Gujarat High Court
Heirs Of Babubhai H. Kanada vs Natwarlal Chandarana on 4 September, 2002
Equivalent citations: (2003)4GLR643
JUDGMENT H.H.Mehta, J.
1. The original revision petitioners of Civil Revision Application No.348 of 1988 decided by this Court, have by preferring this application under Section 5 of the Limitation Act, 1963 requested this Court to condone the delay of 440 days for filing a proposed Review Petition under Section 114 of the Civil Procedure Code, read with Order, 47, Rule-1 of the Civil Procedure Code, being Misc. Civil Application [Stamp] No.2140 of 2001.
2. The present petitioners and opponent Nos.2 and 3 being tenants were the original defendants in original Regular Civil Suit [Rent Suit] No.345 of 1981 before the trial Court. The opponent No.1 being Landlord was a plaintiff in the said suit. [The parties before this Court will be referred to as the plaintiff and defendants respectively hereinafter for the sake of convenience]. The plaintiff filed one Regular Civil Suit [Rent Suit] No.345 of 1981 in the Small Causes Court, at Rajkot on 16/12/1981, against the defendants for decree of eviction and also to recover the physical possession of the suit premises along with a prayer for money decree to recover Rs.2,697.64 paisa [Rupees Two Thousand Six Hundred Ninety Seven and Sixty Four Paisa] from the defendants. On 31/12/1983, that suit was decreed in favour of the plaintiff and against the defendants.
2.1 Thereafter, on 15/12/1984, defendants preferred Regular Civil Appeal No.45 of 1984 against that judgment and decree to the Court of District Judge, Rajkot. On 03/03/1988, that appeal came to be dismissed confirming the judgment and decree passed by the learned Judge of the trial Court.
2.2 Thereafter, on or about 06/04/1988, defendants preferred Civil Revision Application No.348 of 1988 challenging the judgment and decree of the District Court, Rajkot, to this Court. That Civil Revision Application No.348 of 1988 came to be dismissed by this Court on 04/07/2000. On or about 05/01/2002, defendants have preferred Misc. Civil Application [Stamp] No.2140 of 2001 dated 17/10/2001 for review of the judgment dated 04/07/2000 rendered by this Court in Civil Revision Application No.348 of 1988. The defendants sat silent for getting that Review Application further prosecuted till 10/03/2002. On 27/03/2002, the defendants have preferred this present application dated 11/03/2002 under Section 5 of the Limitation Act, 1963 with a request to condone the delay of 440 days by giving a retrospective effect for filing the aforesaid Misc. Civil Application [Stamp] No.2140 of 2001.
3. The facts leading to this present condonation application are necessary to be stated for taking a judicial decision on the point involved in this application.
3.1 The opponent No.1 being original plaintiff is an owner of building known as "Sarasvati Bhuvan", situated on Plot No.44, in Municipal Employee Co-operative Housing Society, on Kishanpara Main Road, at Rajkot. The said building is consisting of ground floor and first floor. The suit premises, which are in possession of the applicants and opponent Nos.2 and 3 as tenants are on first floor. The suit premises, which are on the first floor of the said building, are consisting of one room, kitchen, Osari and a Ravesh [balkony]. The said suit premises were reasonably and bonafide required by the plaintiff. The defendants were tenants-in-arrears of rent for more than six months and they neglected to pay the said arrears of rent. Therefore, the plaintiff, after terminating the tenancy by addressing a notice dated 03/09/1981, filed aforesaid Rent Suit No.345 of 1981 in the Small Causes Court, at Rajkot on 16/12/1981 for a decree of eviction and also for a money decree to recover Rs.2,697.64 from the defendants mainly on following two grounds ;
[a] The plaintiff's case falls under Section 13(1)(g) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 [for short the "Rent Act"] read with Section 13(2) of the Rent Act.
[b] The plaintiff's case also falls under Section 12(3)(a) of the Rent Act.
3.2 The learned Judge of the trial Court decreed that suit in favour of the plaintiff on 31/12/1983 by holding that defendants are the tenants-in-arrears for more than six months and they have neglected to make payment of the said arrears of rent within one month from the date of service of suit - notice and that plaintiff is reasonably and bonafide required suit premises for his personal use and occupation. At the time of rendering the judgment and passing a decree in favour of the plaintiff, the learned Judge of the trial Court granted a time of two years to the defendants to vacate the suit premises latest by 31/12/1985.
3.3 Being aggrieved against and dissatisfied with the said judgment and decree passed on 31/12/1983, by the trial Court the defendants preferred Regular Civil Appeal No. 45 of 1984 in the District Court, Rajkot. The learned Joint District Judge, Rajkot by his judgment dated 03/03/1988 dismissed that Regular Civil Appeal No.45 of 1984, by confirming the judgment and decree of eviction passed by the learned Judge of the trial Court. On reading the judgment rendered by the learned Joint District Judge, Rajkot, it is found that the appeal was argued by the learned advocate for the defendants on all the counts including the ground on which the learned Judge of the trial Court passed a decree accepting the case of the plaintiff under Section 13(1)(g) of the Rent Act read with Section 13(2) of the Rent Act.
3.4 Thereafter, on or about 06/04/1988, the defendants carried that matter further to this Court by filing Civil Revision Application No.348 of 1988, which was heard and decided by this Court. This Court by rendering its judgment dated 04/07/2000 dismissed that Civil Revision Application No.348 of 1988. During the course of dictating the oral judgment, in open court, the learned advocate Mr.D.U.Shah, who appeared for the defendants/revision petitioners requested this Court to grant a reasonable time of three years so as to enable the defendants to find out an alternative accommodation. At that time, Mr.J.R.Nanavati, learned advocate, who appeared for the plaintiff/revision opponent fairly conceded that at the best a reasonable period of one year could be granted by asking the defendants to vacate the suit premises and hand over the actual, vacant and physical possession of the premises on executing an undertaking with usual terms and conditions before this Court, within a reasonable period. Looking to the facts and circumstances of the case and submissions made by the learned advocates for both the parties, this Court granted a reasonable period of two years from the date of judgment dated 04/07/2000 rendered by this Court, so as to enable the defendants to find out an alternative accommodation. In the judgment, it was made clear that the said period of two years is granted on condition precedent that defendants shall give an undertaking with usual terms and conditions supported with affidavit, within one month from the date of that order dated 04/07/2000 of this Court.Accordingly, all the defendants i.e.present petitioners gave their undertaking to this Court on 21/07/2000. The text of that undertaking reads as follows :-
UNDERTAKING "We, the abovenamed petitioners, do solemnly give this undertaking in pursuance of Judgment of the Hon'ble Court giving us two years time to vacate the suit premises.
1. That we are in possession of the suit premises, we shall not transfer possession to any one else but shall handover quiet and vacant possession of suit premises on 4th July, 2002.
