Madras High Court
M/S. Bharat Petroleum Corporation Ltd vs C.S.Prakasa Rao on 4 August, 2014
Author: S.Vimala
Bench: S.Vimala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.08.2014 CORAM THE HONOURABLE Mrs. JUSTICE. S.VIMALA C.R.P. (NPD) No.3888 of 2013 and M.P.Nos.1 of 2013 & 1 of 2014 M/s. Bharat Petroleum Corporation Ltd., Rep. By its Managing Director, P.Anilkumar, Chennai 600 006 ... Petitioner / defendant Vs. C.S.Prakasa Rao ... Respondent / plaintiff Prayer :- Civil Revision Petition (NPD) filed under Section 115 of the Code of Civil Procedure against the judgment and decree, dated 18.10.2011, in I.A.No.265 of 2011 against O.S.No.398 of 2007 on the file of the District Munsif Court, Thiruvottiyur, Chennai. For Petitioner : Mr. Krishna Srinivas, for, M/s. S.Ramasubramaniam Associates For Respondent : Mr. N.S.Manoharan - - - O R D E R
Being liberal in condoning the delay, being the rule, and remaining non-liberal, being an exception, the guiding principle being the promotion of substantive justice, whether the trial court should have dismissed the petition to condone the delay in filing the application claiming benefits under Section 9 of the City Tenants Protection Act?
1.1. While exercising the discretion to condone the delay, whether delay per se should be considered as a prejudice;
or the likelihood of the fair trial, still remaining possible;
and the deleterious effect that the delay would have on the plaintiff's / respondent's ability to defend the claim;
would be the relevant criteria to be considered?
Brief Facts:-
2. The plaintiff / landlord / respondent herein demised the land measuring 15,000 sq.ft., in Survey No.1110 at Moolakadai Madhavaram on a long term lease for two years with effect from 01.09.1990 at the terms agreed in the registered lease deed, dated 14.01.1992. The purpose of tenancy is to locate the retail outlet for the purpose of the revision petitioner's / defendant's petroleum product.
3. The plaintiff / respondent herein filed the suit for eviction against the defendant in O.S.No.398 of 2007 on the ground of, (a) determination of lease by efflux of time with expiry of lease on 03.08.2010 and (b) default in the payment of rents.
4. The suit filed by the respondent / plaintiff was decreed on 22.01.2014, granting three months time, for the tenant, to vacate. The defendant filed an application in I.A.No.265 of 2011 praying to condone the delay of 780 days in filing the application under Section 9 of the City Tenants' Protection Act, 1921. That petition was opposed on the ground that the defendant was not a tenant and that the tenancy has been terminated; the delay was 1092 days and not 780 days. That petition came to be dismissed on 18.10.2011. Challenging the same, this Civil Revision Petition has been filed.
5. The main ground of attack by the learned counsel for the plaintiff / respondent is that the defendant / petitioner has not explained the cause of delay of 1092 days and that the affidavit does not disclose any reason to condone the delay of 1092 days. The further contention is that the defendant / petitioner exhibited supine indifference and total callousness throughout the proceedings and therefore, there are no grounds to condone the delay.
6. Per contra, the learned counsel for the defendant / Revision Petitioner submitted that there are justifiable grounds, with acceptable reasons, to condone the delay and that there had been negotiations for settlement of the issue.
7. The reasons stated for condonation of delay in the affidavit filed in support of I.A.No.265 of 2011 and the orders passed by the Court need to be considered.
8. The supporting affidavit alleges many reasons to explain the delay in filing the application under Section 9 of the City Tenants' Protection Act, 1921:
(i) Exparte decree was passed against the defendant on 05.09.2008, (i.e., on the date fixed for appearance and for filing of counter). Application was filed to set-aside the exparte decree along with the petition to condone the delay of 324 days and that application was dismissed. Challenging the same, a Civil Revision Petition was filed in CRP No.3796 of 2009. The said Civil Revision Petition was allowed, vide order dated 19.12.2009, with a condition to pay a sum of Rs.5,000/-, as costs, to the learned counsel for the plaintiff. The cost paid through cheque was not accepted on the ground that the plaintiffs were intending to take up the matter before the Supreme Court. Only after informing that the Supreme Court has confirmed the order of the High Court, the cost paid was accepted by the learned counsel for the plaintiff.
