JUDGMENT
Dharmadhikari B.P., J.
1. By this petition under Articles 226 and 227 of Constitution of India, the petitioner/tenant challenges the order dated 14-6-2004 whereby the Additional Collector and Appellate Authority under C.P. and Berar Letting of Houses and Rent Control Order, 1949, has refused to condone delay in filing an appeal under Clause 21(2) of Rent Control Order, challenging the order dated 4-4-1998 passed by Rent Controller, Nagpur, rejecting the application for setting aside ex parte order moved by petitioner. The said ex parte order has been passed by Rent Controller on 14-10-1996 in favour of present petitioner/landlord.
2. The case of the petitioner/tenant is in brief, as under :
He wanted to challenge the order dated 4-4-1998 passed by Rent Controller rejecting the application for setting aside ex parte order moved by him before it. The Rent Controller had passed ex parte order on 14-10-1996 in Revenue Case No. 2778/A-71(2)/94-95 in favour of respondent/landlord and granted permission to terminate the tenancy of petitioner/tenant under Clause 13(3)(ii) and (iv) of the Rent Control Order. The petitioner/tenant got knowledge of this ex parte proceedings when he received a notice in 2nd week of December, 1996 from one Advocate Pathak. After receipt of that notice, he filed Revenue Case No. 177/A-71(2)/96-97 for setting aside the ex parte order. But learned Rent Controller on 4-4-1998 refused to set aside, that ex parte order. According to him, learned Rent Controller did not consider the fact that on account of bona fide reasons, he could not remain present in original proceedings and be ought to have given opportunity to lead evidence to examine postman so as to enable him to show that he never refused to receive any envelope sent by post to him and to demonstrate that endorsement “not claimed” on postal envelope was manipulated one. He contends that he had several other grounds to challenge the said order of Rent Controller dated 4-4-1998. He states that he ought to have filed the appeal within fifteen days, but he was unwell from 3rd April, 1998 to 24th April, 1998 and, therefore, could not contact his Counsel. He states that immediately after getting well, he moved an application for certified copy on 24-4-1998 and received it on 27-8-1998. But again he was unwell on account of maleria between 28-8-1998 to 3-9-1998 and he contacted his Counsel on 3-9-1998 and instructed him to prefer an appeal, and accordingly the appeal came to be filed on 5th of September, 1998 with an application for condonation of delay as there was delay of about four months. The learned Counsel for the petitioner further points out that the Appellate Authority was concerned with the delay in challenging the order dated 4-4-1998 and the impugned order refusing to condone the delay passed on 14-6-2004 shows total non-application of mind and is liable to be quashed and set aside.
3. As against this, Mr. Shrivastava, learned Counsel appearing for respondent/Landlord contends that the petition is without any merit. He points out that the petitioner is tenant of shop block and is habitual defaulter. He points out that he was required to recover the rent by filing suits and thereafter by taking out warrants for attachment of movable properties. He states that the petitioner/landlord deliberately permitted the proceedings before the Rent Controller to proceed ex parte and then deliberately filed the proceedings for setting aside said ex parte permission. He states that the tenancy of the petitioner is already terminated as per the notice dated 2nd December, 1996 and thereafter the landlord filed Civil Suit No 26/1996 before the Small Causes Court, Nagpur for his ejection, possession and inquiry into mean profits. The said suit came to be decreed on 30th November, 1999 and petitioner/tenant has been directed to deliver vacant possession. He further states that against this judgment and decree the petitioner has filed Regular Civil Appeal No. 59/ 2000 before the District Judge, Nagpur and that appeal came to be dismissed as per the judgment and decree dated 11-12-2001. He further states that petitioner/tenant thereafter filed CRA No. 541/2002 in the High Court and the said CRA is also dismissed on 12-4-2004. He states that thus in so far as decree for ejection of petitioner/tenant from the suit premises is concerned, it has attained finality. He states that he has initiated execution proceedings, vide Special Darkhast No. 137/2003 for recovery of possession and those proceedings are still going on. The learned Counsel points out that on 27-1-1997 the petitioner filed application for setting aside the ex parte order dated 14-10-1996 and those proceedings have been filed 5 months after the date of ex parte order i.e. 29-8-1996 and after more than three months of the ex parte permission which is granted on 14-10-1996. He further states that no application seeking condonation of delay was filed by the petitioner/tenant. He contends that there is absolutely no explanation for condonation of delay and in spite of this the application was considered on merits by the learned Rent Controller and the Rent Controller rejected it on 4-4-1998. He has denied that the petitioner fell sick on 3-4-1998 or again fell sick between 28-8-1998 till 3-9-1998. He contends that it is strange on the part of the petitioner that he is felling sick just a day before such important events and all this, according to him, shows that petitioner has fabricated a false story. He further states that petitioner was given date as 5-5-1998 to collect the certified copy, but he has collected certified copy on 27-8-1998 and there is absolutely no explanation for the period spent between 5-5-1998 to 27-8-1998. He, therefore, contends that in the facts and circumstances of the case, the order passed by the Appellate Authority is just and proper and calls for no interference.