2. That we have paid all the arrears of rent so far and shall pay from month to month the rent or mesne profits due."
3.5 As stated by Mr.S.M.Shah, learned advocate for the petitioners, on 22/02/2001, defendants carried the subject matter further to the Hon'ble Supreme Court by filing Special Leave to Appeal (Civil)...CC 2783/2001. On or about 23/04/2001, the Hon'ble Supreme Court [Coram : Hon'ble Mr.Justice V.N.Khare & Hon'ble Mr.Justice N. Santosh Hegde] passed the following order ;
O R D E R "Learned counsel states that the petitioner intends to file a review petition in the High Court. Therefore, he seeks leave of this Court to withdraw this petition. Accordingly, this petition is dismissed as withdrawn."
3.6 Pending the proceedings, in the Year 1988, the plaintiff had filed an Execution Application being Regular Civil Execution Application [Darkhast] No.11 of 1988, which is still pending on file of the trial Court. In the proceeding of Civil Revision Application No.348 of 1988, this Court granted stay against the execution of decree and, therefore, that Regular Civil Darkhast No.11 of 1988 remained pending as "stayed" till 04/07/2002. As per the undertaking given by defendants, to this Court, defendants did not hand over the physical and vacant possession of the suit premises to the plaintiff on or before 04/07/2002 and, therefore, the plaintiff submitted an application at Ex.13 in the Execution Court with a prayer to proceed further in Regular Civil Darkhast No.11 of 1988.
3.7 Before this, on 05/01/2002, defendants filed a Review Petition dated 17/10/2001 under Section 114 of the Civil Procedure Code read with Order 47, Rule 1 of the Civil Procedure Code with a request to this Court to review its judgment dated 04/07/2002. On 05/01/2002, the Review Petition was not regularly registered because of office objections and it was merely given a Stamp Number being Misc. Civil Application [Stamp Number] No.2140 of 2001. Thereafter, defendants did not take any care to get the said Review Petition being Misc. Civil Application [Stamp Number] No.2140 of 2001 further prosecuted till 15/03/2002 and on 16/03/2002, the defendants filed this present application dated 11/03/2002 under Section 5 of the Limitation Act, 1963 with a request to this Court to condone the delay of 440 days by giving retrospective effect to review petition being Misc. Civil Application [Stamp Number] No.2140 of 2001. In this present application, the petitioners have requested this Court to grant stay of further proceedings of Regular Civil Darkhast No.11 of 1988, pending in the Court of Small Causes Court, Rajkot. On 19/07/2002, this Court passed the following order;
"Leave to add a prayer for stay, is granted. Notice returnable on 26th July, 2002. Direct Service is permitted for tomorrow. S.O. to 26th July, 2002 at 2-15 p.m."
3.8 In response to that notice, the opponent No.1 original plaintiff filed affidavit-in-reply opposing this present application, on 26/07/2002. Thereafter, on 06/08/2002, the applicant No.1/5 - Jitendra Babulal has filed rejoinder affidavit on behalf of all the petitioners.
4. During the Course of hearing, the learned advocate for the opponent No.1/original plaintiff filed an application for production of two documents. After hearing the learned advocates for both the parties, this Court granted a leave to opponent No.1 to rely and refer upon the said two documents produced along with the application dated 19/08/2002. As per that two documents, the plaintiff submitted an application Ex.13 in the Execution Court in the proceeding of Regular Civil Darkhast No.11 of 1988 on 04/07/2002 with a request to issue a possession warrant for suit premises and also a warrant to recover the decretal amount from the defendants, as stated in Execution Application. After hearing learned advocates for both the parties, the learned Judge of the Execution Court passed an order on 31/07/2002 directing the defendants to hand over physical and vacant possession of the suit premises to the plaintiff on or before 05/08/2002 failing which the possession warrant under Order 21, Rule 35 of the Civil Procedure Code be issued.
4.1 The defendants challenged that order dated 31/07/02 passed below Ex.13 in Regular Civil Darkhast No.11 of 1988 in the District Court, Rajkot by preferring Regular Civil Appeal No.38 of 2002 on 06/08/2002. That appeal being Regular Civil Appeal No.38 of 2002 came to be dismissed on 09/08/2002, with an order directing the appellants/defendants to pay costs of Rs.5000/- to the respondent/plaintiff.
4.2 During the course of hearing of this application, Mr.J.R.Nanavati learned advocate for the opponent No.1 plaintiff has made a statement at the Bar that defendants have not yet handed over the physical possession of the suit premises to the plaintiff as per undertaking given to this Court.
5. Heard Mr.S.M.Shah, learned advocate for and on behalf of Mr.R.R.Trivedi, learned advocate for the applicants and Mr.J.R.Nanavati, learned advocate for and on behalf of Mr.A.R.Thakkar, learned advocate for the opponent No.1.
5.1 Though notices have been duly served on the opponent Nos.2 and 3, no one has appeared. I have perused the documents appended with this application, affidavit-in-reply filed by the opponent No.1 and rejoinder affidavit filed by the applicant No.1/5.
6. Mr.S.M.Shah, learned advocate for the applicants has argued that looking to Section 5 of the Limitation Act,1963 the applicants have stated the grounds in para-3 of the application for delay caused in preferring the review petition and looking to that grounds, the applicants had sufficient cause for not preferring review petition within the prescribed period of limitation. He has further argued that words "sufficient cause" should be liberally construed by this Court and, therefore, the delay occurred for 440 days for delay in preferring review petition be condoned so as to advance substantial justice. While arguing on the grounds under Section 5 of the Limitation Act,1963. Mr.S.M.Shah has also touched the merits of his proposed review petition, which is sought to be regularly registered after condoning the delay of 440 days. He has argued that during the pendency of Regular Civil Appeal No.45 of 1984 before the District Court, Rajkot, subsequent events took place. As argued by Mr.S.M.Shah, one other tenant named Shri Surji Ganatra using block of area similar to that of suit premises handed over the vacant possession of the block in his possession to the plaintiff/landlord on 21/05/1984 in private settlement. In view of this subsequent event, the requirement of the landlord was fulfilled and as such, the entire eviction suit had become infructuous. Mr.S.M.Shah, learned advocate for the applicants has tendered a simple copy of application dated 12-8/09/1985 filed in the proceeding of Regular Civil Appeal No.45 of 1984, which was pending in the District Court, Rajkot. On being asked, Mr.S.M.Shah, learned advocate for the applicants is unable to inform this Court as to what judicial order was passed by the Appellate Court, Rajkot below said application. As per that simple typed copy of application, one Shambhuram Surji was another tenant in the same property and that another tenant handed over the possession of the premises in his possession to the present opponent No.1/plaintiff on 21/05/84 and thus, the plaintiff has obtained another premises of area more than what he was required for his use and occupation, when he filed the suit. Mr.S.M.Shah, learned advocate for the applicants has argued that the subsequent event has not been considered by the learned Judge of the District Court, Rajkot. When the present applicants filed Civil Revision Application No.348 of 1988, then they took one of the grounds at Serial No.2 in memo of Civil Revision Application to the following effect ;
"That the learned Judge is in error in finding that another tenant Shambhuram had not vacated his rented premises and handed over possession thereof to the landlord."
