V K C PHILIP Vs. DISTRICT JUDGE DEHRADUN

JUDGEMENT

(1.) IN this case leaned counsel for the petitioner relied upon a decision of M. P. High Court Sumera v. Madaalal, AIR 1989 MP 224, in support of his contention that; his appeal after condonation of the delay, should have been entertained by the court below (District Judge, Dehradun) who, however, rejected his application under section 5 of the Limitation Act and also dismissed his appeal as barred by time Learned counsel for the opposite parties also relied upon the aforesaid decision cited by the learned counsel for the petitioner and argued that after availing the remedy available to the petitioner under Rule 32 of the Rules framed under the U. P. Act No. 13 of 1972, he had got no right to prefer appeal also against the same order whereby the application of the landlady for release of the accommodation in the tenancy of the petitioner was allowed ex-parte. It may be mentioned that the petitioner, after the ex-parte order allowing the release application had been passed on 24-11-87, had applied before the learned Prescribed Authority for getting set aside the same Ths matter remained pending for a considerably long time and the prayer for recalling the order and restoration of the case to its original number was ultimately rejected on 27-8-93. The petitioner, thereafter, preferred appeal on 1-9-93 before learned District Judge. Dehradun,, which was opposed mainly on the ground of limitation as it had been filed! after more than five years of the ex parte order whereby the release application was allowed.

(2.) FOR the petitioner it was contended that the appeal was filed by him only after four days of the rejection of his application for getting set aside the ex parte release order and this very short period of limitation should have been ignored and his application under section 5 of the Limitation Act should have been allowed by the learned District Judge, for the opposite party, however, it was contended that the; period of limitation had commenced to run since 24-11-87 when the release application was allowed by the learned Prescribed Authority and the delay of five years and about ten months had not been explained satisfactorily by the petitioner due to which the Court below rightly rejected the application under section 5 of the Limitation Act and also dismissed the appeal as barred by time. After carefully considering the submissions put forward by the learned counsel for the parties, I am of the opinion that no interference was permissible under law through this writ petition as the court below had correcty decided the matter between the parties. The application for recalling the release order dated 24-11- 87 and restoration of the release application to its original member was passed on its merits on 27-8-93 due to which benefit of section 14 of the Limitation Act was not available to the petitioner. His contention, therefore, that there was delay of four days only was wholly (incorrect. He was under the obligation to explain the delay of five years and about ten nonths and only then the application under section 5 of the Limitation Act could be allowed by the court below.

(3.) THE writ petition is dismissed at the stage of admission. THE petitioner shall not be evicted from the accommodation in dispute before the expiry of two months from today provided he gives underaking in the registry that, thereafter, he shall hand over vacant and peaceful possession of the dispute premises to the landlady. In case undertaking is not given, the order of his eviction shall be executable atonce. THE underaking should be furnished In fifteen days. Petition ditmsssed