NOOR BEE Vs. AFROJ BEE

JUDGEMENT

(1.) APPELLANTS, who are the legal representatives of original tenant Smt. Noor Bee, have preferred this second appeal against the judgment and decree dated 23-7-2003 passed by XVth Additional District Judge, Indore in Civil Appeal No. 43/2003. By the impugned judgment and decree, appeal preferred by the tenant was dismissed and the eviction decree passed by the Trial Court in Civil Suit No. 503-A/98 was maintained.

(2.) RESPONDENT No. 1 is the widow of Fazil Mohammad and respondent Nos. 2 and 3 are the sons of late Fazil Mohammad. They filed a civil suit against Smt. Noor Bee and appellant No. 4 on the allgations that the respondents are the owner and landlord of house No. 204/3 situated in Juna Risala, Indore. The said house was let out to Smt. Noor Bee on monthly payment of rent of Rs. 100/- for residential purposes. According to plaintiffs, Smt. Noor Bee had not paid the rent since January, 1983. The plaintiffs served a notice. After service of notice, Smt. Noor Bee deliberately sent a money order on 26-10-1994 in the name of late Fazil Mohammad. It was further alleged that Smt. Noor Bee without any persmission had delivered the possession of the suit accommodation to appellant No. 4 on 12-4-1994 and left the suit accommodation in order to reside with her son. Plaintiff/landlord determined the tenancy with effect from 30-4-1998 and thereafter filed a suit as mentioned herein above. After institution of the suit and despite service of summons, defendants did not file any written statement and allowed the Trial Court to proceed ex parte in the suit against them. Learned Trial Court after recording the evidence of the plaintiff, decreed the suit vide judgment and decree dated 1-9-1999 passed in Civil Suit No. 503-A/98 under Section 12 (1) (a) (b) of the M. P. Accommodation Control Act, 1961 and directed defendants to hand over vacant possession to plaintiffs/landlord. Against the said decree, an appeal was preferred by the defendants. The appeal preferred was barred by limitation therefore; an application under Section 5 of the Limitation Act was also filed. After filing of the first appeal defendant No. 1 Smt. Noor Bee expired, therefore, other legal representatives appellant Nos. 1 to 3 were brought on record. Learned Lower Appellate Court after recording the evidence on the question of condonation of delay came to the conclusion that the defendants/tenants failed to make out good and sufficient cause as they could not explain properly each day's delay and accordingly rejected the application under Section 5; as a consequence the appeal was also dismissed. The present appeal is against the said order.

(3.) AFTER having heard learned Counsel for appellants at length and going through record, in the considered opinion of this Court there is no merit and substance in this appeal. After appreciating the evidence recorded by it, Lower Appellate Court arrived at a finding of fact that appellants could not establish good and sufficient cause for the condonation of delay in preferring the appeal except bald assertion. Learned Lower Appellate Court further found that Counsel engaged by the defendants pleaded no instructions in the Trial Court when despite of service registered notice issued by the Counsel, defendants did not contact him. As result application filed by the appellants under Section 5 of Limitation Act, 1963 was dismissed and consequently appeal too was dismissed. In the case of Ratansingh v. Vijaysingh and Ors. , reported in (2001) 1 SCC 469, the Supreme Court had held that rejection of an application for condonation of delay under Section 5 of the Limitation Act and the consequent dismissal of an appeal does not result in a decree inasmuch as there was no adjudication nor determination of the rights of the parties in the suit. After noticing the definition of decree as contained in Section 2 (2) of the Code of Civil Procedure it was held as under :-