MADHUKAR NARAYAN RAO Vs. RAMCHANDRA RAJARAM WANI

JUDGEMENT

(1.) THIS writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the Assistant Judge, Nasik dated September 3, 1983 in Civil Appeal No. 320 of 1981.

(2.) THE original petitioner was tenant in respect of house No. 185 situated at village Mamlatdar Lane, Malegaon. The respondent are the landlords. The respondents had filed suit for recovery of possession of the suit premises inter alia on the ground of bona fide requirement under section 13 (1) (g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Bombay Rent Act ). That suit was decreed in favour of the respondents. In execution of that decree the respondents obtained possession of the suit premises on 4-5-1974. According to the petitioners, the respondents did not occupy the suit premises within one month from obtaining possession thereof, therefore, they filed application under section 17 of the Act for restoration of possession of the suit premises. That application under section 17 was filed on 21-6-1975. It is not in dispute that this application was not accompanied by any application for condonation of delay. Nevertheless condonation of delay application was filed subsequently on 26-6-1975. The ground taken in the application for condonation of delay was that the applicant was bed ridden at the relevant time which resulted in delay. In support of that application, affidavit of applicants wife as well as of the concerned doctor who had certified that the applicant was not well was filed. The Court below however, by order dated 13-4-1981, was pleased to dismiss the application essentially taking the view that the provisions of Limitation Act have no application to this proceedings and there was no provision to condone the delay. The first Court also addressed itself to the merits of the ground for condonation of delay. The petitioners took the matter in appeal before the Assistant Judge, Nasik being Civil Appeal No. 320 of 1981. Before the Appellate Court, the respondents took objection that no appeal was provided against the impugned order. Besides, it was contended that provisions of the Limitation Act had no application to this proceedings and therefore there was no question of condoning the delay. It was further contended that in any case no sufficient cause has been shown for condoning the delay. The Appellate Court accepted the above contentions and dismissed the appeal by the impugned order which is the subject matter of challenge in the present writ petition.

(3.) THE learned Counsel for the petitioners contends that the conclusion reached by the courts below that the provisions of the Limitation Act were inapplicable is inappropriate; whereas the provisions of Limitation Act would apply by virtue of section 29 (2) of the Limitation Act. Besides, the petitioners have made out sufficient cause for condoning the delay. The learned Counsel further contends that the affidavits filed on behalf of the applicant in support of application for condonation of delay have gone unchallenged and in such a situation the issue ought not to have been answered against the petitioners. The learned Counsel has also emphasised on the observations made by the Appellate Court that even before the Appellate Court the parties were willing to go for recording of evidence with regard to the issue of whether sufficient cause for condonation of delay was made or not.