII of 1960). It is the stand of the Petitioner that the Learned Rent Controller fixed the quantum of rent at Rs.1114/- per month in the aforesaid R.C.O.P proceedings by directing the Petitioner to pay the fair rent from the inception of tenancy subject to law of limitation.

4.Being dissatisfied the order of the Learned Rent Controller passed in R.C.O.P.No.2307 of 2001, the Petitioner filed R.C.A.No.851 of 1983 and the fair rent was reduced by the Appellate Court by determining the fair rent at Rs.1111/- per month. Also that the Petitioner paid the fair rent regularly fixed by the Appellate Court without any default till the date of vacating the premises in September, 1991.

5. That apart, the Learned Special Government Pleader for the Petitioner brings it to the notice of this Court that the Respondent filed a suit in O.S.No.8976 of 1996 on the file of the City Civil Court, Madras claiming the fair rent from the inception of the tenancy viz., from 01.01.1947 to 29.04.1981 at the rate of Rs.1111/- by deducting the contract rent at the rate of Rs.200/- per month.

6. A plea is taken on behalf of the Petitioner that as per the provisions of the Section 3(5) of the Tamil Nadu Building (Lease and Rent Control) Act, 1960, (T N XVIII of 1960), the aforesaid rent has to be paid by the Petitioner from the inception of tenancy. By the judgment of this Court, it was held that the fair rent was to be paid from the inception of tenancy subject to law of limitation.

7. The Learned Special Government Pleader for the Petitioner submits that the suit was resisted by the Petitioner that there was no proper notice under Section 80 C.P.C and also that, fair rent need not be paid from the inception of tenancy viz. 01.01.1947. Also that, by mistake in the written statement, it was mentioned that the fair rent was to be paid for 156 months instead of 36 months, which was calculated from 29.04.1978 to 29.04.1981 (i.e) from the date of filing of the Petition to back period of 3 years that period viz., from 29.04.1978 to 29.04.1981 a sum of Rs.32,796/- was paid towards arrears of rent in E.P proceedings on the file of the City Civil Court, Chennai. The Learned Sub-Judge decreed the suit for 156 months which was beyond the period of limitation. As such, the Learned Sub-Judge could not pass a decree for time barred period.

8. Apart from the above, the Learned Special Government Pleader for the Petitioner contends that the Respondent filed a suit for recovery of arrears of rent on the basis of the fair rent from 01.01.1947 to 29.04.1981 being that period mentioned in plaint.

9. Further the Learned Sub-Judge decreed the suit from 29.04.1978 to 29.04.1991. The suit period was not covered from 30.04.1981 to 29.04.1991 for which period the Court decreed the suit. The Petitioner vacated the premises during 1991 itself and till that period the difference of fair rent was paid and the sum was acknowledged by the Respondent.

10. The Learned Special Government Pleader submits that the Petitioner paid 36 months rent from 29.04.1978 to 29.04.1981 covering the period of arrears of rent from the date of filing of the Petition to back period. In any event, the Petitioner was not liable to pay the rent beyond 36 months for which the appeal was filed before this Court.

11. The Respondent filed E.P.No.1217 of 1999 for attachment of movables of the Petitioners. As such, it is pleaded on behalf of the petitioner that this Court may be pleased to review the order dated 23.06.2010 made in A.S.No.7 of 2001 for which the Petitioner filed Review Application Sr.No.91035 of 2012.

12. It is the contention of the Learned Special Government Pleader for the Petitioner that in filing the Review Application before this Court, there has occasioned a delay of 818 days and that the reason ascribed on behalf of the Petitioner is that since the Learned Counsel who appeared in first appeal viz., A.S.No.7 of 2001 had not filed copy application and only on 08.10.2012, the Petitioner filed copy application and the order copy was made ready on 09.10.2012. Indeed, the copy of the order was received on 10.10.2012. Immediately, on 18.10.2012, the Petitioner filed the present Review Application. Therefore, the delay that has taken place in filing of the copy application as stated supra, is neither wilful nor wanton, but due to the aforesaid bonafide reason. As such, the Learned Special Government Pleader for the Petitioner prays for condoning the delay in question by this Court in the interest of justice. Also, it is averred on behalf of the Petitioner that if the delay in question is not condoned, the petitioner will be put to irreparable loss and hardship. Per contra, no prejudice would be caused to the Respondent.

