Rajasthan High Court - Jodhpur
Suresh Chandra Tamboli vs Lrs Of Haji Mushtaq Hussain & Ors on 19 January, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 5190 / 2014
Suresh Chandra Tamboli S/o Shri Muthara Das Tamboli, aged
about 55 years, resident of 28, Karmshil Marg, Brahmpuri,
Udaipur.
----Petitioner
Versus
Legal Representatives of Haji Mushtaq Hussain
1. Smt. Ajab Bano W/o late Shri Haji Mushtaq Hussain, resident of
5, Neemuch Kheda, Dewali, Udaipur.
2. Ali Asgar Palliwala S/o late Shri Haji Mushtaq Hussain, resident
of German Press Company, WLL, AL. RAI (Shuwaikh) PO Box
No.29290, Safat 13153, Kuwait.
3. Smt. Fatima W/o Safuddin, D/o late Shri Haji Mushtaq Hussain,
resident of Dungarpur.
4. Smt. Sakino W/o Khojima Khandwala D/o late Shri Haji
Mushtaq Hussain resident of Dungarpur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. J.L. Purohit, Sr. Advocate assisted by
Mr. N.R. Budania
For Respondent(s) : Dr. Sachin Acharya
_____________________________________________________
HON'BLE MS. JUSTICE NIRMALJIT KAUR
Reportable Order
19th /01/2018
The present writ petition has been filed against the order dated 29.05.2014 passed by the Appellate Rent Tribunal, Udaipur vide which the appeal against the order of the Rent Tribunal, Udaipur dated 04.02.2009 was rejected.
The respondent - landlord filed an application under Section 9 of the Rajasthan Rent Control Act, 2001 against the petitioner - tenant for his eviction from the shop in dispute. The said (2 of 8) [CW-5190/2014] application under Section 9 of the Act was allowed vide an ex parte judgment dated 04.02.2009. The petitioner preferred an application under Order 9 Rule 13 CPC for setting aside the ex parte judgment and decree before the Rent Tribunal, Udaipur. The Rent Tribunal, Udaipur dismissed the said application on 20.02.2010. The appeal against the order dated 20.02.2010 too was dismissed on 05.09.2011. The petitioner - tenant preferred a writ petition No.8615/2011 before this Court. The said writ petition came to be dismissed on 04.04.2014. After dismissal of the said writ petition, the petitioner filed a regular appeal challenging the order dated 04.02.2009 on merits. Along with the said appeal, an application under Section 27 of the Rajasthan Rent Control Act, 2001 and Sections 5 and 14 of the Limitation Act was also filed. An application under Order 41 Rule 27 CPC was also filed. The Appellate Rent Tribunal dismissed the application under Section 5 of the Limitation Act vide order and judgment dated 29.05.2014 and thereby also dismissed the appeal filed by the petitioner.
While praying for setting aside the impugned order and judgment dated 29.05.2014, Mr. J.L. Purohit learned Sr. counsel for the petitioner - tenant contended that the application under Section 5 of the Limitation Act has been rejected without considering that there was sufficient reason on record for condonation of the delay. All this while, the petitioner was bonafidely pursuing the remedy against the order rejecting the application under Order 9 Rule 13 CPC. The petitioner immediately filed a regular appeal on 29.04.2014 against the (3 of 8) [CW-5190/2014] judgment dated 04.02.2009 after the dismissal of the Writ Petition No.8615/2011 on 04.04.2014. Reliance was placed on the judgment rendered by the Apex Court in the case of Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department & Ors. reported in (2008) 7 SCC 169 as also in the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & Ors. reported in (2013) 12 SCC 649 and M.P. Steel Corporation Vs. Commissioner of Central Excise reported in (2015) 7 SCC 58 to contend that the period spent in pursuing another remedy should be set off while counting the period of limitation. It was further contended that instead of condoning the delay on the permissible grounds as above, the Appellate Rent Tribunal simply dismissed the same on the ground that the very appeal was not maintainable. Reliance was also placed on a judgment rendered in the case of Bhanu Kumar Jain vs. Archana Kumar and another reported in AIR 2005 SC 626 to contend that the petitioner had the remedy of availing both the options of pursuing the application under Order 9 Rule 13 CPC for setting aside the ex parte order as well as of filing regular appeal against the judgment. The petitioner had, accordingly, filed an appeal after exhausting the remedy under Order 9 Rule 13 CPC. While dismissing his application under Order 9 Rule 13 CPC, the merit was never considered, hence, the regular appeal should have been decided on merits instead of wrongly dismissing the same being not maintainable.
Heard.
(4 of 8) [CW-5190/2014] The Apex Court in the case of Bhanu Kumar Jain (supra) clarified that when an ex parte decree is passed, the defendant has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code. While saying so, there appears to be a word of caution requiring both to be filed simultaneously by observing as under:
"He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the Trial Court merges with the order passed by the appellate court,having regard to Explanation appended to Order 9, Rule 13 of the Code a petition under Order 9, Rule 13 would not be maintainable. However, the Explanation 1 appended to said provision does not suggest that the converse is also true."