6.1 Mr.S.M.Shah, learned advocate for the applicants has strenuously argued that in the suit when the landlord has sought a possession of the rented premises on the ground of his personal bonafide requirement, then that requirement should not only exist on the date of the action, but must subsist till the final decree or an order for eviction is made and if in the meantime some events have taken place, which would show that the landlord's requirement is wholly satisfied, then in that case the action must fail and in such a situation it is incorrect to say that as decree or order for eviction is passed against the tenant, he cannot invite the Court to take into consideration subsequent events. He has further argued that once an appeal against the decree or order of eviction is preferred, the appeal being a continuation of the suit, the landlord's need must be shown to continue to exist at appellate stage. For such submission, He has placed reliance on the case of Hasmat Rai and another Vs. Raghunath Prasad, reported in AIR 1981 S.C. 1711. On the same point, he has cited another authority of Gulabbai Vs. Nalin Narsi Vohra and others, reported in AIR 1991 S.C. 1760, wherein it has been held that in appropriate cases events subsequent to the filing of the eviction suit can be taken notice of and can be duly considered by the Court provided the same is relevant in determining the question of bona fide requirement.
6.2 Mr.S.M.Shah has argued that during the pendency of the appeal before the District Court, Rajkot, the events stated in para-5 of the proposed review petition had already taken place and, therefore, the learned Judge of the District Court ought to have taken into consideration that grounds, even though that events existed after suit was decreed by the learned Judge of the trial Court. He has further argued that the applicants have stated the grounds in para-3 of this present application, which are sufficient for taking into consideration for condoning the delay of 440 days for preferring proposed review petition. He has placed reliance on case of Ahmedabad Electricity Company Vs. Electricity Mazdoor Sabha and another, reported in 1989 (2) GLH 256. The decision rendered in the cited case is of Division Bench of this Court. He has, in short, argued that the applicants have got a very good case for getting review petition allowed and to get the judgment dated 04/07/2000 rendered by this Court in Civil Revision Application NO.348 of 1988, set aside and in view of that fact the condonation application deserves to be allowed by condoning the delay of 440 days.
7. Mr.J.R.Nanavati, learned advocate for the opponent No.1/plaintiff/landlord has strongly opposed this application and submitted the arguments that while considering the condonation application, merits of the case in review petition cannot be taken into consideration. He has argued that while deciding this application for condonation of delay, this Court should take into consideration the submissions of opponent No.1 contained in affidavit-in-reply opposing the application filed by the applicants. He has further argued that no doubt a liberal view should be taken for considering the delay condonation application, but it does not mean that the Court should blindly allow the condonation application without taking into consideration the causes stated by the applicants in their condonation application strictly on merits. He has urged that the condonation application should be decided strictly on merits and if this Court finds that causes for alleged delay are not sufficient to condone the delay, the Court should not condone the delay for sake of granting under the pretext that liberal view should be taken into consideration. He has argued that the opponent No.1/plaintiff filed Rent Suit No.345 of 1981 on 16/12/81. Though, the learned Judge of the trial Court has granted a decree of eviction on 31/12/1983 by granting a reasonable period of two years, the opponent No.1/plaintiff/landlord is not in a position to enjoy the fruits of decree of eviction granted in December, 1983, even after about 19 years. He has further submitted that the applicants/tenants, who have lost the legal battle right from trial Court to the Hon'ble Supreme Court of India, want to any how continue the litigation on one or other ground. Mr.Nanavati has emphatheticallyarguedthatthough the applicants/tenants, who have given an unconditional undertaking, to this Court supported on affidavit to the effect that they shall hand over the actual physical possession of the suit premises to the plaintiff, on or before 04/07/02, they have not yet handed over the possession of the suit premises to the plaintiff. He has further argued that the applicants have committed a contempt of this Court by not fulfilling the promises given in unconditional undertaking, to this Court. He has argued that this is a case of gross abuse of court process. He has placed reliance on case of Carona Sahu & Co. Ltd. Vs. S.Anandavadivelu and others, reported in (2002) 5 Supreme Court Cases 351. As this authority is very short consisting of only 10 lines, it is reproduced herein below :-
O R D E R "1. It has not been denied in the present cases that the petitioner tenants asked for time from the High Court to vacate the premises when the High Court was dismissing their revision petitions, and the High Court by its order dated 25-1-1987 granted six months to the petitioner to vacate the premises. The grant of time was consented to by learned counsel for the respondent landlord. The respondent did not take proceedings to evict the petitioner in view of the order of the High Court granting time to the petitioners to vacate the premises. It is apparent that the petitioners took advantage of that order. Time was given on the unconditional statement of the petitioners that they would vacate during the time granted by the High Court. In the circumstances, we cannot permit the petitioners to file these special leave petitions and to maintain that they are entitled to continue in possession and that the High Court and the statutory authorities are wrong in holding on the merits that the petitioners are liable to dispossession. The conduct of the petitioners disentitled them to question those orders.
2. The special leave petitions are rejected."
8. This application is filed under Section 5 of the Limitation Act, 1963. Section 5 of the Limitation Act reads as follows :-
"5. Extension of prescribed period in certain cases - Any appeal or any application, other than an application under any of the provisions of Order 21 of the Code of Civil Procedure, 1908 95 to 1908) may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation - The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."
8.1 In a Full Bench decision of this Court in the case of Municipal Corporation of Ahmedabad through the Municipal Commissioner Vs. Voltas Limited and etc., reported in AIR 1995 Gujarat 29, it has been held in para-5.4 [Page-34] as follows :-
"A plain reading of this provision indicates that firstly this is an enabling provision and nothing more. It enables a Court to condone the delay, subject to the Court being satisfied that there was "sufficient cause" for the delay. The Court can only examine the submissions of the parties on the basis of the facts averred and made out in the application for condonation. The Court cannot decide the sufficiency of the cause de hors the facts pleaded and made out. Whether the cause shown was sufficient or otherwise, cannot be converted into a question of principle, as attempted by the learned counsel for the applicant, on the basis of the decision in the case of Collector, Land (Acquisition, Anantnag (AIR 1987 SC 1353 (supra). Thus, we have no hesitation in coming to the conclusion that the phrase "sufficient cause" involves only questions of fact to be considered by the Court dealing with the application for condonation of delay, and in considering the sufficiency of the cause, no question of principle is involved, except that a liberal view should be adopted in the examination and interpretation of the facts which seek to establish "sufficient cause", as laid down in the case of Collector, Land Acquisition, Anantnag(supra)."
