SAPAN BANERJI Vs. SHANTI DEVI JAISWAL

JUDGEMENT

(1.) BY this petition under Section 23 -E of M.P. Accommodation Control Act, the petitioner seeks to challenge the correctness, validity and propriety of the Order dated 21.8.97 and while throwing the challenge to the final order seeks to challenge the correctness of the Order dated 28.11.96 by which the tenant's application for grant of leave to defend was rejected as a consequence of rejection of application filed under Section 5 Limitation Act.

(2.) BRIEF facts necessary for disposal of the present petition are that on 27.6.96 the landlady moved an application before the Rent Controlling Authority (RCA) seeking eviction of Smt. Shanti Devi since deceased and now being represented by the present applicant. The RCA directed that notice be issued and matter be listed for hearing on 19.7.96. On 19.7.96, the counsel appeared for the present applicant and prayed for time for filing replay. It appears that on 19.7.96 application for leave to defend was not filed nor the counsel was aware of the fact that an application seeking leave to defend was required to be filed. On 12.8.96, the parties again appeared and the matter was adjourned to 24.8.96. On 24.4.96 some application was filed by the non -applicant but none was present for the present applicant. The matter was ordered to be taken up on 28.6.96 and it was to be fixed for reply on 3.9.96. The case was not taken up on 28.6.96 but was taken up for consideration on 3.9.96. On the said date, the tenant moved an application under Section 23 -C of M.P. Accommodation Control Act seeking leave to defend with an application under Section 5 Limitation Act projecting the cause for condonation of delay. The application was adjourned and ultimately after taking reply of the parties and hearing them, by order dated 28.11.96 the application seeking leave to defend was rejected. Thereafter the matter proceeded and order for eviction was passed against the present applicant who was substituted on record as the original tenant Smt. Shantidevi Banerji had expired. At this stage, it would be necessary to see paragraph 6 of the reply to the application filed under Section 5 Limitation Act, In paragraph 6 the landlord has stated that on 12.8.96 and 24.8.96 the Court (RCA) suggested the son of the non -applicant to immediately file an application under Section 23 -C of M.P. Accommodation Control Act. This allegation would mean that either the counsel appearing for the deceased/tenant had no knowledge of law or the deceased was never advised by the counsel to move an application under Section 23 -C to seek leave to defend. True it is that ignorance of law is no ground for condonation of delay, but at the same time where the Court is required to exercise its discretionary powers, it cannot lose sight of the fact that when a party engages a lawyer, it engages him presuming that the lawyer knows the legal provisions and the counsel engaged by the party would help and assist the party in his cause and case. It would be unfortunate that a lawyer engaged by the party does not advise properly and the party is required to suffer. It is expected of a lawyer that immediately after his egnagement, he would look into the provisions of law and would take necessary steps. If a lawyer in whom the party reposes confidence fails in his duty and does not take proper steps, then the fault cannot be found with the party. In such a situation, it cannot be said that the party was negligent or it did not take proper steps in accordance with law. The party after having engaged a lawyer would certainly feel content that his interest would be protected by the counsel who in the eyes of the party is an able and law knowing person. The party cannot be permitted to suffer because of the lapses on part of the counsel. The Court is required to see whether the party was negligent and whether the party did not take steps which it is required to take well within limitation. It is trite law that for the lapses on part of a counsel the party cannot be permitted to suffer. In the instant case, the notices were served on the deceased -tenant on 5.4.97; the parties were required to appear on 19.7.96. Under the law the party was required to file an application seeking leave to defend within fifteen days from the date of service of the summons. It was expected of the counsel that either on 19.7.96 or within the period allowed by law, he would file certain objections or application seeking leave to defend. The party had done its best; it had engaged a counsel and also asked him to take proper steps. It would again be necessary to refer to paragraph 6 of the reply which would show that the RCA was advising the counsel or the son of the deceased -tenant to move an application under Section 23 -C but the counsel was not ready to take any hint on the subject.

(3.) AFTER hearing the parties, this Court is of the opinion that the petition filed under Section 23 -C was raising reasonable and arguable questions. The defence raised by the defendant/tenant was not moonshine, absurd or useless. If the defence of the tenant is worth consideration, then leave is a rule. The application filed by the tenant under Section 23 -C deserves to and is accordingly allowed. The order passed by the RCA on 28.11.96 deserves to and is accordingly set aside. As a consequence of the same, final order passed by the RCA on 21.8.97 is also set aside.