13. The Learned Special Government Pleader for the Petitioner cites the decision of the Hon'ble Supreme Court in Uma Nath Pandey & Ors. V. State of U.P. & Anr. (AIR 2009 Supreme Court 2375 and at page 2376 & 2377) whereby and whereunder in paragraphs No.7 & 8, it is observed as follows:-

7. The expressions natural justice and legal justice do not present a water -tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigants' defence.

8. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the Magna Carta. The classic exposition of Sir Edward Coke of natural justice requires to 'vocate, interrogate and adjudicate. In the celebrated case of Cooper v. Wandsworth Board of Works ((1863) 143 ER 414), the principle was thus stated:

Even God did not pass a sentence upon Adam, before he was called upon to make his defence. Adam says God, where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat.

14. He also relies on the decision of this Court in M.N.Abdul Wahab V. Salem City Municipality Corporation, rep.by its Commissioner, Corporation Office, Fort Main Road, Salem (2006 4 L.W. 230 and at page 233 & 234), wherein in paragraphs No.7 & 8, it is observed and held as under:-

In (2005) 3 SCC 752, State of Nagaland Vs.Lipok Ao and others, the Apex Court considering the delay of the State in filing an appeal, in paragraph 5 has held as follows:

It is axiomatic that decisions are taken by officers / agencies proverbially at a slow pace and encumbered process of pushing the files form table to table and keeping it on the table for considerable time causing delay intentional or otherwise is a routine. Considerable delay of procedural redtape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression sufficient cause should, therefore, be considered with pragmatism in a justice oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice oriented process. The court decides the matters on merit unless the case is hopelessly without merit.

8. In the case on road, the Lower Court apart from other reasons has considered that the administrative delay caused due to the missing of the files and the negligence of the subordinates should not be put against the Corporation. Further, the property demand register has already been changed to the name of Sczha Velalar Samugam Trust. Even the petitioner has admitted in his plaint that there are other suits pending in the Lower Courts regarding the ownership of the building. The delay in filing the petition cannot be termed as dilatory tactics by the Corporation. Certain amount of latitude is permissible in the case of government or a local body, which is working through its officers or servants. The Lower Court has exercised its discretion properly and has adequately compensated the petitioner by awarding a cost of Rs.1,500/- to be paid to him.

In view of the above, the order of the Lower Court does not require any interference. Therefore, the Civil Revision Petition stands dismissed. No costs. Consequently, the connected C.M.P.No.15375 of 2005 is closed.

15. Conversely, it is the submission of the Learned Counsel for the Respondent that M.P.No.2 of 2013 filed by the Petitioner to condone the delay of 818 days in filing the Review Application is wholly unsustainable in law.

16. The Learned Counsel for the Respondent contends that in the condone delay miscellaneous petition M.P.No.2 of 2013 has not been explained on the part of the Petitioner and as per Art.124 of the Limitation Act 'for a review of judgment by the Court other than the Supreme Court the period of limitation prescribed is 30 days from the date of decree and that the present review application has not been filed within 30 days from the date of decree.

17. Yet another plea advanced on behalf of the Respondent is that Art.124 of the Limitation Act, 1963 provides that an application for review of judgment by a court other than the Supreme Court and must be made within 30 days from the date of the decree or order and not from the date of the knowledge of the decree or order.

18. Further, it is also the stand of the Respondent that time runs from the date of judgment and not from the date when a decree is signed. Therefore, according to the Learned Counsel for the Respondent, the Review Application Sr.No.91035 of 2012 in A.S.No.7 of 2001 has not been projected in time.

19. The Learned Counsel for the Respondent submits that under Section 5 of the Limitation Act, 1963, each and every day's delay should be explained. However, the present petition M.P.No.2 of 2013 is totally devoid of the same. Added further, the Limitation runs from the date of judgment and not from the date of obtaining certified copy of the judgment.

20. The Learned Counsel for the Respondent submits that there is absolutely no whisper in M.P.No.2 of 2013 in regard to the reasons that has occurred for the delay of 818 days (from the date of pronouncement of judgment in A.S.No.7 of 2001 on 23.06.2010) and on this ground also M.P.No.2 of 2013 is devoid of merits.

21. Apart from the above, the Learned Counsel for the Respondent contends that after disposal of A.S.No.7 of 2001 by this Court on 23.06.2010, the Respondent issued legal notice on 20.07.2010 to the Applicant and after receipt of the notice the applicant issued a reply dated 16.08.2010, wherein the Applicant has admitted the amount payable to him. The Respondent has also filed E.P.No.3783 of 2011 on the file of the Learned IX Assistant Judge, City Civil Court, Chennai and the Applicant has been dragging on the matter without making any payment to him.

22. The Learned Counsel for the Respondent cites the decision of the Hon'ble Supreme Court in B.Madhuri Goud V. B. Damodar Reddy (2012 (3) C.L.T. 705) and at page 706, wherein it is observed and held as follows:-

The Court cited the case of Manileen Devraj shaw Municipal Corporation Brihan Mumbai (2012) 5 SCC 157 stating that what color the expression sufficient cause would get in the factual matrix of a given case would largely depend an bonafide nature of the explanation. If the court finds that there has been no negligence an the part of the applicant and the cause shown for the delay does not lack bonafides, then it may condone the delay. If, an 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.

23. Also, in the aforesaid decision at pages 712 and 713 in paragraph Nos.14 to 17, it is observed and held as under:-

14. A careful reading of the above extracted averments makes in clear that even though the respondent was very much conscious of the fact that the appeal filed by him against order dated 20.2.2008 passed by the trial Court had been dismissed by the High Court on 11.12.2008 and he had obtained certified copies of the documents, which are said to have handed over to the counsel on 10.1.2009, he did not make any effort to contract the concerned advocate till the first week of March, 2010 to ascertain the fact of the appeal supposed to have been filed by him against the judgment and decree dated 18.08.2006. Not only this, the application and affidavit filed by him are conspicuously silent about the name of the advocate to whom the papers were entrusted for the purpose of preparing the grounds of appeal. The affidavit of the concerned advocate was also not filed.

15. In our view, if there was any iota of truth in the respondent's story that the certified copies of the documents were misplace by the office of his counsel on 2.3.2010 while preparing arguments in A.S.No.200/2001, the minimum which he was expected to do was to file an affidavit of the concerned advocate. Why he did not do so has not been explained by the respondent. Notwithstanding this, the learned Single Judge assumed that the counsel to whom the appellant is said to have handed over the documents was remiss in the performance of his duties and on that account, the same got tagged with another file resulting in the delay. This is evinced from the following observations made in the impugned order:

The explanation for the delay is that the petitioner has entrusted the bundle to his counsel so as to prefer an appeal, but the counsel seems to have kept the bundle in another bundle i.e., in A.S.No.200 of 2001 and the same was noticed when the said case came up for hearing. No doubt, there are some laches on the part of the counsel for the petitioner in keeping the record in another bundle and in filing the appeal in time immediately after the judgment and decree of the trial Court, even though the petitioner has entrusted the bundle to him to enable him to file an appeal, but those laches cannot be attributable by the counsel, the party cannot be made to suffer. Therefore, the delay has been satisfactorily explained.

16. In our view, the statement made by the respondent about misplacement of the documents by the office of the Advocate was vague to the core and the learned Single Judge committed grave error by entertaining the fanciful explanation given for 1236 days delay.

17. In the result, the appeal is allowed. The impugned order is set aside. The application filed by the respondent for condonation of 1236 days delay in filing appeal against the judgment and decree of the trial Court shall stand dismissed.

24. It is to be pointed out that the delay that has occurred requires to be explained from the date the time was running out till the date of filing appeal or application, as the case may be, as per decision Ramlal V. Rewa Coalfields Ltd. AIR 1962 SC 361. The words 'Sufficient Causes' in Section 5 of the Limitation Act, 1963, ordinarily cannot be liberally construed just because the defaulting litigant in default is the Government. Indeed, the ingredients Section 5 of the Limitation Act makes no distinction between the State and private individual or an institution when it is to establish sufficient cause.

25. If the delay in issue has been properly / sufficiently explained, the same should be condoned particularly when the party seeking condonation of delay is the government, as per the decision of Hon'ble Supreme Court Union of India V. Manager, Jain Associates AIR 2001 SC 809; (2001) 3 SCC 277. Although some delay might occur due to functioning of the Government and its hierarchy but still it has to remain within reasonable ambit as opined by this Court.

26. At this stage, this Court worth recalls the decision in Principal Secretary, Government of Orissa V. Managing Committee of Shri Jatindra High School Bhadrak AIR 2010 NOC 435 (Ori), wherein it is observed that 'when it is established that the State was taking casual and careless approach in the matter of conduct of the case, the prayer for the State Government to condone the delay cannot be entertained.'

27. Notwithstanding the fact a liberal approach ought to be adopted when it is seen that the litigant with all his sincerity was pursuing his case, however when the conduct of the applicant indicates that he intentionally, knowingly and purposely had not pursued Court proceedings and no sufficient cause was offered on his side for condoning the delay, such person could not be permitted to take advantage of the Court Process, in the considered opinion of this Court.