4. In view of the dispute between the parties about the date on which the certified copy applied for by the petitioner/tenant became ready, the matter was required to be adjourned twice and on 27-10-2004 the learned Counsel appearing for petitioner has produced the certified copy of Outward Register of the office of Collector. He points out that the record of Rent Control case was itself forwarded on 6-5-1998 by office of Rent Controller to the Record Keeper of Collector and, therefore, copy could not have been ready on 5-5-1998. He states that copy was ready on 27-8-1998 and he has collected it accordingly. He, therefore, contends that there is no delay between 5-5-1998 to 27-8-1998, as alleged by the respondent. The respondent/landlord is not in a position to deny the contents of said certified copy.
5. If the impugned order dated 14-6-2004 is perused in this background, the learned Appellate Authority, has in para 1 considered the past conduct of petitioner/tenant and has found that he did not bother to make any application for almost period of five months. In para 2, the Appellate Authority has found that though the application for certified copy of the impugned order was made on 24-4-1998 and he was asked to appear on 5-5-1998, the tenant has collected certified copy on 27-8-1998. Thus, the Appellate Authority has held that the conduct of petitioner/tenant shows that he is acting negligently and there is lack of due diligence in filing the appeal within limitation.
6. The Advocate for petitioner has relied upon the judgment reported at Collector, Land Acquisition, Anantnag v. Mst. Katiji, A.I.R. 1987 S.C. 1353, contended that the courts should adopt a liberal approach in the matter of condonation of delay. He states that the petitioner/tenant was not to gain anything by not appearing before the Rent Controller or by not filing appeal within time. He contends that there are no mala fides or laches on the part of petitioner. He states that the proceedings before the Appellate Authority were in relation to order dated 4-4-1998 and, therefore the Appellate Authority ought to have restricted its application of mind to find out whether there are just and sufficient reasons to condone delay in filing the appeal in challenging that order. He contends that past conduct of petitioner/tenant was not at all relevant. He contends that the reasons given by him, viz. illness, has not been looked into by Appellate Authority in the impugned order.
7. As against this, the learned Counsel appearing for respondent/landlord invited attention of this Court to the judgment reported at 1998(3) Bom.C.R. 291 : 1998(1) Mh.L.J. 745, Laxman N. Divekar v. State of Maharashtra, and states that the Appellate Authority is correct in its approach because no Court can arbitrarily condone the delay in the name of advancing substantial justice.
8. I have heard the parties and having considered the controversy, as reproduced above, it is clear that the Appellate Authority, while delivering the impugned order dated 14-6-2004, has not considered the reasons put forth by petitioner/tenant for condonation of delay the challenge before the Appellate Authority was to the order dated 4-4-1998 and appeal filed by petitioner/ tenant, vide Rent Control Appeal No. 25/1998 was challenging the order dated 4-4-1998. So the Appellate Court ought to have restricted its scrutiny only to the events which have transpired after 4-4-1998. If and after the Appellate Authority thought it fit to condone the delay then it could have considered the legality and propriety of order dated 4-4-1998 passed by Rent Controller, Nagpur, whereby the Rent Controller refused to set aside ex parte order dated 14-10-1996. Thus, the behaviour and conduct of petitioner/tenant prior to 4-4-1998 would have been relevant while considering the legality and validity of the order passed by Rent Controller on 4-4-1998 on merits. It was not relevant while deciding the application for condonation of delay moved by petitioner/tenant before the Appellate Authority under Section 5 of the Limitation Act. The petitioner/ tenant has mentioned in his application that he had fallen ill between 3rd April, 1998 to 24th April, 1998 and thereafter from 28-8-1998 to 3-9-1998. This illness or reason is not at all taken into reckoning by the learned Appellate Authority. Not only this, as already discussed above, the certified copy was not ready on 5th of May, 1998 as record of the case was forwarded by Rent Controller to the record keeper thereafter i.e. on 6th May, 1998. However, no finding in this respect is being recorded by the authority below. It is thus clear that the impugned order dated 14-6-2004 suffers from non application of mind, as material relevant for deciding the issue, has not been considered by the learned Appellate Authority and the irrelevant material has been looked into for refusing to condone the delay.
9. The judgment 1998(3) Bom.C.R. 291 relied upon by the learned Counsel for the respondent/tenant has no application in the facts and circumstances of the present case. In that case, the suit filed by a private individual against State of Maharashtra was decreed by Civil Judge, Senior Division, Baramati on 2-3-1991. The State Government challenged that decision in appeal filed on 16-12-1993. There was delay of more than 750 days. In an application under Section 5 of the Limitation Act, the reason put forth was that application for obtaining certified copies of impugned judgment and decree dated 2nd March, 1991 was made on 22nd October, 1993, certified copies were received on 28-10-1993 and appeal was filed on 18-12-1993. The application stated that due to the rush of administrative work and other preoccupation, the State Government could not take timely action. The delay came to be condoned by Additional District Judge observing that it was just to decide the matter on merit and the Government cannot be thrown out at the threshold. The learned Single Judge of High Court has held that the limitation is prescribed by law. The said provision is required to be applied and there cannot be separate standards made applicable in this respect to a private individual and to State Government. The facts and circumstances of the present case are totally different.
10. Under the circumstances, the impugned order dated 14-6-2004 passed by the learned Appellate Authority and Additional Collector, Nagpur, refusing to condone delay in Revenue Case No. 25/A-71(2)/98-99 is hereby quashed and set aside. The matter is remanded back to said authority for considering that application afresh in accordance with law after giving due opportunity to both the parties. As the case is old, decision in this respect should be taken within six months of this order.
11. Rule made absolute in above terms. No order as to costs.