8.2 It has further been held in para-[6] as follows:-
"In other words, the sufficiency of the reason for condoning the delay must necessarily be established from the facts, both averred and established, and such facts would necessarily differ from case to case. Clearly, therefore, merely pleading or even asserting that the cause for delay was "administrative delay administrative reasons/administrative procedure" would not establish the sufficiency of the cause. Necessarily, therefore, the Court considering the application for condonation of delay is required to go into the facts of the case i.e., the facts of the particular application, and determine on the basis of those facts alone as to whether the cause is sufficient or otherwise, for condoning the delay."
8.3 It is well settled position of law that the existence of "sufficient cause" to the satisfaction of the Court is the condition set for the Court to exercise its discretion in the matter of condoning delay. Granting of extension under Section 5 on sufficient cause being shown is a matter of discretion which is judicial and not arbitrary. Where "sufficient cause" is not shown no question of condonation of delay arises. Even if there may be sufficient cause the Court may in its discretion decline to condone the delay. It is relevant to bear in mind two important considerations, namely ; [1] the expiration of limitation for filing the appeal gives rise to a legal right in favour of the decree-holder to treat the decree as binding between the parties and this legal right should not be light heartedly disturbed ; [2] if sufficient cause of excusing delay is shown, the applicant is not entitled as a matter of right to condonation of delay, but discretion is given to the Court to condone delay and admit the appeal. Section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles : the words "sufficient" cause receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant. In the case of Manindra Lands and Buildings Corporation Vs. Bhutnath Banerjee, reported in A.I.R. 1964 S.C. 1336, it has been held that whether there is sufficient cause for condoning the delay is a matter exclusively within the jurisdiction of the Court where the proceeding is instituted which may decide it rightly or wrongly. It is a well settled principle of law that if the appellant does not show the sufficient cause nor does the Court record the finding that the cause shown by the appellant is sufficient for not preferring the appeal in time, the court does not possess power to arbitrarily condone delay in the name of advancing substantial justice merely because the appellant litigant happens to be the government. "Sufficient cause" must be a cause which is beyond the control of the party invoking the aid of the section. A cause for delay which a party, could have avoided by the exercise of due care and attention cannot be a sufficient cause. The test whether or not a cause is sufficient is to see whether it is a bona fide cause, inasmuch as nothing can be considered to be bonafide which is not done with due care and attention. In case of Municipal Corporation of Ahmedabad v. Voltas Limited, [supra] Full Bench of this Court ruling spells out of "sufficient cause" and lays down the following propositions :
[a] The phrase "sufficient cause" pertains to the establishment of appropriate facts before the Court, to which the Court can apply its mined.
[b] Condonation depend on the facts of each case but the facts must be placed by the applicant before the Court.
[c] Courts should take a liberal views.
8.4 It is also a legal position that whether there is a sufficient cause is a question of fact in each case. In considering the question, the bona fides of the party should be taken into account. Good faith for this purpose is to be understood in its general sense rather than in the sense in which it has been defined in Section 2(h) of the Act. It implies due care and caution and is negatived by inaction, carelessness or negligence. Inaction or negligence before the expiry of the limitation period may not be material. Thus, for condonation of delay sufficient cause should be bona fide done in good faith. The question of existence of "sufficient cause" is to be decided on the basis of the facts and circumstances of each particular case. Sufficient cause within the meaning of the section must be a cause which is beyond the control of the party invoking the aid of the section and the test to be applied would be to see as to whether it was a bona fide cause, inasmuch as nothing could be considered to be bona fide which is not done with due care and attention.
9. Keeping in mind the aforesaid legal position with regard to condonation of delay. Now I will consider the case of the applicants for the request to condone the delay of 440 days. It is the case of the applicants that they want to file a review petition under Section 114 of the Civil Procedure Code read with Order 47, Rule-1 of the Civil Procedure Code for getting the judgment dated 04/07/2000 of this Court rendered in Civil Revision Application No.348 of 1988, reviewed for which they have simply filed Misc. Civil Application [Stamp] No.2140 of 2002. It appears from the record that proposed review petition was prepared on 17/10/2001 and it appears to have been submitted by applicants in the Registry on or before 05/01/2002. Admittedly, there was a delay on 440 days as on 19/10/01. The office put a note stating office objections of following nature;
6. Beyond time by_________________days;
7. But C.A. to be filed;
19. Typed copy of C.C. & JT. to be filed.
The aforesaid objections were referred to the learned advocate on 05/01/2002. Till 30/01/2002, the applicants totally failed to remove the aforesaid office objections. Therefore, on 31/01/2002, the Joint Registrar passed the following order;
"None present for the petitioners.Office objections to be removed on or before 28/02/2002 failing which, the matter shall be placed before the Honourable Court for passing appropriate orders."
Inspite of the aforesaid order, the applicants did not care to remove the office objections till 14/03/2002. Said Misc. Civil Application [Stamp] No.2140 of 2001 was placed before this Court [Coram : D.K.Trivedi,J.] on 15/03/2002. This Court passed an order as follows ;
"Time to remove office objection, is extended till 18/03/2002."
Thus till 15/03/02, proposed review petition was not a regular review petition, in eye of law. Only a Stamp No.2140 of 2001 has been given to that proposed review petition. Sub-section (1) of Section 3 of the Limitation Act 1963 reads as follows :-
"Subject to the provisions contained in Sections 4 and 24 [inclusive], every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence". And, therefore, proposed review petition is deemed to have been not filed in the Court, till 15/03/2002."
From the record, it appears that the applicants have preferred this present delay condonation application for the first time on 16/03/2002, though it is dated 11/03/2002. Even for this present delay condonation application, there were certain office objections, which were expected to be removed by the applicants at the earliest. As there was an office objection for the present delay condonation application, first this present application was given Civil Application [Stamp] No.2369 of 2001. It further appears from the record that, later on applicants removed the office objections raised by the office for this present condonation application and, thereafter, a regular number has given to this condonation application. It is now Civil Application No.2665 of 2002. By submitting this delay condonation application on 16/03/2002, the applicants want to get delay condoned by ex-post facto effect for filing review petition being Misc. Civil Application [Stamp] No.2140 of 2001. As stated earlier, in eye of law aforesaid proposed review petition i.e. Misc. Civil Application [Stamp] No.2140 of 2001 was not an application in view of Section 3 of the Limitation Act, 1963, till present application has been filed. In this application, the applicants have requested this Court to condone the delay for the period upto 17/10/2001. The applicants have not at all explained the delay, which occurred during the period from 17/10/2001 to 16/03/2002 [delay of about five months].