(ii) The execution petition in E.P.No.9 of 2009 was also closed by this Court, consequent to the order passed in the said Civil Revision Petition. Due to the long round of pending litigation, the petitioner was not able to file Section 9 application under the City Tenants' Protection Act, within the stipulated time.
(iii) The petition seeking relief under Section 9 of the City Tenants Protection Act was made ready and which when given to the counsel had been wrongly placed in another bundle and hence, it could not be filed in time.
9. A perusal of the order passed by the Court below would reveal that the trial court was not convinced of the reasons stated for the belated filing of the application. It has also been mentioned that calculation of number of days of delay, as 780, was not correct and the delay, in fact was 1092 days and that each day's delay have not been explained by the petitioner.
10. Therefore, the issue to be considered in this Civil Revision Petition is, whether there are sufficient cause to condone the delay.
11. Learned counsel for the Revision Petitioner relied upon the following decisions, in order to support the proposition that a petition under Section 5 of the Limitation Act is maintainable, while seeking the relief under Section 9 of the City Tenants' Protection Act, and also towards the proposition that the approach of the Court should be pragmatic and not technical:
(i) 2001 (4) CTC 321 (Alamelu Ammal, T v. Megalakshmi).
20 .... In the subsequent decisions, staring from N.S.Ramaswami, J., in P.S.Angalya Raja v. A.K.D.Alagaraja, 1976 (89) L.W., 108, ending with Sathar Sayeed, J., in M/s. Jayabharatham & Co., v. Susila Chari, 1985 (I) M.L.J. 63, all the learned Judges after noting that there is no express exclusion of the applicability of the provisions of Limitation Act and in view of Section 29 (2) of the Limitation Act held that, Section 5 of the Limitation Act is applicable even for application filed under Section 9(1)(a) (i) and if there is sufficient cause, the court is competent to condone the delay and consider the claim of the tenant in an ejectment suit filed by the landlord.....
(ii) 2005-4-L.W.190 (Haji Abdul Jaleel v. P.Janardhanam).
12. In the suit for ejectment, the Defendant has the right to file an application under Section 9 of the City Tenants' Protection Act. If the delay is not condoned, enabling the Defendant to file the application under Section 9 of the City Tenants' Protection Act, it would cause serious prejudice to him. An opportunity is to be afforded to him to put forth his case.
(iii) (2010) 14 Supreme Court Cases 419 (Indian Oil Corporation Ltd. v. Subrata Borah Chowlek).
10. It is manifest that though Section 5 of the Limitation Act, 1963 envisages the explanation of delay to the satisfaction of the Court, and makes no distinction between the State and the citizen, nonetheless adoption of a strict standard of proof in case of the Government, which is dependent on the actions of its officials, who often do not have any personal interest in its transactions, may lead to grave miscarriage of justice and therefore, certain amount of latitude is permissible in such cases.
12. It is pointed out that even when a public Corporation is seeking condonation of delay, it is also entitled to certain latitudes. What are the latitudes permissible have to be considered by this Court.
13. The defendant is a company engaged in the manufacturing, distribution and marketing of petroleum products, which include petrol, diesel, additives and allied products. For the purpose of selling all those products to the customers they run a retail outlet in the suit premises. The company had been in possession of the premises as a long term lesee and the tenancy had been commenced from 14.01.1992. There had been negotiations for settlement from 19.11.2013 to 24.06.2014 and various letters addressed on 19.11.2013, 21.11.2013, 24.06.2014 have been filed to show that there had been an earnest attempt to settle the matter. The order passed by this Court on one occasion reads thus:
The learned counsel for the petitioner briefed the court regarding the issues that have arisen in this Civil Revision Petition and submitted that the revision petitioner wants to explore the possibility of striking a deal with the respondent.
Learned counsel for the respondent does not oppose adjournment of the case by two weeks, so as to enable the petitioner to start the negotiation and to find out the feasibility of arriving at a negotiable settlement. Hence, the matter is to be listed on 17.02.2014.
14. While deciding, whether the delay has to be condoned or not, the nature of the relief claimed in the plaint, the nature of the defence taken and the benefits, that could be sought under Section 9 of the City Tenants Protection Act or in the alternative, to make a claim of compensation under Section 3 of the City Tenants' Protection Act, have to be kept in mind.
