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Dr. Bipin Kumar Chandra v. Shahid Husnain - WRIT - A No. 71141 of 2006 [2007] RD-AH 99 (3 January 2007)


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 Court no. 7                                                        

         Civil Misc. Writ Petition No. 71141 of 2006

        Dr. Bipin Kumar Chandra         versus    Shahid Husnain

Hon'ble Rakesh Tiwari,J.

Heard counsel for the parties and perused the record.

Brief facts of the case are that the respondent filed JSCC suit no.80 of 2001 before the Judge Small Causes Court, Varanasi against the petitioner for eviction and arrears of rent. The petitioner filed written statement thereto denying the allegations contained in the aforesaid suit.  The Judge Small Causes Court, Varanasi by order dated 15.3.2004 partly dismissed the suit of the respondent.

Aggrieved by the aforesaid order dated 15.3.2004 the petitioner filed SCC revision under Section 25 of the Provincial Small Causes Courts Act, 1887 along with delay condonation application 6-Ga under Section 5 of the Limitation Act, 1963 supported with an affidavit before the District Judge, Varanasi which was registered as Misc. Application No. 562 of 2004. The Additional District Judge, Court no.7, Varanasi rejected the delay condonation application 6-Ga vide order dated 3.8.2006.

             The petitioner has come up in this writ petition challenging the validity and correctness of the aforesaid order dated 3.8.2006 passed by the Additional District Judge, Court no.7, Varanasi.

   The contention of the counsel for the petitioner is that the petitioner was advised by his counsel Sri Rajendra Tiwari in the court below that since the suit for eviction has been dismissed, he need not to file the SCC revision against the order dated 15.3.2004 and if the landlord prefers the revision, he will have opportunity to have his say as the Court has got jurisdiction to give decision regarding the rate of rent. It is stated that the petitioner believing on bonafide advice so given did not challenge the same by filing the revision.

He further submits that when the petitioner came to know about SCC Revision No. 15 of 2004 filed by the landlord, he appeared on 18.9.2004 through his newly engaged counsel Sri Girish Upadhyaya who gave legal advice to him to file SCC revision. It is then the petitioner filed the aforesaid SCC revision along with delay condonation application.

The counsel for the respondent submits that much delay has been caused in filing the revision and the Court below has rightly rejected the delay condonation application.  It is also submitted that there is no illegality or infirmity in the impugned order as the Court has judiciously exercised its discretion.

The Court below has rightly held that sufficient cause for condonation of delay in filing the revision has not been shown by the petitioner in the affidavit filed in support of the application for codonation of delay under Section 5 of the Limitation Act. Condonation of delay is discretion of the Court. The power is to be exercised judiciously by the Court. I have gone through the impugned order and find that detailed order has been passed by the Court below giving cogent reasons for rejecting the delay condonation application.  It is admitted by the counsel for the petitioner that the earlier counsel Sri Rajesh Tiwari who was conducting the case had given correct advice. This aspect of the matter has also been dealt by the Court below in the impugned order.  There is no illegality or infirmity in it. In the circumstances, no interference is required by this Court under Article 226 of the Constitution of India.

For the reasons stated above, the writ petition is dismissed. No order as to costs.

Dated 3.1.2007



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