Looking to the aforesaid admitted facts, it cannot be said that the applicants have taken steps with due care and attention and that too with their bonafides. Not a single affidavit has been filed to explain the delay occurred in between 17/10/2001 and 16/03/2002. This aspect is seriously taken into consideration by this Court.
10. The conduct of the applicants is also required to be considered. In para-6 of this application, the applicants have stated as follows ;
"Before filing this review petition before Hon'ble High Court, the petitioners abovenamed had filed a Special Leave to Appeal before Hon'ble Supreme Court of India against the order of Hon'ble Gujarat High Court in Civil Revision Application No.348 of 1988. Thereafter, the abovenamed petitioners have obtained this certified copy of the order of the Supreme Court on 1-5-2001."
In this application, the applicants have not stated as to on which date said Special Leave to Appeal was preferred to the Hon'ble Supreme Court and what happened to said Special Leave to Appeal preferred to the Hon'ble Supreme Court of India. They have not taken any care to state in their application, the number of that Special Leave to Appeal preferred to the Hon'ble Supreme Court of India and the date on which it was filed. They have not stated the result in that proceeding instituted in the Hon'ble Supreme Court. They want to hide something before this Court. One cannot play the game of "hide-and-seek" before this Court for obtaining a discretionary order.
At the out set of the arguments, this Court put a query to Mr.S.M.Shah as to what is the proceeding before the Hon'ble Supreme Court of India and what is the result therein. On being asked, Mr.S.M.Shah submitted a xerox copy of order dated 23/04/2001 of the Hon'ble Supreme Court passed in Special Leave to Appeal (Civil)...CC 2783/2001. Mr.S.M.Shah has vehemently argued that the applicants had moved the Hon'ble Supreme Court for challenging the judgment of this Court dated 04/07/2000 rendered in Civil Revision Application No.348 of 1988 and during the course of hearing, the Hon'ble Supreme Court granted a leave to withdraw that Special Leave to Appeal (Civil)... CC 2783/2001 and as a result of that permission granted the present applicants withdrew that proceeding from the Hon'ble Supreme Court and they have filed proposed review petition. On reading the order dated 23/04/2001 of the Hon'ble Supreme Court, which is furnished by Mr.S.M.Shah, it appears that the order is quite contrary to the submissions made by Mr.S.M.Shah. From the order, it appears that the learned counsel stated before the Hon'ble Court that the petitioners intend to file a review petition in the High Court. This was merely a statement made before the Hon'ble Supreme Court. It was not a request to the Hon'ble Supreme Court to grant a permission to withdraw that Special Leave to Appeal (Civil), with a liberty to file a review petition in the High Court. From the order, it appears that the applicants made a simple request to the Hon'ble Supreme Court to withdraw that Special Leave to Appeal (Civil) and on the basis of that leave to withdraw, the said petition, it was dismissed as withdrawn. Had the applicants brought to the notice of this Court about the aforesaid order perhaps this Court would not have passed an order to issue notice on 19/07/2002. This conduct is also taken into account by this Court.
11. Now I will consider the grounds stated for delay in the application one by one.
In Clause-[A] of para-[3], the applicants have stated their grounds for condonation of delay as follows.
"Due to earth quake natural calamity in this part of the country, State of Gujarat. Petitioners are staying at Rajkot and they also suffered the impact of this earth quake mentally nerves and financially in difficulties to file the review application before the Hon'ble High Court. It takes time to recover from the shock of earth quake."
11.1 It is admitted fact that suit premises are not situated in any part of Kuchchh District. The suit premises are situated in Rajkot City. The petitioners have not stated as to how and in what manner, they have suffered the impact of the earth quake. It is not their case that the suit property in which they are residing was heavily damaged in the earth quake of 26/01/2001. It is very easy to say for person residing in Gujarat that he was affected by the said earth quake. To enable this Court to examine the ground, the applicants ought to have produced some evidence to show that their property was damaged in earth quake and they have suffered a loss. In the aforesaid ground, it is stated that they were in financial difficulties to file the review application. Admittedly, major portion of Kuchchh District received a shock of earth quake on 26/01/2001. As said earlier, the applicants have not stated anything about the proceeding initiated in the Hon'ble Supreme Court of India. They ought to have stated in para-[6] of this present condonation application as to when they moved the Hon'ble Supreme Court and the purpose for moving by Special Leave to Appeal and the result in the said proceeding. They have kept mum for reasons best known to them and impression is created by them that they want to hide something from this Court.On being asked to Mr.S.M.Shah, he has submitted to this Court that the applicants filed Special Leave to Appeal before the Hon'ble Supreme Court of India on 22/02/2001 i.e. within one month from the date of earth quake. If really they were affected by earth quake, certainly they could not have filed Special Leave to Appeal (Civil)...CC 2783/2001, so immediately after earth quake. The fact of filing Special Leave to Appeal (Civil) in the Hon'ble High Court of India itself shows that the applicants were not under financial constraints, as a result of earth quake as alleged in aforesaid ground. The Hon'ble Supreme Court granted a permission to withdraw the said Special Leave to Appeal (Civil) on 23/04/2001 within two months from 22/02/2001. Though review petition was prepared on 17/10/2001, it appears to have been filed on 05/01/2002 and, therefore, on examining the aforesaid fact this Court is of the view that cause stated in Clause-[A] of para-3 of this petition is not "sufficient cause" to condone the delay.
11.2 The applicants have stated in Clause-[B] of para-3 of this petition as follows :-
"There are documents which was to be translated in English and it took sufficient time to get them translated."
If we examine the record of review petition, we find that the applicants have appended only a simple true copy of the judgment dated 04/07/2000 of this Court rendered in English language in Civil Revision Application No.348 of 1988. Except this document, no other documents are produced along with proposed review petition.
In the aforesaid ground, the applicants have not stated as to which document they wanted to get translated into English. It is a vague statement that the documents were to be translated in English and it took sufficient time to get them translated. It is not stated as to what documents were got translated and as to when they could get that documents translated. Thus, this is a complete vague and ambiguous statement made for the sake of making so as to get this application condoned under the guise of liberal approach to be taken by the Court, while deciding the condonation application. Thus, to my mind this is not a "sufficient cause".
11.3 The applicants have stated in Clause-[C] of para-3 of this petition as follows :-
"The petitioners are poor persons and they also living in a critical condition. They are working in private concern with measure salary. At present in this part of area, last two years consecutive fail the monsoon season. Hence, difficult financial condition."
