Vinayak Nilkhant Nikhar (deceased) through legal representatives & others vs Waman Narayan Potey (Dead) through legal representative Prashant Wamanrao Potey & another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2002 Supreme(Bom) 389

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
R.S. Mohite, J.
Vinayak Nilkhant Nikhar (deceased) through
legal representatives others .... Petitioners.
Versus
Waman Narayan Potey (Dead) through legal representative
Prashant Wamanrao Potey another.... Respondents.
Writ Petition No. 385 of 2002, decided on 16-4-2002.
Advocates appeared :
V.R. Choudhari, for petitioners.
A.V. Bhide, for respondent No. 1.

Headnote:Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 - Clause 21 - Scope of limitation on order of Rent Controller - His order is appealed - Late communication of the order to party - Delay in consequential efforts - Knowledge of passing of order is not actual communication of order - Rejection of appeal on grounds of delay is not proper - Fresh decision on merits ordered. - When respondent points out that summons were issued well in advanced then it should be held that they were having knowledge of passing of order of Rent Controller, inspite of this there was gross delay in applying for certified copies. Merely having know- ledge of passing of order would not be enough to hold that there was actual communication of order.

JUDGMENT - R.S. MOHITE, J.:-Rule. By consent rule is made returnable forthwith.

2. This is a writ petition challenging an order dated 23-1-2001 passed by the Additional Collector, Nagpur rejecting an appeal filed by the petitioner on the ground of limitation. The order passed by the Rent Controller which is under appeal is dated 30-12-1996. It is not seriously disputed that just before passing of this order on 23-12-1996 the father of petitioner Nos. 2 to 7 and husband of petitioner No. 1 i.e. the original tenant had expired. It appears that the order of the Rent Collector was not communicated by the Rent Controller to any of the present petitioners.

3. It was the contention of the appellants in the appeal memo that they received summons in a consequent suit being Civil Suit No. 335/98 for delivery of possession and recovery of damages from them. The appellants applied for grant of certified copy of the order thereafter on 18-9-1998. The certified copy was received by them on 18-2-1999 and the appeal has been thereafter filed on 4-3-1999.

4. I find that since there is no actual communication of the order of the Rent Controller, it cannot be said that the appeal in question was barred by the limitation. The Advocate for the respondent No. 1 points out that if summons were found to be served on the petitioners on 30-12-1996 then it should be held that they were having knowledge of passing of the order by the Rent Controller. It is submitted that inspite of this, there was gross delay in applying for certificate copies. Merely having knowledge of passing of the order would not be sufficient to held that there was actual communication of the order.

5. I find that the Additional Collector has passed his order on some typographical mistakes relating to the date of the order passed by the Rent Controller. The Additional Collector could have ascertained the correct date of the order passed by the Rent Controller by perusing the order itself instead of holding that the petitioner is making contradictory statement. He has not properly construed the provisions of section 21 of the Rent Control Order. In the circumstances I am inclined to allow this writ petition and remand the matter of decision of merits in the Appeal R.C. No. 113/A-71(2)/98-99. The Additional Collector, Nagpur will decide the appeal within a period of six months from today.

6. Rule is made absolute in the above said terms.

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[From 2002(2) Bom.C.R. 343]

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