Madras High Court
K. Muthu S/O. Gopal vs A. Mohamed Yusuf Khan, Zeaddin, A. ... on 31 January, 2007
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. C.R.P. No. 1896 of 2004 is directed against the order dated 07.10.2004 passed by the Rent Control Appellate Authority (VIII Judge, Small Causes Court), Chennai in R.C.A. No. 1030 of 2004, confirming the order dated 04.08.2004 passed by the Rent Controller (X Judge, Small Causes Court), Chennai in M.P. No. 507 of 2004 in R.C.O.P. No. 1727 of 2001, dismissing the Petition filed by the Revision Petitioner / Tenant to reopen the case for the purpose of examining himself.
2. C.R.P. No. 2366 of 2004 is directed against the order dated 07.10.2004 passed by the Rent Control Appellate Authority (VIII Judge, Small Causes Court), Chennai in R.C.A. No. 970 of 2004, confirming the order dated 04.08.2004 passed by the Rent Controller (X Judge, Small Causes Court), Chennai in M.P. No. 398 of 2004 in R.C.O.P. No. 1727 of 2001, declining to condone the delay of 112 days in filing the set aside Petition.
3. The Respondents / Landlords purchased the property bearing Old No. 2, New No. 1, Ranganathan Street, T. Nagar, Chennai from Luthifa Beevi and others by a Sale Deed dated 02.02.2001. The Petitioner is a Tenant in respect of a portion in the ground floor on a monthly rent of Rs.650/- and he is running a fruit stall. After the purchase of the property by the Respondents, the Petitioner did not attorn the tenancy and the Petitioner defaulted in payments of rents from December 2000. The Respondents are doing business under the name and style of "Raasi Gold Covering Works" at No. 109, Usman Road, T. Nagar, Chennai for the past 25 years. Since the premises purchased by them is required for their own use and occupation, the Respondents sent individual notices to all the Tenants, including the Petitioner on 22.10.2001, calling upon them to pay the rent from December 2000 and also hand over vacant possession for own use and occupation and non payment of rents. The Petitioner received the Notice on 08.11.2001, but did not come forward to pay the arrears of rent nor vacate and hand over vacant possession. The Respondents filed R.C.O.P. No. 1727 of 2001 against the Petitioner on the grounds of Wilful Default of payment of rent and for Own Use and Occupation.
4. R.C.O.P. No. 1727 of 2001:- For a number of hearings, Notices were sent to the Petitioner both through Court and also Private Notice. Notice sent through Court by way of R.P.A.D was received by the Petitioner on 14.02.2002 and the Petitioner failed to appear before the Trial Court. Hence, the Petitioner was set exparte and eviction was ordered on 17.04.2002.
5. E.P. No. 293 of 2002:- To execute the Decree for eviction, the Respondents filed this Execution Petition and on 04.07.2002, the Court ordered Notice in the said Petition. Inspite of notices being sent to the Petitioner for number of hearing dates, the Petitioner did not appear. Substituted service of publication in Newspaper - "Dinamalar" was effected. Only thereafter, the Petitioner entered appearance on 16.08.2002 in E.P. No. 293 of 2002.
6. The Petitioner filed an Application in M.P.S.R. No. 18099 of 2002 on 06.09.2002 to set aside exparte decree in R.C.O.P. No. 1727 of 2001. That Application was returned for rectification of certain defects. But, that Application was represented with a delay of 100 days. The Petitioner has filed other Applications in M.P.S.R. No. 26791 of 2002 seeking to condone the delay of 100 days in representation of the returned papers and M.P.S.R. No. 26790 of 2002 (later numbered as M.P. No. 398/2004) to condone the delay of 141 days in filing the Petition to set aside the exparte decree. Both the Applications were dismissed by the Court and the Court has ordered delivery in the Execution Petition, which was challenged in C.R.P. No. 41 of 2003. The High Court allowed C.R.P. No. 41 of 2003 and directed the Trial Court to number the petition to condone the delay in filing the Application at first and dispose of the same after affording opportunity to both parties. Pursuant to the order of High Court in C.R.P. No. 41 of 2003, the Application to set aside the exparte order was numbered as M.P. No. 398 of 2004. The Petitioner has filed an Amendment Application to amend the number of days of delay and the Court allowed the same. When the matter was reserved for orders, the Petitioner filed M.P. No. 507 of 2004 seeking for reopening of M.P. No. 398 of 2004 for the purpose of examining himself, which was dismissed by the Court by order dated 04.08.2004. The Trial Court also dismissed M.P. No. 398 of 2004 holding that no sufficient reason is shown for non-appearance. Pointing out that the Petitioner has been served in the Execution Petition even on 14.02.2002 as is evident from the Acknowledgement, both the Courts below dismissed M.P. No. 398 of 2004 declining to condone the delay in filing the Application to set aside the exparte order of eviction.
