1992 Supreme(MP) 147

V.S. Kokje, J.
Ramnarayan v. Bhaskar
C.R. No. 238 of 1991 (I); Decided on 10.3.1992

Headnote:(1) Accommodation-Control Act, 1961 (M.P.) -- Ss. 23-E and 23-C - leave to defend illegally refused -- authority failed to exercise its jurisdiction d`revision maintainable.

        (2) Limitation Act, 1963 -- S. 5 -- application for condonation of delay - cannot be dismissed without enquiry -- parties should be given opportunity to lead evidence.

       

       ¼1½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-iz-½ & /kkjk 23&³ rFkk 23&x & izfrokn dh btktr voS/k rkSj ij ukeatwj dh xbZ & izkf/kdkfjrk iz;ksx djus esa vlQy jgk & iqujh{k.k pykus ;ksX; gSaA

       

        ¼2½ ifjlhek vf/kfu;e] 1963 & /kkjk 5 & foyac ekQ fd, tkus ds fy, vkosnu & tk¡p ds fcuk [kkfjt ugha dh tk ldrh & i{kdkjksa dks lk{; izLrqr djus dl volj fn;k tkuk pkfg,A

       

        The non-applicant-landlord filed an application for ejectment of the applicant under section 23-A of the M.P. Accommodation Control Act 1961 (hereinafter referred to as the Act) before the Rent Controlling Authority Indore on 11-3-91. The case was fixed for return of notice On 26-3-91 on which date the notice was reported to be served and the case was fixed for 3-4-91 for consideration on the point of grant of leave to defend. On 3-4-91 an application under section 5 of the Limitation Act along with an application for leave to defend was filed. In the application under section 5 of the Limitation Act it was alleged that the summons was served on the applicant-defendant on 18-3-90 and leave to defend was said to have been sought within 15 days of this date. It was further alleged that because of ignorance of the legal position and as the Court itself had given 3-4-91 as the date for consideration of grant of leave to defend as also because the applicant was ill since 1-4-91, he could not contact his lawyer and filed an application for leave to defend resulting in the same being filed a day beyond limitation. From a perusal of the proceedings of the case before the Rent Controlling Authority it is clear that the Court not only did not grant any opportunity to the applicant to produce evidence in support of his application under section 5 of the Limitation Act but in the final order also did not discuss the Contents of the application under section 5 of the Limitation Act and putting the cart before the horse dismissed that application, because it had already rejected the prayer of grant of leave to defend on the ground that the application for leave to defend was filed beyond limitation. The Court has thus committed patent illegality obliging this Court to interfere and set aside the order dated 6.6.91.

       

        The non-applicant has referred to some case law on the point of maintainability of the revision petition, as refusal to grant of leave to defend would not amount to a case decided giving cause of action for a revision application.

        In the facts and circumstances of the case it is quite clear that the Court has failed to exercise its jurisdiction to decide the application under section 5 of the Limitation Act after giving an opportunity to the applicant to prove the facts amounting to sufficient cause.

       

        The impugned order is, therefore, set aside and the Rent Controlling Authority is directed to first allow the parties to lead evidence on the application under section 5 of the Limitation Act and record specific conclusion as to whether a sufficient cause for delay has been made out or not and if sufficient cause is made out, then to consider whether in the circumstances of the case, leave to defend could be granted or not. In the result, the revision application is allowed and the impugned order dated 6.6.91 of the Rent Controlling Authority Indore is set aside. The revision petition is accordingly disposed or with the directions given above. Record of the Rent Controlling Authority be sent back. Revision allowed.