In para 37 of the said judgment, the Court observed that the same contention cannot be raised in the application under Order 9 Rule 13 CPC as well as in the First Appeal i.e. once an application under Order 9 Rule 13 CPC is dismissed, it cannot raise the objection in the First Appeal that the appellant was not heard on merits by observing as under:
"We have however, no doubt in our mind that when an application under Order 9, Rule 13 of the Code is dismissed, the defendant can only avail a remedy available thereagainst, viz, to prefer an appeal in terms of Order 43, Rule 1 of the Code. Once such an appeal is dismissed, the Appellant cannot raise the same contention in the First Appeal. If it be held that such a contention can be raised both in the First appeal as also in the proceedings arising from an application under Order 9, Rule 13, it may lead to conflict of decisions which is not contemplated in law."
(5 of 8) [CW-5190/2014] From the above, it is evident that
(a) In case of an ex parte decree, the defendant can always avail of the two remedies available to him i.e. either to file an application under Order 9 Rule 13 for setting aside the ex parte decree or to file a regular appeal on merits.
(b) He can also avail of both the remedies simultaneously.
(c) In case, an appeal is dismissed on merits, then the application under Order 9 Rule 13 will not be maintainable.
(d) However, in case the application under Order 9 Rule 13 is dismissed, he can still continue and pursue the regular appeal.
(e) In case the application under Order 9 Rule 13 is dismissed, he cannot raise the contention that he was not heard on merits while pursuing his regular appeal.
There is no doubt that the regular appeal cannot be dismissed on the ground that it was not maintainable, and accordingly in the present case, much stress has been laid on the observation of the Appellate Rent Tribunal in its order dated 29.05.2014 that the appeal was not maintainable, however, the order requires to be read in its entirety to understand as to whether the same was dismissed as not maintainable or on account of the fact that the same was highly belated and beyond (6 of 8) [CW-5190/2014] the period of limitation prescribed for filing an appeal. A perusal of the impugned order shows that what weighed upon the Appellate Rent Tribunal while dismissing the appeal was actually the delay of 05 years in filing the same. Admittedly, there was a delay of more than 1825 days i.e. almost 5 years & one month in filing the appeal. The application under Section 5 of the Limitation Act having been dismissed, the appeal obviously cannot be entertained. Hence, the argument of the learned counsel for petitioner deserves to be rejected.
At this stage, learned counsel for the petitioner argued that the Appellate Rent Tribunal should have set off the period spent in pursuing his remedy under Order 9 Rule 13 CPC. He had diligently pursued and bonafidely availed the said remedy. He immediately filed the present appeal after dismissal of the Writ Petition No.8615/2011. Thus, the delay was properly explained and the same should have been accordingly condoned.
There is no dispute with the law laid down by the Apex Court in the case of Consolidated Engineering Enterprises (supra), Esha Bhattacharjee (supra) and M.P. Steel Corporation (supra) laying down that the time beginning from filing of the proceedings before a particular Court till as such time the said Court returns a finding that the proceeding was before a wrong forum should be excluded while counting the period of limitation. Para 21 of the judgment rendered in the case of Consolidated Engineering Enterprises (supra) laying down the conditions to be satisfied for applying Section 14 of the Limitation Act requires was especially referred by the learned counsel which reads :
(7 of 8) [CW-5190/2014] "21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;
(2) The prior proceeding had been prosecuted with due diligence and in good faith;
(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;
(4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and;
(5) Both the proceedings are in a court.
The question, therefore, herein is as to whether the delay of 1825 days should have been condoned in the facts of the present case. Each case depends on its own facts. In the case in hand, this Court cannot loose sight of the fact that although there is no bar in availing both the remedies, the defendant was required to file an application under Order 9 Rule 13 CPC and a Regular Appeal simultaneously. Allowing the tenant to file a regular appeal challenging an ex parte decree after the dismissal of the application under Order 9 Rule 13 CPC for setting aside the ex parte decree till he had exhausted the remedy right uptill High Court and waited for long 5 years before filing of the regular appeal under any circumstances cannot be said to be a bonafide course of action. There was no plea that the petitioner did not (8 of 8) [CW-5190/2014] know that the remedy of availing of filing a regular appeal was available. In spite of knowledge that there was limitation for filing a regular appeal, the petitioner chose to file the appeal after exhausting the remedy of filing a petition under Order 9 Rule 13 CPC uptill the High Court only to delay the matter as much as possible and frustrate the entire proceedings. Any exercise of condonation of delay and leniency by the Court in the circumstances of the present case involving rent petitions amounts to being harsh and unfair to the respondents and would result in setting a wrong precedent and encouraging each and every tenant in rent matters to adopt similar method and modus of operandi to delay the finalization of an eviction petition.
In view of the above, this Court finds no reason to interfere in the order dated 29.05.2014 passed by the Appellate Rent Tribunal, Udaipur dismissing the application under Section 5 of the Limitation Act for condonation of delay and thereby dismissing the appeal having been filed beyond the period of limitation.
Dismissed accordingly.
(NIRMALJIT KAUR),J.
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