S M SIRAJUDDIN Vs. K SYED MOHAMED

JUDGEMENT

(1.) THE petitioner is a tenant under the respondents and he was respondent in RCOP.No,556 of 2008 on the file of the XIII Judge, Small Causes Court, Chennai filed by the respondents for eviction under Order 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18/1960 as amended by Act 23/1973. An exparte eviction order was passed by the learned XIII Judge, Small Causes Court on 16.6.2008. Hence the petitioner filed an application under rule 12(3) of the Tamil Nadu Buildings (Lease and Rent Control) Rules 1974 to set aside the exparte eviction order along with an application under Section 5 of the Limitation Act to condone the delay of 306 days in filing the said application. In the affidavit filed in support of the application, he stated that he is an Air Conditioner mechanic and he would not be available at all times in his godown, that he was not aware of the summon sent by the landlord and hence he could not attend the court on 11.4.2008.

(2.) IN the counter affidavit filed by the landlord, the above contentions have been controverted and it has been stated that the petitioner has not properly explained the delay of 306 days and that the petition has been filed with malafide intention to curtail the proceedings without paying any rent to the respondents. Learned XIII Judge of Small Causes Court, Chennai dismissed the application by observing that since the petitioner was served with summons through post, he was put on knowledge of the rent control proceedings and hence the delay can not be condoned. It is evident from the order challenged before this court that the court below carefully scrutinised the court records and found that the petitioner was served with notice through post. Having received the notice from the court, the petitioner did not appear before the court and hence he was set exparte. The reason adduced in the affidavit for condoning the delay of 306 days is not at all convincing and also not satisfactory.

(3.) MRS.R.Gowri, learned counsel counsel for the respondents drawn the attention of this court to a decision rendered in Dhanalakshmi Financiers, rep. by its Managing Partner T.M.Kathirvel vs. Soundarammal and others reported in (2009) 1 MLJ 1328 for a proposition that if any valuable right is accrued to the other side, the delay could not be condoned. It was a case where a delay of 1573 days was sought to be condoned and the said claim was rejected by observing that the petition was represented beyond the time limitation, which is prescribed for filing the same. In yet another judgement reported in 2009 5 MLJ 276 (State Bank of Mysore, Chennai Main Branch, Chennai vs. Syarikat Pengerak Penang, a Registered partnership Firm by their Power of Attorney Agent K.T.M. Mohamed Basheer, Chennai and others), this court observed that when there is absolutely no sufficient cause or reasoning has been given in the affidavit in the petition filed under Section 5 of the Limitation Act to condone the delay of 1240 days in preferring a petition, the same could not be condoned. The Learned Judge of the Honourable Supreme Court referred to various judgments of the Apex Court as well as this court to reach his conclusion.