28. At this juncture, this Court aptly points out that the decision in State of Karnataka V. S.B.Nanjappa Gowda AIR 2010 NOC 110 (Kant), wherein it is held that ' 2590 days of delay in filing the review petition against order of a writ petition cannot be condoned when no sufficient cause has been made out for condoning the delay'.

29. In this connection, this Court cites the following decisions to promote substantial cause of justice.

(a) In the decision of the Hon'ble Supreme Court in The State of West Bengal V. The Administrator, Howrah Municipality and others etc., (AIR 1972 Supreme Court 749) at page 755 in paragraph 30, it is held that :-

30. The expression sufficient cause should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party

(b) In the decision of the Hon'ble Supreme Court in Union of India V. Tata Yodogawa Limited (1988 (38) E.L.T. 739 (S.C.), it is held as follows:-

The fact that the Government being impersonal taking longer time in filing the Appeals/Petitions than the private bodies or the individuals even giving that latitude there must be some way or attempt to explain the cause for such delay. There is no whisper to explain what legal problems in filing the Special Leave Petition arose. Hence, the application for condonation of delay not entertainable.

(c) In the Division Bench decision of this Court Indian Oil Corporation Ltd., Madras V. Mrs.Sakuntala Ganapathy Rao Proprietor, Modern Home Agencies (1998(suppl) MLJ at page 96), it is laid down as follows:-

The period for preferring an appeal cannot be extended simply because the appellant's case is hard and calls for sympathy, nor will the courts extend the period of limitation merely out of benevolence to the party seeking relief. A court granting indulgence must be satisfied that there was deligence on the part of the appellant and that he was not guilty of any negligence whatsoever. Ofcourse, court should not be too strict as it might well defeat the ends of justice. Where there is no sufficient cause for condoning the delay having regard to the position of the party that too, when it is a corporation having assistance of best of men to conduct its affairs, the said delay should not be condoned as it amounts to a case of discretion not being exercised judicially. If there is no support by any evidence adduced for delay, the application therefor ought to be rejected. The word sufficient cause cannot be construed liberally merely because the party in default is the Government or an institution. In order to take a practical view of the working of a Government or an institution to the slow motion process of its wheels, there must be sufficient explanation from the source at which the delay occurred and the reasons for such delay. In the absence of satisfactory explanations of the delay by the petitioner the delay need not be condoned. It is settled law that the appellant has to satisfy that the delay was due to sufficient cause. In United India Ainsurance Company Ltd. V. Pravin Paul, (1993) 2 M.LO.J. 174: (1993) 1 L.W.68, this Court has taken the view that in case of delay set up by a busy body, like the applicant / Petitioner herein, it has to be explained properly and non-explanation disentitles them to approach this Court. A Government undertaking cannot be equated to a private litigant. They are expected to give details with regard to delay. At para 6 of the affidavit, except a bald statement there is no explanation as to when the copy of the order was received and by whom, if so, as to the manner why and how the delay had been caused. In the absence of proper explanation with details regarding delay there is no sufficient cause to condone the delay of 64 days and the same is fatal. Mere stating administrative delay does not constitute sufficient cause and such an explanation is liable to be rejected.

(d).In the Division Bench decision of this Court P.R.Sundaravadanam and others V. P.R.Vimala and another (1997 (Vol.1) MLJ at Page 618), it is held that the discretion under Section 5 of the Limitation Act, has to be exercised judicially and not arbitrarily.

(e) In the decision of this Court Rathinathammal V. Muthusamy and others ((2004) 3 M.L.J. 36), it is held as follows:-

The delay of 545 days in seeking to set aside an ex parte decree cannot be condoned when the party aggrieved is not diligent in pursuing the matter and approaches the Court only during execution proceedings.

(f) In the decision Sivakumar and Another V. R.Sengodan ((2007) 5 MLJ 718), it is held as follows:-

In a case of condonation of delay, the Court must take a liberal view, but at the same time, the Court should not do so on exercising equity and Court should not excuse the delay when there is no sufficient and convincing reasons, otherwise, it would be nothing but extension of limitation what is not available to a party under an enactment.

(g) In the decision G.Jayaraman V. Devarajan ((2007) 3 MLJ 631 and at special page 632), it is held as follows:-

I. While considering the plea relating to affording an opportunity to advance substantial justice, the right accrued to the other side ought to be kept in view. Delay cannot be condoned as a matter of judicial generosity.