7. Assailing the Impugned Order, learned Counsel for the Petitioner has submitted that the Petitioner had knowledge of eviction proceedings only on 07.08.2002 when he was served with Notice in the Execution Proceedings and the Appellate Court erred in referring to the Acknowledgement and erred in finding that the Petitioner was served even on 14.02.2002. Placing reliance upon the decision reported in 1999 M.L.J (Supp) 409, learned Counsel for the Petitioner further argued that both the Courts below erred in not condoning the delay in filing the Application when the Petitioner has filed the Application within the time from the date of knowledge of eviction order.
8. Drawing the attention of the Court to various stages of proceedings, learned Counsel for the Respondents has submitted that when the Petitioner had received Court Notice sent by R.P.A.D. on 14.02.2002, the Petition ought to have been filed within 30 days from thereon. Referring to the admission in the subsequent R.C.O.P. No. 105 of 2003, learned Counsel urged that service of Notice is well proved by the admission of the Petitioner himself on receipt of Notice. Arguing further, learned Counsel also submitted that the delay in filing the Application and various proceedings only show that there is deliberate delay and gross negligence in prosecuting the matter and the delay is only for the purpose of protracting the proceedings.
9. I have carefully examined the records and considered the submissions. Even prior to filing of the eviction petition, the Respondents / Landlords sent Notice on 22.10.2001 calling upon the Petitioner to pay rent from December 2000 and also to vacate and hand over vacant possession on the grounds of Own Use and Occupation and non-payment of rent. Though the Petitioner had received the Notice, there was no response from the Petitioner. It is evident from the records that in R.C.O.P. No. 1727 of 2001, number of Notices were sent for the hearings on 14.12.2001, 04.01.2002, 21.01.2002, 31.01.2002, 12.02.2002 and 22.02.2002. Finally, notice was sent through Court by way of R.P.A.D., which was received by the Petitioner on 14.02.2002. Since the Petitioner failed to appear, he was set exparte and eviction was ordered on 17.04.2002. As stipulated under Rule 12(3) of Tamil Nadu Buildings (Lease and Rent Control) Rules, the Petitioner has not filed the Application within 30 days from the date of the order.
10. According to the Petitioner, he came to know about the eviction order only after notice was effected in execution proceedings by substituted service on 17.08.2002. Referring to the Acknowledgement dated 14.02.2002 under which the Petitioner had received Notice, the Courts below have negatived that plea of the Petitioner. In the Notice served upon the Petitioner on 14.02.2002, hearing date was fixed on 22.02.2002. Thereafter, the case was adjourned to 06.03.2002 and again adjourned to 18.03.2002. Only on 18.03.2002, the Respondents / Landlords were examined in part and the matter was again adjourned to 10.04.2002 and 17.04.2002. On adducing of further evidence on 17.04.2002, eviction order was passed. It is thus clear that after serving notice upon the Petitioner on 14.02.2002 and the hearing on 22.02.2002, the order of eviction was passed nearly after 1 1/2 months after a couple of hearings.