From cause-title of this application, it appears that the applicant Nos.1/2 to 1/4, who are sons of applicant No.1/1, are serving somewhere. The applicants have not stated as to what salary they are drawing from their respective employers. They have not stated the nature of service, which they are doing. The applicant No.1/5 - Jitendra Babulal is doing labour work, as per the cause-title of this application. The opponent No.1 has filed affidavit-in-reply sworn on 26/07/2002, wherein he has stated on oath in para-10 that applicant No.1/5 is not residing in the suit premisses and further that on and from 04/04/1999, he is residing in Flat No.2472 at Miyaninagar, Rajkot and that said flat has been given to him by Rajkot Municipal Corporation. The applicant No.1/5, who has filed rejoinder affidavit sworn on 06/08/2002, has not denied this fact. From the fact stated in para-10 of affidavit-in-reply, a reasonable inference can be drawn that either applicant No.1/5 is serving in Rajkot Municipal Corporation because Flat No.2472 at Miyaninagar, Rajkot has been allotted to him by Rajkot Municipal Corporation or that he has become an owner of that Flat No.2472. Hence, it is very difficult to believe a word of the applicants that they are living in critical condition and that they are working in private concern with meagre salary. They have shown a ground that due to failure of monsoon season consecutively for last two years, they are under difficult financial condition. When the applicants are serving somewhere, there cannot be any nexus between their services and the monsoon season. At this stage, it is again reiterated that they could file a Special Leave to Appeal (Civil) in the Hon'ble Supreme Court of India within one month after the earth quake of 26/01/2001 and, therefore, this ground is also not accepted to be a sufficient ground to condone the delay.
11.4 The applicants have stated in Clause-[D] of para-3 of this petition as follows :-
"That the application for obtaining certified copy of the judgment dated 4-7-2000 has been moved on 24-7-2000 and same became ready on 16-8-2000."
This is merely an assertion of fact. It cannot be said to be any ground for condoning the delay. If really certified copy was available on 16/08/2000 immediately thereafter, they could have filed review petition. As stated earlier, they have filed proposed review petition dated 17/10/2001 on or about 05/01/2002.
12. In para-5 of this application, the applicants have stated as follows :-
One of the petitioners namely Mrs.Ramaben Babubhai Kanada was under treatment and other petitioners were engaged as attendant in the treatment of their mother Ramaben. Therefore, petitioner Ramaben Babubhai and other petitioners could not file this Review petition within the period of limitation. Medical certificate is attached herein at Annexure-A." Annexure-A is dated 06/03/2002. As per this certificate, Ramaben, aged about 70 years was suffering from multipole joint pain and arthritis and spondylitis.
It is also stated that she is undergoing treatment of Dr.Mahesh P. Maru since one and half years as O.P.D. basis. A hand written writing has been added that she is almost bed ridden and needs attendance for nursing care. From the aforesaid ground, it appears that it is a say of the applicants that applicant No.1/1 is bed ridden since on or about 06/09/2000, as Doctor has stated that she is under his treatment since one and half years. In the aforesaid ground, it is alleged that other applicants were nearby their mother round the clock for 24 hours. The applicant Nos.1/2 to 1/5 are serving. If really, they have taken leave from service for nursing their mother, they could have produced a certificate from their respective employers that they were on leave for particular periods. On one side, they can serve with the employers and on the otherside, they say that they were with their mother for nursing her round the clock for 24 hours. If really this was a position, then they could not have preferred a Special Leave to Appeal (Civil) in the the Hon'ble Supreme Court of India on 22/02/2001 and, therefore, this ground does not appear to be genuine. It is merely stated for the sake of stating with a view to create a sympathy from the Court.
13. In the case of Ramlal and others Vs. Rewa Coalfields Ltd., reported in AIR 1962 Supreme Court 361, it has been held that in construing Sec.5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by S.5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.
14. Except the aforesaid grounds, no other ground has been stated in this application. In the case of Municipal Corporation of Ahmedabad through the Municipal Commissioner Vs. Voltas Limited [Supra], it has been held that the phrase "sufficient cause" as occurring in Section 5 of the Limitation Act pertains to the establishment of the appropriate facts before the Court to which the Court can apply its mind and arrive at a conclusion regarding the sufficiency of the cause or otherwise. In essence, therefore, the phrase "sufficient cause" is not a question of principle, but is a question of fact. Hence, whether to condone the delay or not depends upon the facts and circumstances of each case as "sufficient cause" for condonation of delay depends only on the facts placed by the applicants before the Court. The principle in law only is that the Courts are required to take a liberal view while considering the facts constituting the sufficiency of the cause, on the basis of which condonation of delay is sought. This does not necessarily amount to saying that all applications for condonation must be granted. This is necessarily within the discretionary jurisdiction of the Court, and the Court deciding the application for condonation would necessarily exercise its discretion judicially in the light of the well established principles, as regards the appreciation of the relevant facts. It is further held that while deciding the question of sufficiency of cause the Court can only examine the submissions of the parties on the basis of the facts averred and made out in the application for condonation. The Court cannot decide the sufficiency of the cause de hors the facts pleaded and made out. Whether the cause shown is sufficient or otherwise, cannot be converted into a question of principle. The phrase "sufficient cause" involves only question of fact to be considered by the court dealing with the application for condonation of delay, and in considering the sufficiency of the cause, no question of principle is involved, except that a liberal view should be adopted in the examination and interpretation of the facts which seek to establish "sufficient cause".
15. Keeping in mind the aforesaid legal position with regard to examination of facts to come to a conclusion as to whether the applicants had "sufficient cause" to file a proposed review petition after 440 days, I have examined the grounds stated by the applicants in this application itemwise hereinabove. I find that not a single ground is "sufficient cause" for condonation of delay for 440 days, even if a liberal view is adopted in examination and interpretation of the facts stated in paras-3 and 5 of this application. I have examined the facts stated in paras-3 and 5 of this application coupled with the conduct of the applicants stated earlier and I am of the view that this is an application of applicants, who have courage to flout the undertaking given to this Court. If really their case is genuine one they could have fairly submitted to this Court that we have handed over the suit premises to the opponent No.1, as per the undertaking given by them to this Court and then they could have requested this Court to consider their review application on merits and in case, if review petition is allowed certainly this Court has ample power under the provisions of Civil Procedure Code to restore the possession of the suit premises to the applicants. They have not chosen this correct procedure and they have taken a course of tactics to flout the decree of the Civil Court, which has been confirmed by the District Court, Rajkot, this Court [High Court] and even by the Hon'ble Supreme Court. Under these circumstances, this Court is of a view that this is not a fit case in which this Court should exercise a discretionary jurisdiction in favour of the applicants by condoning delay of 440 days as suggested by the applicants.
