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2010 Supreme(All) 3607
ALLAHABAD HIGH COURT
Rakesh Tiwari, J.
Arriwala Mill Store -Appellant
Versus
Lala Chhakkilal Agrawal Trust & others -Respondent
C.M.W.P. No. 61810 of 2010
Decided On : 08-10-2010
., Rajesh Tiwari
The judgment emphasizes the requirement of sufficient cause for delay condonation and the need for parties to approach the court with clean hands.
Headnote:
Delay Condonation - Rent Case - U.P. Act No. 13 of 1972, Section 21(1)(b), Section 22 - 2001 (44) ALR 752 - Section 5 of the Limitation Act - Ramlal and others v. Reewa Coalfields Ltd. - The State of West Bengal v. The administrator, Howrah Municipality and others and G. Ramegowda, Major and others v. Special Land Acquisition Officer, Bangalore - N. Balakrishnan v. M. Krishnamurthy
Fact of the Case:
The petitioner filed multiple restoration applications after his rent appeal was dismissed in default, claiming non-appearance due to his counsel's absence. The court found the petitioner's actions deliberate and dismissed the writ petition.
Finding of the Court:
The court found the petitioner's non-appearance and subsequent filing of restoration applications deliberate, lacking sufficient cause. The court declined to interfere, citing the petitioner's lack of clean hands.
Issues: Non-appearance of petitioner and counsel, deliberate filing of restoration applications, sufficiency of cause for delay condonation.
Ratio Decidendi: The court emphasized the need for sufficient cause for delay condonation, citing precedents such as Ramlal and others v. Reewa Coalfields Ltd. and The State of West Bengal v. The administrator, Howrah Municipality and others and G. Ramegowda, Major and others v. Special Land Acquisition Officer, Bangalore.
Final Decision: The writ petition was dismissed, and the court declined to interfere, citing the petitioner's lack of clean hands.
1. Heard learned counsel for the parties and perused the record.
2. The writ petition has been filed with the prayer for quashing of the order dated 30.9.2010 passed by Addl. District Judge, Kanpur Nagar in Misc. Case No. 77/74/2003, appended as Annexure-8 to the writ petition.
3. The brief facts of the case are that the plaintiff/respondent filed an application under Section 21 (1) (b) of the U.P. Act No. 13 of 1972 which was registered as Rent Case No. 33 of 1992 for release of one room shop in Premises No. R/O 78/32, Bhagat Singh Market, Bhagat Singh Road, Anwarganj, Kanpur under the tenancy of the petitioner. The rent case no. 33 of 1992 was allowed directing the petitioner to vacate the disputed shop. The petitioner along with other proforma respondent preferred an appeal no. 98 of 1995 under section 22 of the Act before the District Judge, Kanpur which was dismissed in default on 28.4.2000.
4. A restoration application was filed on 31.5.2000 for restoring the rent appeal which was registered as Misc. Case No. 30/74/2000 which was also dismissed for non-prosecution on 21.10.2000.
5. The contention of learned counsel for the petitioner is that he came to know about the order dated 21.10.2000 for the first time on 6.3.2002 and filed restoration application supported by an application under section 5 of Limitation Act for recalling the order as well as for restoring the misc. cases no. 30/74/2000 to its original number. The aforesaid misc. restoration application was registered as case no. 6/74/2000 which too was dismissed in default on 18.10.2003 by the Additional District Judge, Kanpur. Thereafter, on 20.10.2003 another restoration application which was registered as misc. case no. 77/74/2003 was filed for restoring misc. case no. 6/74/2000. On 30.9.2010, the Additional District Judge, Kanpur dismissed the misc. case no. 77/74/2003.
6. Aggrieved by the order dated 30.9.2010 passed by Addl. District Judge, Kanpur by which misc. case no. 77/74/2003 was dismissed, the petitioner has come before this Court in this writ petition.
7. From restoration application filed by the petitioner in the court below, it appears that the petitioner wanted to remain in disputed shop by hook and crook and as such he got his case dismissed in default again and again and thereafter filed restoration applications one after another in order to prevent the release order passed in favour of the landlord. According to the findings recorded by the court below, the act of the petitioner was deliberate.
8. Relevant portion of order dated 30.9.2010 passed in misc. case no. 77/74 of 2003 is quoted below:
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9. Learned counsel for the petitioner has relied upon a judgment rendered in the case of M.K. Prasad vs. P. Arumugam reported in 2001 (44) ALR 752, wherein the apex court considering delay condonation application has held that party concerned should have been more vigilant, but on his failure to adopt extra vigilance, ground for ousting him from the litigation, the court should have kept in mind the judgment impugned and the extent of property involved between the parties.
10. Relevant paragraphs no. 7 and 8 in this regard are produced as under:
7. In construing Section 5 of the Limitation Act, the Court has to keep in mind that discretion in the section has to be exercised to advance substantial justice. The Court has a discretion to condone or refuse to condone the delay as is evident from the words "may be admitted" used in the section. While dealing with the scope of Section 5 of the Limitation Act, this Court in Ramlal and others v. Reewa Coalfields Ltd. held:
"Section 5 of the Limitation Act provides for extension of period in certain cases. It lays down, inter alia, that any appeal may be admitted after the period of limitation prescribed therefore, when the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within such period. This section raises two questions for consideration. First is, what
