Dismissed

The Estate Officer, and Ors. v. M/S Amar Pharma and Equipments and Ors.

Bombay HC2 Nov 2012LPA/232/2012

Case brief

AI extract

What is this about?

The High Court held that the Single Judge was justified in condoning a delay of 859 days in filing an appeal under the Public Premises Eviction Act because the eviction order was not properly served per statutory rules. However, the appeal challenging the Single Judge's order was dismissed, and censure remarks against the City Civil Court Judge were expunged.

What did the court decide?

The appeal is dismissed and strictures on the Single Judge passed by the Single Judge are expunged.

The Estate Officer, and Ors. Vs M/S Amar Pharma and… — Property and Title | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

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CIVIL APPELLATE JURISDICTION

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LETTERS PATENT APPEAL NO.232 OF 2012 IN WRIT PETITION NO.9858 OF 2010

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The Estate Officer and Anr. ...Appellants v/s. M/s.Amar Pharma & Equipments and Anr. ...Respondents

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Mr.A.V.Anturkar with Mr.Milind More for Appellants.

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Mr.Pravin Samdani, Sr.counsel with Ms.Trupti Shetty and Mr.Lalal Gupta i/b M/s.Dhruve Liladhar & Co. for Respondents.

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CORAM: MOHIT S. SHAH, C.J. & N.M. JAMDAR, J. DATE : 2 November 2012.

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P.C.

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This appeal under Clause 15 of the Letters Patent is directed against the judgment dated 7 September 2012 of the learned Single Judge allowing the writ petition filed by the respondents herein M/s.Amar Pharma & Equipments and Mr.Tarun Khatwani. The writ petition challenged the order of the City Civil Court, by which the learned Judge of the City Civil Court, Mumbai declined to condone the delay in filing an appeal against the order of eviction dated 29 January 2008 under Section 5(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as “the Act”).

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The order dated 29 January 2008 passed by Estate Officer of the Life Insurance Corporation for eviction of the writ petitioners under Section 5(1) of the Act was challenged by the writ petitionerrespondents herein by filing an appeal before the City Civil court on 31 August 2010 with an application for condoning the delay in filing the appeal stating that the appellants in the appeal before the City Civil Court (respondents herein) were not aware of the impugned order till 5 August 2010.

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The case of the writ petitioners was that it was only when they received the letter dated 5 August 2010 from LIC informing them that possession of the premises had been taken by LIC on 11 June 2010 in execution of the order dated 29 January 2008 of the Estate Officer, that the writ petitioners came to know about the impugned order of eviction passed by the Estate Officer. The City Civil court did not accept the said explanation as sufficient cause and refused to condone the delay. The ground which weighed substantially with the City Civil Court was that writ petitioners were served with the notice of eviction proceeding and the writ petitioners had also acknowledged the receipt of show cause notice on 14 April 2007 and therefore it was not open to the writ petitioners to raise any contention about non-service of the eviction order dated 29 January 2008.

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Against the aforesaid order of the City Civil Court, the respondents herein filed the writ petition. The learned Single Judge has taken a view that what is relevant for considering whether sufficient cause is shown for condoning the delay is the fact about service of the impugned eviction order and not service of show cause notice in the eviction proceeding. It appears that the appellants-LIC were not able to

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show as to when the impugned order of eviction dated 29 January 2008 was served upon writ petitioners, but it was contended that since the impugned order was affixed on the outer door of the premises in question and the possession of the premises was also taken over by LIC and third party rights had been created on 6 July 2010, there was no justification for condoning the delay.

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It was the case of the writ petitioners that on account of disputes between the partners, the office had remained closed and therefore the notice alleged to have been affixed on the outer door of the premises was not seen by the writ petitioners.

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Mr.Anturkar, learned counsel for appellants has vehemently submitted that there is a sheer negligence on the part of writ petitioners in not appearing before the Estate Officer in spite of service of notice in April 2007, similarly the office had remained closed when the eviction order was passed and the possession was taken. Hence, the City Civil Court was justified in refusing to condone the delay of 859 days in filing the appeal before the City Civil Court.

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The learned counsel also vehemently submitted that the appeal is filed by so called firm which is already dissolved as well as Mr.Tarun Khatwani, who was not shown as partner in the application for registration of firm submitted in the year 1974, nor was his name shown in the letter dated 28 January 2009 by one of the partners of the firm to the Registrar of Firms indicating that notice dated 18 July 2008 of dissolution of firm was served on each of partners and the Registrar of Firms was requested to dissolve the firm with effect from the date of notice.

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On the other hand, Mr.Samdani, learned counsel for the respondents herein (original writ petitioners and appellants before the City Civil Court) has opposed the appeal and submitted that issues about so called dissolution of the firm or Mr.Tarun Khatwani not being partner of the firm were not raised by the LIC at the hearing of the appeal before the City Civil Court. No such contention was raised either in their affidavit-in-reply to the application for condonation of delay nor in their reply to the writ petition challenging the order of the City Civil Court and therefore appellants are not entitled to raise any such contentions in the appeal, which are pure questions of fact.

