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SMT. TARBUNNISHA versus SHISH MOHAMMAD AND ANOTHER

High Court of Judicature at Allahabad

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Smt. Tarbunnisha v. Shish Mohammad And Another - WRIT - A No. 43260 of 2003 [2007] RD-AH 4712 (16 March 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 7

Civil Misc. Writ Petition No. 43260 of 2003

Smt. Tarbunnisha Vs. Shish Mohammad and another

Hon'ble Prakash Krishna, J.

Heard the learned counsel for the parties.

The petitioner, who is a tenant, has filed the present writ petition challenging the order dated 14-5-2003, filed as Annexure-6 to the writ petition, whereby the court below has refused to condone the delay in filing the revision and the order dated 29-8-2003 (Annexure-9 to the writ petition) whereby the court below has rejected the revision as barred by time.

It appears that SCC Suit No. 16 of 1976 was instituted by the respondents-landlords against the petitioner for ejectment, recovery of arrears of rent and damages, etc. after terminating the tenancy by service of a notice under Section 106 of the Transfer of Property Act. The suit was contested on number of points including that there is no default in  payment of the rent and the notice served upon the tenant is not valid. The suit has been decreed by the judgment and decree dated 8-12-1995 on the finding that the notice served on the petitioner is valid and the petitioner has not committed any default in payment of the rent. The decree for eviction was passed on the ground that the tenancy of the petitioner was a fixed term tenancy which expired after expiry of five years and the lease has not been renewed thereafter. Being aggrieved by the said judgment and decree, the petitioner filed a revision under Section 25 of the Provincial Small Causes Courts Act along with an application  under Section 5 of the Limitation Act for condonation of delay in filing the revision. The court below by the order dated 14-5-2003 refused to condone the delay in filing the revision, but fixed 8-7-2003 for disposal of the application no. 4 Ka/1 ( revision petition). By the subsequent order dated 29-8-2003, the court below dismissed the revision as barred by time in the light of the findings recorded by it in its earlier order dated 14-5-2003. Feeling aggrieved against the aforesaid two orders, the present writ petition has been filed.

Against the judgment and decree of the trial court dated 8-12-1995, the revision was filed on 31-5-1996, after obtaining certified copy of the judgment. The revision filed by the petitioner was approximately time barred by 78 days. The petitioner sought condonation of delay on the ground that she is a Pardanashin lady and her husband was a mechanic and she was dependent on her nephew, Sri Shamim Ahmad who is an Advocate by profession. Sri Shamim Ahmad used to inform about the progress of the suit from time to time and he had engaged one Sri Ramendra Kumar, Advocate on her behalf.  In the month of February 1993, on enquiry made by her, Sri Shamim Ahmad informed that he will inform her about the decision in the suit and thereafter she continued to enquire about the decision from Sri Shamim Ahmad. In the second week of May, 1996 the petitioner received an information from the plaintiff that he has won the case and she has to vacate the disputed accommodation. She thereafter contacted her nephew who by that time had stopped the legal practice and was engaged in some business. She thereafter contacted Sri Ramendra Kumar, Advocate and she came to know that the suit has been decided against her. After obtaining certified copy of the judgment and decree of the trial court, she filed a revision and as such she was prevented by sufficient cause in filing the revision within time. The said application has been rejected by the court below on the finding that it was the duty of the petitioner to keep the track of the case. It has been further observed that normally in district courts, the clients used to visit the office of lawyers to enquire about the progress of the case. The court below was also impressed by the fact that the petitioner has got adult son and there is no reason as to why she failed to depute any one of her sons to look after the case. Basically on these premises, the application for condonation of delay was rejected.  Challenging the aforesaid finding, the present writ petition has been filed.

The Apex Court, time and again, has held that in such matters, the approach of the Court should be justice oriented. In Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and ohters, AIR 1987 Supreme Court 1353, the Supreme Court has laid down the following guidelines to be observed by the Courts in such matters:

1.Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2.Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a case would be decided on merits after hearing the parties.

3."Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner.

4.When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5.There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6.It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Looking to the fact that the trial court, in the case in hand, has held that there was no default  in payment of the rent and decree was passed against the petitioner only on the ground that her lease was for a fixed term and the said lease had expired, it cannot be said that the case of the petitioner is not worth consideration on merit.

Learned counsel for the petitioner very fairly offered that the respondents-landlords may be compensated by awarding heavy cost. It may be taken on record that the suit was filed against the present petitioner who was paying a paltry sum of Rs. 12/- per month. The matter is old one and it is desirable that one more opportunity should be afforded to the petitioner specially when she is a Pardanashin lady. The court below has not doubted the bonafide of the petitioner while rejecting the application for condonation of delay. In this view of the matter, the order dated 14-5-2003, rejecting the application for condonation of delay and the subsequent order dated 29-8-2003, dismissing the revision as barred by time, cannot be sustained and they are hereby set aside on the condition that the petitioner shall deposit a sum of Rs. 5,000/- towards costs within a period of one month from today. Since the petitioner has been continuing in the disputed premises for such a long time on a paltry sum of Rs. 12/- per month, which is as a matter of fact, no rent, it is desirable to fix the damages which may be payable by the petitioner during the pendency of the revision, as laid down by the Apex Court in the case of Atma Ram Properties (P) Ltd. Versus Federal Motors (P) Ltd.,(2005) 1 SCC 705.

The rent/damages payable by the petitioner during the revision is fixed at Rs. 300/- per month. The said damages shall be payable from April, 2007. The petitioner shall pay/deposit a sum of Rs. 300/- per month as a condition for her continuing in possession during the pendency of the revision. It is made clear that if the petitioner fails to pay the cost, as directed above, the writ petition shall stand dismissed. If the petitioner deposits the cost, as directed above, she shall be entitled to continue in the disputed premises till the decision of the revision, provided she continues to pay/deposit damages @ Rs. 300/- per month.

Learned counsel for the parties jointly agreed that since the matter is old one, it is desirable that the revisional court may take steps to decide the revision expeditiously. In view of the above, the revisional court is directed to decide the revision expeditiously, preferably within a period of six months from the date of presentation of certified copy of this order.

With the aforesaid directions, the writ petition is allowed.

Dated:16-3-2007

ALS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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