11. For the subsequent period of default, the Landlords have filed Eviction Petition in R.C.O.P. No. 105 of 2003, which has been hotly contested. In the said R.C.O.P., eviction order was passed against which C.R.P. No. 1655 of 2006 is filed and the same is pending. While the witnesses were examined in R.C.O.P. No. 105 of 2003, the Petitioner was confronted with Acknowledgement dated 14.02.2002 and the Petitioner has replied stating that he might have received the Notice on 14.02.2002. Pointing out that the signature of the Petitioner in the Acknowledgement is identical with his admitted signatures found in the Court records, the Appellate Authority found that the signature in the Acknowledgement is that of the Petitioner and arrived at the conclusion that the Petitioner had received the Notice on 14.02.2002. Though the Petitioner had received the Notice on 14.02.2002, no diligent steps had been taken for setting aside the order of eviction.
12. There is delay of 112 days and no sufficient cause is shown explaining the delay. Pointing out the evidence in R.C.O.P. No. 105 of 2003, the Appellate Authority found that the Petitioner had received the Notice in R.C.O.P. and right in concluding that the Petitioner had knowledge of the contents of the Notice. When the Acknowledgement contains the signature of the Petitioner, under Section 114 - illustration(e) of the Indian Evidence Act, the Court shall presume that the judicial and official acts have been regularly performed. By the signature of the Petitioner in the Acknowledgement, the presumption is that on 14.02.2002, the Petitioner has received the Court Notice. Under Section 27 of the General Clauses Act, unless a different intention appears, the service shall be deemed to be effected by properly addressing and posting by Registered Post - a letter containing the document and unless the contrary is proved, it shall be presumed to have been effected at the time when the letter would be delivered in the ordinary course of post.
13. In the decision reported in Haridaran Singh v. Shivrani , the Supreme Court has held "...where there was positive evidence to the effect that the registered envelope was actually tendered by him to the appellant but the tenant refused to accept it, there was due service effected upon the tenant by refusal and in such circumstances, the High Court was right in coming to the conclusion that the tenant would be imputed with the knowledge of the contents of notice which he refused to accept...."
14. Contending that the Petition is filed within 30 days from the knowledge of eviction order and the Courts below ought to have allowed the Application, learned Counsel for the Petitioner has relied upon the decision reported in Amir Jan Sahib v. Janab K. Mohamed Sulaiman 1999 M.L.J (SUPP) 409. In the said case, the Tenant has not denied the knowledge of eviction proceedings. After receiving summons in eviction proceedings, the Tenant met the Landlord and the Landlord asking him to pay the arrears of rent and said that he would not pursue the eviction petition. In those facts and circumstances of the case, the learned Judge has held that it is not mere knowledge of pendency of a suit, but the fact of parties actual knowledge of the passing of the decree would be relevant. Allowing the Revision Petition, this Court has set aside the exparte order of eviction. The said decision has no bearing to the case on hand. Inspite of receipt of Execution Proceedings, the Petitioner had not taken any diligent steps to enter appearance in the eviction proceedings.
15. There is much force in the contention of the Respondents that the Petitioner is bent upon delaying eviction proceedings. After C.R.P. No. 41 of 2003 was allowed, M.P. No. 398 of 2004 was numbered. At the time while hearing the arguments, the Petitioner had filed M.P. No. 460 of 2004 for reopening M.P. No. 398 of 2004 to amend the affidavit and petition and substituting correct days of delay. The Trial Court allowed the Amendment Application 19.07.2004 and the Petitioner carried out the amendment. Thereafter, again M.P. No. 398 of 2004 was heard and orders were reserved. After the matter was reserved for orders, the Petitioner again filed M.P. No. 507 of 2004 to reopen the case for the purpose of examining himself. That Application was dismissed, which was challenged before the Appellate Authority in R.C.A. No. 1030 of 2004. As against the order of dismissal of M.P. No. 398 of 2004, R.C.A. No. 970 of 2004 was filed. The Applications filed at various stages are eloquent to demonstrate the deliberate intention to delay the proceedings.
