LAWS(GJH)-2002-6-49

DUNLOP INDIA LIMITED Vs. KALIDAS PATEL FAMILY TRUST

Decided On June 17, 2002
DUNLOP INDIA LIMITED Appellant
V/S
KALIDAS PATEL FAMILY TRUST Respondents

JUDGEMENT

(1.) The petitioner original appellant-defendant tenant has challenged the order passed by the Appellate Bench of the Small Causes Court dated 25.2.2002 passed below Exh. 1 in Civil Appeal No. 44/2002 (Application for condoning delay) on several grounds and when the matter was placed before my brother Justice S.D. Dave on 27.2.2002, the Court has passed the following order and the petitioner herein was directed to deposit the cost of Rs. 7,500/- in the Court on or before 21.3.2002:

(2.) Though Rule was made returnable on 21.3.2002 and interim relief was granted till then, thereafter the matter was adjourned for a subsequent date and the interim relief was ordered to continue. In view of the interim relief passed by this Court, the respondents original plaintiffs had preferred Civil Application being Civil Application No. 2035 of 2002, wherein the applicants had prayed that necessary direction be given to the Bailiff of the Small Causes Court to formally hand over the possession of the Suit Premises to the plaintiffs since the possession thereof had already been taken over from the tenant as highlighted in the Application and in the alternative the applicants had prayed for vacating of the ad interim relief granted earlier i.e., on 27.2.2002. The said Application was placed before my brother Justice S.D. Dave on 8.3.2002 and the said application was adjourned to 16.3.2002. Thereafter, the matter was placed before me after the assignment was changed and considering that in the main matter rule was made returnable on 21.3.2002, by consent of the Counsel appearing in the matter, I had kept the Civil Application for hearing with the main Revision Application and accordingly the matter was heard earlier on 26.3.2002 during which I was taken through the order under challenge and the other relevant documents attached to the application and the affidavit filed by the respondent plaintiff praying for vacating of the relief. Mr. Mehul Shah, learned Advocate appearing on behalf of the petitioner-appellant-original tenant, has vehemently urged that the Appellate Bench of the Small Causes Court was not right in not accepting the cause for delay when sufficient cause was shown for condoning the delay in filing the Appeal and the Appellate Bench of the Small Causes Court has rejected the Application Exh. 1 for condonation of delay in filing the Appeal filed by the petitioner-appellate-original tenant, when the petitioner has challenged the judgment and decree passed by the learned Judge of the Small Causes Court dated 12.10.2001, wherein the learned trial Judge has decreed the Suit of the respondents-plaintiffs for possession. It is the submission of Mr. Shah that the Appellate Bench of the Small Causes Court ought to have condoned the delay when the petitioner had while filing the Application for condonation of delay shown sufficient cause and further that the petitioner-defendant has fair chance of success in the Appeal filed before the Appellate Bench, wherein the petitioner- defendant has challenged the decree of eviction passed in favour of the plaintiffs. It is his submission that the Appellate Bench of the Small Causes Court ought to have examined the merits of the Appeal and while rejecting the Application for condonation of delay, without examining the merits of the Appeal, the decree for possession was confirmed with the result that the petitioner's case cannot be examined on merits in view of the dismissal of the Application for condonation of delay. During hearing he has also vehemently urged that the Appellate Bench of the Small Causes Court ought to have imposed costs and ought to have dealt with the Appeal on merits. He accordingly, while relying upon certain decisions of the Apex Court, has prayed that to meet with the ends of justice, opportunity be given to the petitioner defendant in respect of the Appeal filed by it before the Appellate Bench of the Small Causes Court. While arguing the Application filed by the respondents-plaintiffs, he has also vehemently urged that though protection was granted by this Court, the respondents-plaintiffs had moved execution application and inspite of the stay of the execution of the decree, an attempt is made to dispossess the petitioner from the suit premises. In support of his submission he has placed reliance upon the reply affidavit filed by Shri Pattanaik dated 16.3.2002 with the documents attached to the said affidavit, namely, the Panchanma and the Bailiff's report in respect of the execution proceeding initiated by the respondents plaintiffs. Mr. Shah has also contended that when the Appellate Bench of the Small Causes Court has rejected the Application for condonation of delay, without examining the merits in the Appeal, if this Court gives any direction for disposal of the said Appeal, as expeditiously as possible, he will see that the petitioner-defendant will Co-operate with the Court to enable the Appellate Court to dispose of the Appeal on merits within time bound programme. He has further contended that the petitioner-defendant will abide by whichever condition imposed by this Court and further that the amount deposited by the petitioner, as directed by this Court while issuing Rule, be permitted to be withdrawn by the respondents-plaintiffs by way of costs. He accordingly submitted that the order passed by the Appellate Bench of the Small Causes Court below Application Exh. 1 in Civil Appeal be set aside. Mr. Shah has placed reliance upon the decision of the Apex Court in the matter of N. Balakrishnan vs. M. Krishnamurthy, reported in 1998 (7) SCC 123. I the said case, the Supreme Court has examined the provisions of Sec. of 5 of the Limitation Act, 1963 and gave guidelines for the Court while examining the Application for delay and also explained how to construe "sufficient cause". As found from the said decision, the Apex Court has in term observed that length of delay is not relevant. However, the Court has also to keep in mind the consequent litigation expenses to be incurred by the opposite party and to compensate him accordingly. It is necessary for me to refer to couple to paragraphs of the said judgment, namely, Paragraphs 9 and 13. Paragraph 9 is reproduced as under:

(3.) Mr. Mihir Joshi appearing for the respondents plaintiffs has vehemently urged that when the Appellate Bench of the Small Causes Court has held that "no sufficient" cause is shown for delay, this Court will not exercise its revisional jurisdiction by setting aside the order passed by the Appellate Bench by holding that "sufficient cause" is shown for delay. He has also taken me through the Judgment wherein the Appellate Bench has while rejecting the Application for delay given cogent reason for not accepting the cause for condonation of delay. He has also taken me through the Application with the order passed below Exh. 18 in HRP Suit No. 6/99 dated 29.10.1999 filed by the petitioner defendant wherein the petitioner has moved the learned trial Judge praying for stay of the Suit on the ground that the defendant is declared as a sick company under Sick Industrial Companies (Special Provisions) Act, 1985 and the same is registered under the BIFR and prayed that the Suit be stayed as per the provisions of Sec. 22 of the Sick Industrial Companies Act, 1985 and the learned trial Judge has while dealing with the said application, rejected the said Application as back as on 29.10.1999. He has also taken me through the Application (Exh. 15) filed by the petitioner for stay of proceedings in Darkhast No. 193/2001 dated 7.2.2001 and the order passed by the learned Judge of the Small Causes Court dated 14.2.2002, wherein the learned Judge has stayed the further proceedings of Darkhast till 28.2.2002 by observing that the defendant shall prefer Appeal and obtain suitable order from the Appellate Court in respect of further proceedings of Darkhast under Sec. 22(1) of the Sick Industrial Companies Act, 1985. Mr. Joshi has also vehemently urged that on the decree is passed, an attempt is made by the petitioner defendant to delay the proceedings and while referring me to Paragraph 2 of the Application, he has highlighted that while filing the Revision Application, the petitioner tenant has suppressed material facts. As found from the details furnished in the said Application, the plaintiffs landlords have issued notice as contemplated under Sec. 12(2) of the Bombay Rent Act terminating the tenancy on 14.10.1998, which was duly served to the petitioner-defendant at Calcutta and the plaintiffs have instituted a Suit in the Small Causes Court praying for recovery of possession of the suit premises as well as praying for arrears of rent and mesne profit on 1.1.1999. In the said proceedings, Application was filed by the defendant for stay of the proceedings on the ground that the defendant is registered under the Sick Industrial Companies Act, 1985 on 9.8.1999 and the said Application was rejected by the Court on 20.10.1999 and the said order was not challenged. Accordingly the defendant has filed written statement in the said suit on 15.12.1999. The plaintiffs had filed Application under Sec. 11(4) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 praying for seeking direction regarding the deposit of rent, mesne profit and Municipal Taxes. The said Application was allowed after considering the reply filed by the defendant as per order dated 22.1.2001 and the Court has directed the defendant to deposit arrears of rent and mesne profit amounting to Rs. 7,27,650/- by granting two months time. Inspite of granting time, the defendant has not paid the said amount. Thereafter, plaintiffs have filed application before the trial Court on 27.3.2001 for taking order striking off the defence of the defendant for not complying with the order. The trial Court has decreed the suit of the plaintiffs on 12.10.2001 and directed for handing over the vacant and peaceful possession by granting time upto 12.12.2001 and further the defendant was directed to pay arrears of rent as well as mesne profit. I am not referring to the further details which were furnished in the application as it is found that even the execution proceedings were proceeded. Mr. Mihir Joshi has also placed reliance upon various judgments on the contention that this Court will not interfere with the order under challenge while exercising my revisional jurisdiction. He has placed reliance upon the decision in the matter of M.L. & B. Corporation vs. Bhutnath, reported in AIR 1964 SC 1336, wherein the Supreme Court has observed as under: