Patna High Court - Orders
Sri Motilal Gupta vs Srimati Shalini Agrawal on 22 June, 2015
Author: V. Nath
Bench: V. Nath
nIN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Revision No.81 of 2014
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Sri Motilal Gupta, son of late Mauzi Lal Gupta having business premises in
the name and style of Moti Lal Jewellers, at Mohalla Jairam Bazar,
Khagaul, P.O. and P.S. Khagaul, District-Patna. Residing at Mohalla-Chhoti
Khagaul, P.O. and P.S. Khagaul, District-Patna.
.... .... Petitioner/s
Versus
Srimati Shalini Agrawal, wife of Sri Ravi Agrawal through her duly
constituted attorney Sri Ravi Agrawal son of Sri Raj Kumar Agrawal,
resident of Mohalla Jairam Bazar, Khagaul, P.S. and Khagaul, District-
Patna.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Raj Kishore Prasad Singh
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE V. NATH
CAV ORDER
16 22-06-2015Heard Mr. R.K.P. Singh, the learned counsel appearing on behalf of the petitioner and Mr. J.S. Arora, the learned counsel appearing on behalf of the opposite party on the prayer for condonation of delay as made by the petitioner in the interlocutory application (I.A. No. 4255 of 2014) filed under Section 5 of the Limitation Act.
The present revision application has been filed under Section 14 (8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as 'the Act') against the judgment and order for eviction dated 30.09.2013 passed in Title Eviction Suit No. 05 of 2007 by the court of Patna High Court C.R. No.81 of 2014 (16) dt.22-06-2015 2 Additional Munsif-4th Danapur. The stamp reporter has pointed out the delay of six months and 12 days in filing this revision application.
The petitioner has filed the interlocutory application (I.A. No. 4255 of 2014) under Section 5 of the limitation Act praying for condonation of delay. The rejoinder to the said petition has been filed on behalf of the opposite party followed by reply to the rejoinder by the petitioner and supplementary counter affidavit on behalf of the opposite party.
After considering the submissions as well as the pleadings of the parties on the issue of condonation of delay, the facts emerge that the petitioner after obtaining the certified copies of the judgment and decree passed in Title Eviction Suit No. 05 of 2007 had filed Title Appeal No. 71 of 2013 before the court of District Judge, Patna. It is the case of the petitioner that the said title appeal was filed within the prescribed period of limitation and was admitted for hearing after payment of requisite court fee. It is, however, the case of the petitioner that though he filed the said appeal on the advice of his counsel but after the objection raised by the plaintiff-respondent on his appearance in the said appeal regarding the maintainability of the appeal, the counsel of the petitioner advised him to withdraw the Patna High Court C.R. No.81 of 2014 (16) dt.22-06-2015 3 said appeal with liberty to file the revision application. The petition for withdrawal was filed by the petitioner on 03.05.2014 (Annexure-1) and the order dated 09.05.2014 has been passed by the appellate court on the said petition granting the permission as prayed and dismissing the appeal as withdrawn (Annexrue-2). On the basis of these facts, it has been submitted on behalf of the petitioner that the petitioner was bonafidely pursuing his remedy against the impugned judgment and order for eviction before a wrong forum on the advice of his counsel and as such, there has not been deliberate delay or negligence in filing the present revision application belatedly.
On the other hand, it has been contended on behalf of the opposite party that the petitioner had filed the title appeal before the learned District Judge with deliberate intention to cause delay in the matter. It has been pointed out that soon after her appearance in the appeal, the objection petition was filed on 24.01.2014, after service of copy to the petitioner, raising categorical objection to the maintainability of the appeal in view of the provisions of Section 14 of the Act providing the remedy of revision under Section 14 (8) of the said Act against an order of eviction but even thereafter the petitioner did not act promptly inasmuch as he filed the petition for withdrawal of the appeal on Patna High Court C.R. No.81 of 2014 (16) dt.22-06-2015 4 03.05.2014. It has thus been propounded that the intention to prolong the litigation is writ large from the facts. The reliance on behalf of the opposite party in support of the proposition has been placed on the decision of the Apex Court in the case of Ramji Pandey Vs. Swaran Kali A.I.R. 2011 (SC) 489 and in the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy 2014 (1) PLJR (SC) 290.
In the case of Ramji Pandey (supra) the facts were that in spite of the objection to the maintainability of the appeal before the District court for want of pecuniary jurisdiction, the appellants therein continued to pursue the appeal and obtained the order in their favour. Besides, the facts also disclosed that the appellants also failed to pursue the suit in right earnest leading to an ex parte decree against them. Their Lordships in these back drop of facts have come to the conclusion that the appellants were not only negligent but were also not pursuing the entire matter with due diligence and accordingly refused to interfere with the order of the High Court which had refused to condone the delay by granting indulgence to the appellants under Section 14 of the Limitation Act. The facts in the present case however, are different and do not disclose inaction or gross negligence on the part of the petitioner as the Patna High Court C.R. No.81 of 2014 (16) dt.22-06-2015 5 appeal against the judgment and decree of eviction was filed by the petitioner, though before the wrong forum, but within the time and the same was also admitted for hearing. Thereafter, in response to the objection raised by the plaintiff-respondent to the maintainability of the appeal, the petitioner filed the petition for withdrawal though belatedly.
In the case of Esha Bhattacharjee (supra), the Apex Court after considering the earlier decisions has culled out the principles after considering the earlier decisions on the point of condonation of delay, in paragraph-15 and 16 of the judgment. The manifest emphasis by the Apex Court on careful scrutiny of the entire gamut of facts and restriction on the unfettered liberal approach reconciling the same with the conception of reasonableness is apparent.
Testing the explanation furnished by the petitioner for belated filing of this revision application on the anvil of the principles as laid down by the Apex Court in Esha Bhattacharjee (supra), this Court has not been persuaded to conclude that the petitioner has acted with gross negligence and lack of bonafidies are imputable upon him. The filing of the appeal within time though before a wrong forum, the withdrawal of appeal after the objection was raised to its maintainability though belatedly prayed Patna High Court C.R. No.81 of 2014 (16) dt.22-06-2015 6 and thereafter filing this revision application are facts which are not strictly compatible with the allegations of gross negligence, inaction or default. There is also no presumption to deliberate causation of delay, and lack of bonafides cannot be inferred only due to belated filing. It is also apparent that the petitioner has no other remedy against the impugned judgment and order of eviction except this revision application. Simultaneously however, it also cannot be ignored that the opposite party has filed the suit for eviction on ground of personal necessity and has also been granted the order of eviction for which the execution case has been filed.
After giving anxious consideration to the entire facts and circumstances as well as submissions, the prayer of the petitioner for condonation of delay in filing this revision application is allowed subject to the payment of cost quantified at Rs. 10,000/- to the opposite party. The amount of the cost must be deposited within two weeks from the date of this order before the learned court below in Execution Case No. 01 of 2013 which has been filed by the opposite party and is pending. The learned court below, on the prayer of the opposite party, shall allow the withdrawal of the said amount by the opposite party in accordance with law. The petitioner is further directed to file Patna High Court C.R. No.81 of 2014 (16) dt.22-06-2015 7 affidavit stating the deposit of the cost amount within the prescribed period.
The interlocutory application (I.A. No. 4255 of 2014) is, accordingly, allowed with the aforesaid direction. Let the revision application be placed for admission after three weeks, if otherwise ready.
(V. Nath, J) Devendra/-
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