16. Contending that there is lack of bonafides on the part of the Petitioner and that the Court should not show leniency, learned Counsel for the Respondent has relied upon the decision of the Division Bench reported in Sunder Gnanaolivu v. Rajendran Gnanavolivu 2003 (I) L.W. 585. Holding that when the Applicant has not come to the Court with clean hands and when the affidavits are devoid of truth lacking in bonafide, the rule of liberal approach formula cannot be adopted in matters relating to condonation of delay, the Division Bench has observed as follows:
...14-A. In yet another Division Bench Judgment reported in 1990 (1) L.L.N. 457 (Tamilnadu Mercantile Bank Ltd., Tuticorin v. Appellate Authority under the Tamil Nadu Shops and Establishments Act, Madurai andAnr.), the principles relating to rule of limitation have been discussed and the legal position has been stated by His Lordship Mr. Justice M. Srinivasan, as he then was, in paragraphs 14 and 17, which read as under:
14... If a litigant chooses to approach the Court long after the time prescribed under the relevant provisions of the law, he cannot say that no prejudice would be caused to the other side by the delay being condoned. The other side would have in all probability destroyed the records thinking that the records would not be relevant as there was no further proceedings in the matter. Hence, to view a matter of condonation of delay with a presupposition that no prejudice will be caused by the condonation of delay of the respondent in that application will be fallacious. In our view, each case has to be decided on the facts and circumstances of the case. Length of the delay is a relevant matter to be taken into account while considering whether the delay should be condoned or not. It is not open to any litigant to fix his own period of limitation for institution proceedings for which law has prescribed periods of limitation.
17... Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long time, it cannot be presumed to be non-deliberate delay, and in such circumstances of the case, he cannot be heard to plead that substantial justice deserved to be preferred as against technical considerations. We are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound public policy and principles of equity. Is a litigant liable to have a Damocles' sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent?
15. On a conspectus reading of the above principles set out in the various judgments, it is well settled that a liberal approach should be extended while considering the application for condonation of delay. Sufficient caution has been exhibited to note that wherever there is lack of bona fides or attempt to hood-wink the court by the party concerned who has come forward with an application for condonation of delay, in such cases, no indulgence should be shown by condoning the delay applied for. It is also clear to the effect that it is not the number of days of delay that matters, but the attitude of the party which caused the delay. In other words, when the Court finds that the party who failed to approach the Court within the time stipulated comes forward with an explanation for condoning the delay, the Court is satisfied that the delay occasioned not due to the deliberate conduct of the party, but due to any other reason, then by sufficiently compensating the prejudice caused to the other side monetarily, the condonation of delay can be favourably ordered.
16. As held by His Lordship Mr. Justice M. Srinivasan, as he then was, in the Division Bench Judgment reported in 1990 (1) L.L.N. 457 (Tamilnadu Mercantile Bank Ltd., Tuticorin v. Appellate Authority under the Tamil Nadu Shops and Establishments Act, Madurai and Anr.), the rules prescribing the period of limitation have to be obeyed by the concerned party and in order to get over such period prescribed, sufficient explanation should be tendered. His Lordship was pleased to hold that question of limitation is not merely a technical consideration but based on principles of second public policy as well as equity and that a litigant cannot be expected to have a Damocles' Sword hanging over his head indefinitely for a period to be determined at the whims and fancies of the opponent....
17. The fact remains that the Petitioner was served with Notice on 14.02.2002. He had not taken any diligent steps in pursuing the Eviction Petition. But, the Petitioner was filing Applications after Applications mainly for the purpose of delaying the eviction proceedings. When there is total lack of bonafide on the part of the Petitioner, going by the principles set out in the various Judgments, the matter cannot be liberally considered in condoning the delay. Taking note of the conduct of the Petitioner, the Courts below have rightly dismissed the Applications, declining to condone the delay and to reopen the case and that orders do not suffer from any serious infirmity calling for interference.
18. For the foregoing reasons, the orders dated 07.10.2004 of by the Rent Control Appellate Authority (VIII Judge, Small Causes Court), Chennai in R.C.A. Nos. 1030 of 2004 and 970 of 2004, (arising out of M.P. Nos. 507 and 398 of 2004 in R.C.O.P. No. 1727 of 2001 on the file of X Judge, Small Causes Court, Chennai) are confirmed and these Civil Revision Petitions are dismissed. No costs. Three months time from the date of this order is granted to the Petitioner for vacating and handing over vacant possession to the Respondents.