Rent Controller condoned delay in filing application to set aside ex parte order of eviction.

1. Tenant in RCOP No.143 of 1995 on the file of Rent Controller/XIV Small Causes Court, Madras is the revision petitioner.

2. Eviction petition was filed by landlord under section 14(1)(b) of Tamil Nadu Buildings (Lease and Rent Controller) Act alleging that the scheduled building is required for immediate demolition and reconstruction. Tenant filed counter stating that the claim is not bona fide.

3. On22. 1996, the case was posted for evidence on which date PWl was examined and petitioners witness was called absent and consequently he was declared exparte and an order of eviction was also passed. Tenant moved an application to set aside the ex parte order with an application to condone delay of 267 days as per M.P.No.780 of 1996. In the affidavit in support of the application tenant said that they along with other members of family went to their native village where they met with an accident on 20.2.1996 and consequently they could not appear in court when the case was called. They could return to Madras only during second week of October and they came to know that an exparte order has been passed. Tenant stated that in view of the

"accident they could not file application in time and the delay occasioned in filing application is to be condoned.

4. Landlord filed detailed counter affidavit disputing the allegations made in the affidavit.

5. Rent Controller as per order dated 24. 1999 held that the application will stand allowed on payment of cost of Rs.500 on or before 24. 1999. Rent Controller also found that interest of justice also require that opportunity should be given to tenant to substantiate their case and they also made out case to have the delay condoned. But since there was delay, they must be put on terms. It is not disputed that landlord accepted the cost though under protest.

6. Against the order allowing the application, landlord filed R.C.A.No.361 of 1999 on the file of Appellate authority/Vll Small Causes Court, Chennai. Appellate authority reconsidered the matter and set aside, the order of Rent Controller. Appellate authority was of the view that tenant has not explained satisfactorily the reasons to have the delay condoned under Section 5 of Limitation Act. Various decisions of Honourable Supreme Court and other High Courts were also taken into consideration to hold that tenant, has not explained sufficient cause for condoning the delay. The application was dismissed.

7. It is against the said finding of appellate authority, tenants have come to this Court with this revision petition.

8. Since caveat was entered, I heard the revision at the admission stage itself with consent of parties.

9. Learned counsel for petitioner made two submissions. Firstly, landlord has accepted the cost and the same precludes him from challenging the order before appellate authority. Landlord cannot approbate and reprobate and by his conduct he is precluded from questioning the order of the Rent Controller. Further argument is that even if the cost is received under protest, that will not make difference. Secondly, Rent Controller has exercised his discretion and that discretion is not liable to be interfered with by the appellate authority unless it is a case of perverseness or patent illegality. Even if a different view is possible, the discretion exercised by subordinate authority is not liable to be interfered with.

10. As against the said contentions, learned counsel for respondent submitted that in cases where cost is received under protest. Landlord is not precluded from challenging the order. Reliance was placed on the decisions reported in Randhir Singh v. Kamlesh, AIR 1980 P & H 70 and Ram Gopal v. Man Chand, AIR 1981 All. 352. Learned counsel also submitted when the discretion exercised by Rent Controller is against the settled legal position, appellate authority will be justified in interfering with the same in appeal even though it is discretionary order.

11. I heard the counsel on both side