16. Mr.S.M.Shah, learned advocate for the applicants has tried to touch the merits of the case stated in the proposed review petition. It is the case of the applicants that during the pendency of Regular Civil Appeal No.45 of 1984 before the District Court, Rajkot, there was a subsequent change in events in favour of the plaintiff - Landlord disentitling him to possession of the suit premises on the ground falling under Section 13(1)(g) read with Section 13(2) of the Rent Act. Mr.S.M.Shah has made a submission on the basis of facts stated in para-5 of the proposed review petition. As per his say, one other tenant named Surji Ganatra using similar type of premises and who was in possession of another block had handed over the vacant possession of the block in his possession to the plaintiff/landlord on 21/05/84 in private settlement. It is his further say that the plaintiff/landlord had filed Regular Civil Suit No.783 of 1984 against trespasser Lakha Bijal Bharvad, which was subsequently dismissed on 16/01/1998 and it shows collusion between Lakha Bijal Bharvad and present respondent No.1 and thus the decree obtained by fraud and misrepresentation by the plaintiff/landlord in Rent Suit No.345 of 1981 is liable to be set aside. It is also the say of Mr.Shah that as a general rule, in Cooperative Housing Society, Commercial Use will not be allowed/permitted and that Rajkot Municipal Employee Cooperative Society being a Cooperative Housing Society cannot allow the occupant to use the premises for commercial purpose. It is stated by him that two shops vacated in the Panchnama. It cannot be said to be shop. As per his say, they are in fact rooms and not shops. Mr.S.M.Shah has argued that when the plaintiff/landlord has filed a suit on the ground of personal bonafide requirement i.e. on the ground falling under Section 13(1)(g) of the Rent Act, then subsequent events taken place after passing of decree are required to be taken into consideration at an appeal stage or even upto a revision stage. He has further argued that the learned District Judge has not taken into consideration the subsequent events as stated by him earlier and, therefore, the judgment of this Court requires to be reviewed. By arguing in this way, Mr.Shah has submitted that the applicants have very good case in review petition and, therefore, also condonation application requires to be allowed by condoning delay of 440 days.
17. In the case of Municipal Corporation of Ahmedabad through the Municipal Commissioner Vs. Voltas Limited [Supra], the Full Bench of this Court has held in Clause-3 of para-31 as follows :
"The merits of the substantial case in respect of which condonation is sought, cannot override the provisions of Sections 3 and 5 of the Limitation Act and the merits of the case cannot be regarded as the sole factor or a predominant factor while adjudicating upon the sufficiency of the cause for condonation of delay"
Under the circumstances, the merits of the case so far as it relates to the proposed review petition cannot be considered while deciding the condonation application. Still, however, when Mr.S.M.Shah has vehemently argued by touching the merits of the case, this Court is constrained to deal with the merits of the case on broad aspects.
In the case of Patel Narshi Thakershi and others Vs. Pradyumansinghji Arjunsinghji, reported in AIR 1970 Supreme Court 1273,it has been held in para-4 as follows:
"It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication."
In the case of S.J.S. Fernandes Vs.V. Ranganayakulu Chetty, reported in AIR 1953 Madras 236, it has been held that so far as the invocation of the inherent powers of court is concerned, it has been held repeatedly and has now become well settled law that the power to review is not an inherent power of a judicial officer but such a right must be conferred by Statute. This is based upon the common sense principle that prima facie a party who has obtained a decision is entitled to keep it unassailed unless the Legislature has indicated the mode by which it can be set aside. A review is practically the hearing of an appeal by the same officer who decided the case. Therefore, the course of decisions in this country has been to the effect that a right to review is not an inherent power.
18. Keeping in mind the scope an ambit of review petition as per the above legal position, now it is required to be considered as to whether review petition under Section 114 of the Civil Procedure Code read with Order-47, Rule-1 of the Civil Procedure Code is maintainable for getting reviewed the judgment of this Court rendered in Civil Revision Application No.348 of 1988. At the cost of repetition, it is again stated that opponent No.1/plaintiff/landlord filed a Rent Suit for a decree of eviction for suit premises under the provisions of the Rent Act. The grounds, which were made out by the plaintiff/landlord were the grounds falling under Section 13(1)(g) read with Section 13(2) of the Rent Act and also under Section 12(3)(a) of the Rent Act. The competent Court having jurisdiction under Section 28 of the Rent Act passed a decree of eviction in favour of the plaintiff/landlord and executable against the defendants/tenants. The defendants/tenants preferred an appeal under Section 29(1)(b) of the Rent Act to the District Court, Rajkot to which a jurisdiction has been coffered on it to hear and decide the appeal under Section 29(1)(b) of the Rent Act. The learned Judge of the District Court, Rajkot after hearing learned advocates for both the parties dismissed the appeal preferred by the defendants/tenants, confirming the judgment and decree of eviction passed by the Competent Court as per Section 28(1)(b) of the Rent Act. Sub-Section (2) of Section 29 of the Rent Act makes it very clear that no further appeal shall lie against any decision in appeal under Sub-Section (1) meaning thereby there is no provision with regard to second appeal as against the judgment and decree passed by the District Court in aforesaid appeal. As per sub-Section (2) of Section 29 of the Rent Act applicable in Gujarat, the jurisdiction is vested in the High Court for the purpose of satisfying itself that any such decision in appeal was according to law and High Court is entitled to call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit. Therefore, the judgment dated 04/07/2000 rendered by this Court in Civil Revision Application NO.348 of 1988, which is sought to be reviewed is a judgment rendered by this Court in exercise of powers conferred on it under Section 29(2) of the Rent Act. In view of this, the entire proceeding carried upto this Court is a proceeding under a special statute namely the Rent Act. If we examine the provisions of the Rent Act on and from Section 29 onwards, we find that there is no provision which specifically or by necessary implication confers a jurisdiction on this Court to review its own decision. Under the circumstances, this Court is of the view that the proposed review petition is not at all tenable in law and, therefore, also there is no slightest case much less a good case in favour of the present applicants.
19. In case of Ratilal Bhanushankar Jani Vs. Durlabhdas Ranchhoddas Solanki, reported in [1967-68] V GLT 156, to which an attention was drawn to Mr.S.M.Shah, it has been held as follows :-
"In the scheme of hierarchy of Courts before which a suit can be filed and then appeal can be taken and the revision application can be filed as set out in the Bombay Rent Control Act, the District Court or the Small Causes Court's Appellate Bench is the final Court of Appeal and the High Court's powers in dealing with Rent Control matters are strictly limited to the provisions of Section 29 as amended by the Gujarat Legislature."
In that case a question arose as to before whom the application for review should be made, viz., before the High Court or before the District Court. This Court [Coram : B.J.Divan,J.] has held that the application for review should be made to the Court in whose judgment the error apparent on the fact of the record has crept in. It has been further held that the High Court's decree is not going to come in the way of the defendant-tenant because the decree of the District Judge is not merged in the decree of the High Court. It is further held that when the High Court summarily rejected the Civil Revision Application of the defendant-tenant, all that it did was to refuse to interfere with the order passed by the District Court; but unlike an appeal, the decree of the District Judge was not merged in the order passed by the High Court. In view of this, it was held that the decree which remained as on day of decision in that cited case, was the decree of the District Judge and not the decree or order of the High Court.
