SHRI MANMOHAN CORPORATION Vs. SHEELA SHARMA

JUDGEMENT

(1.) This Writ Petition has been filed by Shri Manmohan Corporation, a tenant in the premise of the respondent. The respondent filed a petition under Section 15(1) of the Rajasthan Rent Control Act, 2001 for eviction of the petitioner on the ground of reasonable and bona fide necessity of her son Dr. Raman Sharma and his wife Dr. Rajni Sharma. The Tribunal by Order dated 19.8.2010 allowed the petition and directed eviction of the petitioner. Aggrieved thereby, petitioner filed an appeal before the Appellate Rent Tribunal. During pendency of the appeal, Dr. Ram Sharma S/o. respondent-applicant Dr. Sheela Sharma, filed in application under Order 22 Rule 4(3) read with Rule 11 of the Code of Civil Procedure on 10.10.2011 contending that the respondent has executed a Will on 22.11.2008 in favour of Dr. Raman Sharma and all right, title and interest is being transferred in favour of Dr. Raman Sharma. Since the application for impleadment of legal heirs has not been filed by the appellant in appeal, the appeal becomes infructuous. The petitioner filed an application under Order 22 Rule 4 for substitution of original plaintiff by his legal heirs and another application under Order 22 Rule 9 of the C.P.C. for setting 5 of the Limitation Act for condonation of delay. The learned Appellate Rent Tribunal, however, dismissed the application as having become abated. Hence this Writ Petition. Shri M.M. Rajan, learned Senior Advocate appearing for petitioner, argued that even though original landlady respondent Dr. Sheela Sharma expired on 14.11.2010 in California in the United State of America (USA), but the fact thereabout came to the knowledge of the petitioner only on 10.10.2011 when her son Dr. Ram Sharma moved the application. According to Order 22 Rule 10 of the C.P.C. Dr. Raman Sharma or the Counsel for the original respondent were duty bound to inform the petitioner/applicant of this fact. The petitioner had no knowledge of the death of Smt. Sheela Sharma and could not have any knowledge as she was not residing in India and had died in California (USA) Finding rendered by learned Rent Tribunal that the application has been filed with delay of more than one year is wholly perverse. The limitation for filing application under Order 22 Rule 4 of the C.P.C. shall start only from 10.10.2011. The period of limitation of 90 days counting from that date would expire on 8.1.2012. Since the appeal was listed on 2.12.2011, on which date 28.1.2012 was given as the next date, the respondent could not file application in time. It was also because from 10.1.2012 to 27.1.2012 the work was suspended by the Advocates and the application was filed on next date of hearing on 28.1.2012. Learned Counsel submitted that the application was delayed by 19 days, of which later period of 17 days was when the lawyers were absenting from work therefore this was good and sufficient reason for setting aside for abatement and condonation of delay. Learned Senior Advocate, in support of his argument, has relied on judgment of the Supreme Court in Esha Bhattarcharjee vs. Managing Committee of Raghunathpur Nafar Academy & Ors., 2013 12 SCC 649.

(2.) Shri M.M. Rajan, learned Senior Advocate appearing for petitioner, has submitted that the Section 21(3) of the Rajasthan Rent Control Act, inter alia provides that the Rent Tribunal and the Appellate Rent Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908, but shall be guided by the principle of natural justice. The provision further stipulates that subject to other provisions of this Act or the Rules made thereunder, the Tribunal shall have powers to regular their own procedure for the purpose of discharging their functions under this Act. In Clause (g) of Section 21(3) thereof, power has been conferred on the Tribunal for bringing legal representatives on record. The overriding consideration of sub-sec. (3) of Section 21 of the Act of the principle of natural justice would nonetheless apply. Therefore, when Dr. Raman Sharma, the sole representative, who moved the application after death of his mother, dismissal of the appeal as abated, despite his presence has occasioned failure of justice.

(3.) For contra, Shri Manish Sharma, learned Counsel for respondent has opposed Writ Petition and submitted that the Appellate Rent Tribunal has rightly rejected the applications for setting aside abatement and condonation of delay because the reasons given by the petitioner therein did not constitute sufficient cause and were not bona-fide. It was factually incorrect that the application could not be filed in time because of the strike of the lawyers. Period of limitation had expired, even as per the petitioner, on 8.1.2012, whereas the lawyers started boycotting the Court on 11.1.2012, the assertion of the petitioner is therefore factually incorrect. Learned Counsel for the respondent has relied on judgment of the Supreme Court in Balwant Singh vs. Jagdish Singh & Ors., 2010 8 SCC 685, and argued that the Supreme Court in that case has held that expression "sufficient cause" implies presence of legal and adequate reasons. There is no straitjacket formula uniformly applicable to all cases. Test of Judge whether or not a cause is sufficient is to see whether it could have been avoided by the party by exercise of due care and attention. Learned Counsel also relied on Division Bench judgment of this Court in Hari Ram Sharma vs. Rajasthan State Electricity Board & Anr., where in the matter was dismissed in default as the Counsel did not appear in Court because lawyers had decided to boycott the Courts and observed strike and in that situation the Court held that there was no sufficient cause for the absence of the Counsel and denied to restore the case.