15. The fact remains that the application has been taken out, while the suit was pending and that it was not filed after the passing of the decree. Under ordinary circumstances, the trial court itself would have condoned the delay. The predicament placed on the shoulders of the trial court had been that there was a conditional order passed by this Court to dispose of the suit within the prescribed time frame. It appears that the plaintiff filed an application under Order VI Rule XVII CPC, while the defendant had taken out an application under Section 5 of the Limitation Act, seeking benefits under Section 9 of the City Tenants' Protection Act. Having felt caught inside a triangle, the trial court has chosen to dismiss the petition. Any Court put under the necessity of disposing of the suit within a time frame would have taken only that kind of view. But, the fact remains that there is a distinction between the claim made to condone the delay, to escape from the consequences of the decree and a claim made to condone the delay in order to assert the rights available under a statute afresh.
16. The condonation of the delay is the discretion of the Court and such discretion is to be exercised if the delay is within certain limits. Length of delay is immaterial, but the acceptability of explanation is material. If the explanation does not indicate any mala fides or dilatory strategy, then the Court should be liberal in condoning the delay. In other words, while exercising the discretion, the Court has to adopt a pragmatic approach and the court must have regard to all the circumstances of the case. The prejudice to the other side is one important consideration, while the Court adopting a liberal approach.
17. The prejudice to the plaintiff / respondent includes the deleterious effect that the delay in bringing proceedings would have on the ability to defend the claim. The crucial question in every case appears to be whether, given the passage of time, it is still possible to have a fair trial.
18. Considering the claim made by the petitioner that the delay should be condoned in the light of the parameters indicated above, the conclusion would be that the delay cannot have / would not have any deleterious effect upon the ability of the plaintiff to have a fair trial. Ability to defend would not get diminished because the claim is made in a pending suit. On the filing of the plaint itself, the plaintiff would have started collecting / maintaining records and as the claim is made in the pending suit, there would not be any prejudice to the plaintiff, if the delay is condoned. Prejudice to the limited extent of wasting of time, energy and money should be considered and having regard to the facts and circumstances of the case, those loss can be compensated by ordering cost of Rs.20,000/- (Rupees Twenty thousand only).
19. The trial court has mentioned that it is only because of the conduct of the defendant there had been an exparte decree and while it was taking steps to get it sets-aside, the inconveniences arising therefrom cannot be stated to be grounds for condoning this delay.
19.1. This reason may appear to be acceptable if looked into superficially, but not so when looked into deeply. The Public Sector Undertaking faced with an exparte decree of eviction, being placed under the necessity of serving the public at all 24 hours, would have been in tremendous pressure to get the exparte decree sets-aside. When there had been such insurmountable pressure, it would not have been possible to think of the application under Section 9 of the City Tenants Protection Act. Therefore, the contention that the Corporation has been concentrating on the petition to set-aside the exparte decree might have been true, atleast to certain extent.
19.2. It is represented that this petition itself is infructuous, as already first appeal is pending before the appellate court and as such, there is no decree to be set-aside.
19.3. This contention, which is highly technical, cannot be accepted, as appeal itself is the continuation of the suit. The decree has not become final and so long as the appeal is pending, the decree is also liable to be modified / changed / confirmed / set-aside. Therefore, pendency of the appeal cannot be an impediment for the Court to consider the justification to condone the delay.
19.4. As the decree for eviction is subject to availability / non-availability of the rights under Section 9 of the City Tenants Protection Act, the decree is set-aside.
19.5. In as much as the petition for condonation of delay has been ordered to be allowed, subject to payment of costs, the decree would stand set-aside on payment of costs.
20. Therefore, this Court is of the view that the petition to condone the delay can be allowed, subject to payment of costs of Rs.20,000/- (Rupees twenty thousand only) within a period of two weeks from the date of receipt of a copy of this order. On such payment, the delay sought to be condoned in I.A.No.265 of 2011 would stand condoned. The trial court shall decide the suit, along with the application under Section 9 of the City Tenants Protection Act, on merits and in accordance with law.
21. This Civil Revision Petition is allowed, in the terms referred to above. No costs. Consequently, the connected MPs are closed.
04.08.2014 Index : Yes / No Web : Yes / No srk S.VIMALA, J., srk To
1. The District Munsif Court, Thiruvottiyur, Chennai
2. The Section Officer, V.R.Section, Madras High Court, Chennai - 104 Pre-Delivery Order in CRP (NPD) No.3888 of 2013 & M.P.Nos.1 of 2013 & 1 of 2014 04.08.2014