20. The most material ground on which the applicants have filed a proposed review petition is to the effect that after the decree of eviction was passed by the Rent Court, subsequent events occurred and as stated in para-5 of the proposed review petition namely Misc. Civil Application [Stamp] No.2140 of 2001, one that other tenant named Surji Ganatra using similar type of block handed over the vacant possession of that block in his possession to the present plaintiff/landlord, on 21/05/1984 in private settlement and in view of this subsequent event, the requirement of the landlord was fulfilled and as such the entire suit has become infructuous. This alleged subsequent event occurred during the pendency of Regular Civil Appeal No.45 of 1984 pending in the District Court. It is also the case of the defendants/tenants that during the pendency of the aforesaid Regular Civil Appeal No.45 of 1984, the plaintiff/landlord had filed Regular Civil Suit No.753 of 1984 against the trespasser - Lakha Bijal Bharwad, which was subsequently dismissed on 16/11/1998 and it shows collusion between Lakha Bijal Bharwad and present opponent No.1 i.e. plaintiff/landlord. It is the case of the applicants that the decree obtained by way of fraud and misrepresentation from the trial Court is liable to be set aside. Mr.S.M.Shah has emphathetically argued that even upto the Civil Revision Application, this Court is expected to take into consideration the subsequent events, which took place after landlord obtained a decree of eviction on the ground of personal bonafide requirement and for this submission, he has placed reliance on two authorities;
[1] In Hasmat Rai and another Vs. Raghunath Prasad, reported in AIR 1981 S.C. 1711 wherein it has been held that where possession is sought for personal requirement it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. If in the meantime events have cropped up which would show that the landlord's requirement is wholly satisfied then in that case his action must fail and in such a situation it is incorrect to say that as decree or order for eviction is passed against the tenant he cannot invite the Court to take into consideration subsequent events. The landlord's need must be shown to continue to exist at appellate stage.
It may be noted that in the present case, the applicants want to get reviewed the judgment of this Court rendered in Civil Revision Application No.348 of 1988 filed by the applicants under Section 29(2) of the Rent. The judgment rendered by the Revisional Court cannot be equated with the judgment rendered by the Appellate Court.
[2] In Gulabbai Vs. Nalin Narsi Vohra and others, reported in AIR 1991 S.C. 1760, wherein it has been held that in appropriate cases events subsequent to the filing of the eviction suit can be taken notice of and can be duly considered by the court provided the same is relevant in determining the question of bona fide requirement.
21. Mr.A.R.Thakkar, learned advocate for the opponent No.1 has vehemently argued that the crucial date of the bona fide requirement of the landlord is the date of the application for eviction and, therefore, in no case the subsequent events can be taken into consideration, even by the Appellate Court or the Revisional Court. For this submission, he has placed reliance on the case of Gaya Prasad Vs. Pradeep Srivastava, reported in (2001) 2 Supreme Court Cases 604, where it has been held that the crucial date for deciding the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post-petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in the litigative slow-process system subsists. During 23 years, after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. It would be pernicious and unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period. It has further held that the judicial tardiness, for which unfortunately the Indian system has acquired notoriety, causes the lis to creep through the line for long long years from the start to the ultimate terminus, is a malady afflicting the system. During this long interval many many events are bound to take place which might happen in relation to the parties as well as the subject-matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system it shatters the confidence of the litigant, despite the impairment already caused.
22. In view of what is stated hereinabove, neither the Appellate Court nor the Revisional Court can take into consideration the subsequent event occurred after the judgment and decree of eviction passed by the trial Court in favour of the plaintiff/landlord executable against the defendants/tenants in the month of December, 1983. This authority cited by Mr.J.R.Nanavati is latest one in point of time. It is an authority of a case decided by the Hon'ble Supreme Court and, therefore, I do not hesitate to place reliance on the principles laid down in the aforesaid case. Whatever principle laid down in the aforesaid cited authority by Mr.A.R.Thakkar is a law of the land. It cannot be ignored. Under these circumstances, submission of Mr.S.M.Shah that at the revisional stage also the High Court can take into consideration the subsequent events occurred after judgment and decree of eviction passed in favour of the plaintiff/landlord was passed by the trial Court falls to ground. The grounds stated in proposed review petition of which the delay is sought to be condoned are not legal grounds for reviewing, the judgment of this Court rendered in Civil Revision Application No.348 of 1988 which was preferred under Section 29(2) of the Rent Act.
23. In view of what is discussed hereinabove, the applicants have no slightest favourable or good case in proposed review petition.
Under the circumstances, the present delay application is devoid of merits because the causes shown in para-3 of this application are not sufficient causes for condoning the delay. Looking to the lethargy of applicants for prosecuting proposed review petition further in accordance with law and inaction on the part of the applicants for filing the delay application after about five months show the absence of bona fides on the part of applicants. The conduct of all the applicants are required to be considered and taken into account because these are the applicants, who have not yet handed over the possession of the suit premises to the opponent No.1/plaintiff/landlord, though they have given an undertaking to this Court to vacate the suit premises on or before 04/07/2002. This is a month of September, 2002. The litigation started in the Year 1981. The plaintiff/landlord obtained a decree of eviction in his favour in the Year 1984 and still he is unable to enjoy the fruits of that decree because of proceedings initiated by the applicants one, by one in one or other forum, though they have lost battle upto the Hon'ble Supreme Court of India.
24. I am of the view that there cannot be a better case to show gross abuse of process of the Court, than this case. As submitted by Mr.J.R.Nanavati, learned advocate for the opponent No.1 that as the plaintiff/landlord is a pensioner getting meagre amount of pension, he is unable to bear the expanses at every stage where he has been dragged into the litigation by the applicants. While summing up the arguments of Mr.J.R. Nanavati, the learned advocate for the opponent No.1 has argued that looking to the gross abuse of process of the Court on the part of the applicants, the opponent No.1 be awarded Rs.25,000-00 [Rupees Twenty Five Thousand Only] as costs out of which an amount of Rs.15,000-00 [Rupees Fifteen Thousand Only] should go to the Legal Aid and Rs.10,000-00 [Rupees Ten Thousand Only] be awarded to the opponent No.1. Looking to the facts and circumstances of the present case, I have not come across this type of gross abuse of process of the Court, during my judicial career of 32 years. This is a fit case in which opponent No.1 should be awarded a reasonable amount of exemplary costs from the present applicants. Looking to the facts and circumstances of the case, ends of justice would be met if opponent No.1 is awarded Rs.10,000-00 as costs from the applicants.
25. In the result, this present delay condonation application under Section 5 of the Limitation Act, 1963, which is devoid of merits is required to be dismissed with costs and accordingly it is dismissed with a direction to the applicants that they shall pay Rs.10,000-00 [Rupees Ten Thousand Only] as costs to the opponent No.1/plaintiff/landlord, within two months, from the date of this order. Notice discharged.