II. Where delay could have been avoided by due care and caution, the Court may not exercise the discretion to condone delay.

III. Rendering substantial justice, is not to cause prejudice to the opposite party.

(h). In the decision of this Court Arukkani Ammal V. Guruswamy (1987 (2) MLJ at page 32), it is inter alia held as follows:-

. . . The vague allegation that the defendant was ill is hardly any justification for setting aside the ex parte decree and such an allegation cannot amount to proof of sufficient cause which is mandatory requirement before an ex parte decree is set aside.

(i).In the decision of this Court S.Pakkiaraj V. S.N.Kulasekaran (1994 (1) MLJ at page 91 and 92), it is held as follows:-

No doubt there is no limit as such for making an application for obtaining copy of the judgment and decree appealed against. But, if such an application is made after the prescribed period of limitation of 90 days , the whole period beginning from the date of the judgment and decree till the date of filing of the copy application would be certainly taken as forming part of the whole delay in filing the appeal or revision, as the case may be. But, that portion of the said delay upto the above said 90th day from the date of the judgment and decree, cannot be excused at all under Sec.5 of the Limitation Act. This conclusion is only the necessary consequence of interpretation put by the Supreme Court in relation to the expression 'within such period' found in Sec.5 of the Limitation Act in Ramlal V.Rewa coalfields Limited, A.I.R.1962 S.C.361.

(j) In the decision State of U.P. and another V. Surendra Nath and others (AIR 1992 ALLAHABAD 127), it is held as follows:-

Where the appeal by the State Govt. was first filed with a huge deficiency of court-fee when money had already been placed at the disposal of the State Counsel and there was delay in filing the appeal with proper court-fee which was not explained and it was also not explained as to why the appeal was filed with such huge deficiency of court-fee neither it was stated as to when the papers were sent by the Collector to the State Govt. for sanction for filing appeal and as to how the sanction granted by the State Govt. reached the office of the Collector after about one month, the delay of 109 days in filing the appeal cannot be condoned. In such a case, it could not be said that on account of strike by the lawyers in the High Court the appeal could not be filed when the office of the Chief Standing counsel was functioning during the strike and the registry of the High Court was open and thus there could be no hindrance in filing the appeal in registry as soon as the papers were received.

30. It is to be borne in mind that the judgment in A.S.No.7 of 2001 and Cross objection No.55 of 2001 was delivered by this Court on 23.06.2010. However, the Applicant / Appellant filed copy application on 08.10.2012 in C.D.No.15674 of 2012, the copy application was made ready on 09.10.2012 and the same was delivered on 10.10.2012. In that process, admittedly there has occasioned a delay of 818 days in preferring Review application in SR.91035 of 2012 by the Petitioner/Review Applicant.

31. Be that as it may, on a careful consideration of respective contentions and even though a Court of Law is to adopt a liberal pragmatic and justice oriented approach overriding technicalities. While dealing with condonation of delay application, yet, on the basis of the fact and circumstances of the present case, this Court comes to an inevitable conclusion that the delay of 818 days in issue has not been sufficiently explained to the subjective satisfaction of this Court. Further, the Petitioner has also not offered any plausible explanation for the delay of 818 days in preferring the Review Application before this Court. If 'sufficient cause' is not made out, 'mere payment of costs' is no ground, so as to enable a Court of law to allow the condone delay application.

32. Even assuming a Government being an impersonal takes longer time than individuals or private parties, and although one can allow some premium yet it cannot be brushed aside that there must be an endeavour to explain the cause of such delay.

33. However, on going through the averments made in paragraph 10 of M.P.No.2 of 2013 filed by the Petitioner especially to the effect that ' . . . . since the counsel who appeared for the first appeal has not filed copy application, subsequently on 08.10.2012 we have filed an application and the order copy was made ready on 09.10.2012. The copy of the order received on 10.10.2012 and immediately on 18.10.2012, the Review Application was filed' are not prima facie either good reasons or sufficient reasons to explain the delay of 818 days in question. Viewed in that perspective, the condonation of delay miscellaneous petition fails.

34. In the result, the miscellaneous petition No.2 of 2013 is hereby dismissed leaving the parties to bear their own costs.

07.08.2013 M.VENUGOPAL,J.

sms order in M.P.No.2 of 2013 in Rev.Appln. SR.No.91035 of 2013 in A.S.No.7 of 2001 07.08.2013

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