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As regards the contention that the firm was served with the show cause notice of the eviction proceedings, the learned counsel submitted that what is relevant is the date of service of the eviction order passed under Section 5(1) of the Act. Our attention is invited to the provisions of Section 9 of the Act and Rule 4 of the 1974 Rules framed under the Act. It is submitted that Section 5(1) and Section 9(2)(a) read with Rule 4 of the Rules require that a copy of the order issued under Section 5(1) of the Act shall be served by delivering, or tendering a copy of the order to the person for whom it is intended or to any adult member of the family or by sending it by registered post acknowledgement due in a letter addressed to that person at his usual or last known place of residence or business. Out attention is invited to the letter-head of the firm on record indicating following two addresses:-

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Head Office - 269, 4^th floor, Reliance Building, Dr.D.N.Road, Fort, Mumbai-400 001.

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Administrative Office- IPWT House, Plot No.34, Deonar Ancillary Industrial Complex, Next to Aries (Kamalwala) Factory, Deonar Govandi (West), Mumbai-400 043.

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LIC was, thus, aware of the other address of the firm.

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Provisions regarding service of notice of eviction order are to be found in Section 5(1) read with Section 9(2)(a) read with Rule 4 of the Act and the Rules. The provisions read as under -

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“ 5. Eviction of unauthorised occupants.-(1) If, after considering the cause, if any, shown by any person in pursuance of a notice under section 4 and [any evidence produced by him in support of the same and after personal hearing, if any, given under clause (b) of sub-section (2) of section 4, the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.

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Appeals. - (1) …..

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(2) An appeal under sub-section (1) shall be preferred,-

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(a) in the case of an appeal from an order under section 5, within twelve days from the date of publication of the order under sub-section (1) of that section.

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Provided that the appellate officer may entertain the appeal after the expiry of the said period, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

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Manner of service of notices and orders. -(1) In addition to any mode of service specified in the Act under subsection (1) of section 4 … or an order issued under section sub-section (1) of section 5 of the said Act shall be served by delivering, or tendering a copy of the notice or order, as the case may be, to the person for whom it is intended or to any adult member of his family, or by sending it by registered post acknowledgment due in a letter addressed to that person at his usual or last-known place of residence or business.”

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Conjoint reading of these provisions indicate that, a copy of the order is to be delivered or tendered to any partner of the firm or adult member of the family. If an attempt to deliver the copy is unsuccessful then next mode of service is to be resorted to i.e. sending the copy of the order by registered post. When such a letter is sent by registered post acknowledgement due, it should be addressed to the firm or the partners at their usual place of residence or business. If the service cannot be effected to them at such usual place of residence or business, letter would have to be addressed to the last known address of the residence or business.

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In the facts of the present case, the LIC has not shown that they made any effort to follow the sequence in spite of the LIC having the address of the administrative office of the firm. In view of this position the finding given by the learned Single Judge that the impugned eviction order was not properly served and was not in accordance with law cannot be faulted with.

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In the appeal we are considering the validity of the discretionary order passed by the learned Single Judge regarding condonation of delay. The Apex Court in the case of N. Balakrishnan Vs M.Krishnamurthy, (1998) 7 Supreme Court Cases 123 , has distinguished between the approach to be adopted while interfering with the order of refusal to condone the delay, and the order condoning the delay. The Apex Court has laid down that the Appellate Court will be slow to interfere when the delay is condoned in the positive exercise of discretion. The Apex Court held as under :-

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“9. It is aximomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court”

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(emphasis supplied)

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As regards the other contentions about alleged dissolution of the firm and Mr.Tarun Khatwani being or not being the partner of the firm, these are all questions of fact, which were never raised by LIC

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before the City Civil Court or in the reply to the writ petition. Hence, we are not inclined to entertain these contentions in this Letters Patent Appeal.

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Even while dismissing the appeal on above grounds, we make it clear that it will be open to appellants/LIC to raise all available contentions at the hearing of the appeal before the City Civil court, including the contention about alleged dissolution of the firm and the contention that Mr.Tarun Khatwani was not a partner of the firm on the date of passing of the eviction order. The City Civil Court , as and when such contentions are raised before the City Civil Court, shall adjudicate upon such contentions and decide the same in accordance with law without being influenced by any observations made in this order, which are for very limited purpose on question of condonation of delay in filing the appeal before the City Civil Court.

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As regards the contention that the LIC has already inducted another party into the premises in question, we record the statement of Mr.Samdani, learned counsel for respondents herein that the said party will be joined as a party-respondent in the appeal before the City Civil Court and that application for this purpose will be made before the City Civil Court by 10 December 2012. We also make it clear that the contentions of LIC that they had followed prescribed procedure in the eviction proceedings right up to the date of passing of eviction order dated 29 January 2008 and taking over possession thereof are all contentions which LIC will be at liberty to raise before the City Civil Court at the hearing of the appeal.

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Before parting with the matter, we are of the view that though the learned Single Judge was justified in setting aside the order of the City Civil Court and in condoning the delay, the strictures passed by the learned Single Judge against the learned Judge of the City Civil Court were not called for. In the facts and circumstances of the case, there was considerable delay in filling the appeal before the City Civil Court, whether writ petitioners had shown sufficient cause for condoning such delay was an issue on which two views were possible. The City Civil Court took one view and the learned Single Judge took another view. That cannot be a ground for passing such strictures. Therefore, the strictures made by the learned Single Judge against the learned Judge of the City Civil Court are hereby expunged. Subject to above observations, the appeal is dismissed.

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CHIEF JUSTICE

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The Estate Officer, and Ors. v. M/S Amar Pharma and Equipments and Ors.

Case brief

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The Estate Officer, and Ors. v. M/S Amar Pharma and Equipments and Ors.

Case brief

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