Dismissed

Anil Kumar R.Kamdar v. Dasari Vaikuntham (died per L.Rs.)

Telangana HC9 Sept 2011CRP/5025/2009

Case brief

AI extract

What is this about?

The court dismissed the petition seeking to condone a 10-day delay in setting aside an ex parte eviction order. It held that the petitioners' claim of their clerk's negligence was not bona fide, given they failed to verify case status online after receiving prior notices, deeming them grossly negligent.

What did the court decide?

Condonation of the 10-day delay for setting aside the ex parte order is denied; application to set aside the order is dismissed.

Anil Kumar R.Kamdar Vs Dasari Vaikuntham… — Civil Procedure and Limitation | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR

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CIVIL REVISION PETITION M.P. NO.5811 OF 2010 AND CIVIL REVISION PETITION M.P. NO. 1207 OF 2011 IN CIVIL REVISION PETITION NO.5025 OF 2009

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ORDER:

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Civil Revision Petition M.P. No.5811 of 2011 is filed seeking to condone the delay of ten days in filing an application for setting aside the order dated 21.07.2010 made in Civil Revision Petition No.5025 of 2009. Civil Revision Petition M.P. No.1207 of 2011 is filed seeking restitution of possession in favour of the petitioners therein in respect of the eviction in petition schedule property in R.C.No.394 of 2002, on the file of II Additional Rent Controller, Hyderabad.

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The facts of the case, in brief, are as follows:

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The petitioners and respondents 5 and 6 herein are the legal heirs of the original tenant Dasari Vaikuntham. They are respondents before the Rent Controller. The 1^st respondent herein is the original owner of the petition schedule premises. The respondents 2 to 4 are his legal heirs.

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On the ground of bona fide requirement, under Section 10(3) (a)(iii)(b) and 10(3)(a)(iii)(c) of A.P.Buildings (Lease, Rent & Eviction Control) Act, 1960 (for short, the Act), respondents 1 to 4 filed petition vide R.C.No.394 of 2002 on the file of

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II Additional Rent Controller, Hyderabad, seeking eviction of the petitioners and also filed R.C.No.399 of 2002, under Section 4 of

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the Act, before the III Additional Rent Controller, Hyderabad, seeking fixation of fair rent from the date of application in respect of the petition schedule premises. It appears that the eviction petition was filed on 03.10.2002 and petition for fixation of fair rent was filed on 04.10.2002. The Rent Controller allowed R.C.No.399 of 2002 on 16.10.2006, fixing fair rent at Rs.4,050/- from the date of petition and, R.C.No.394 of 2002 was allowed on 27.09.2007 directing the petitioners to vacate and handover the petition schedule premises within two months from the date of that order. Challenging the order made in R.C.No.394 of 2002, the petitioners and respondents 5 and 6 filed R.A.No.252 of 2007 on the file of Chief Judge, City Small Causes Court, and by Judgment dated 24.08.2009, the appeal was allowed. Challenging the orders passed in R.A.No.252 of 2007, the respondents 1 to 4 filed Civil Revision Petition No.5025 of 2009 on 26.10.2009. The said CRP came up for admission before this Court on 30.10.2009. On that day, notices were issued to the respondents therein and the respondents 1 to 4 herein, who are the petitioners in the said CRP, were permitted to take out notices on the respondents and the said CRP was ordered to be listed on 22.01.2010. From 22.01.2010, it was ordered to be posted on 27.01.2010. However, the case was listed on 18.06.2010. The learned counsel for the petitioners contended that the respondents 1 to 4 filed a memo stating that the respondents 1 to 4 have sent a registered post communication on 04.11.2009 for all the petitioners at their family residential address and that the 3^rd petitioner received the registered letter and his postal acknowledgement is filed. The registered letters sent to the petitioner Nos.1, 3 and 4 and respondent Nos.5 and 6 have been returned. Notices were served on 3^rd respondent in CRP No.5025 of 2009/2^nd petitioner herein, i.e. D.V.Krishna Murthy, and notices

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on other respondents were returned as unclaimed. Admittedly, the address of all the respondents in the said CRP is shown as residents of premises No.2-2-1164/25/2, Tilak Nagar, Nallakunta, Hyderabad. In this application also, the address of the petitioners and respondents 5 and 6 is shown as the same. It appears that respondent No.5 is said to be residing in USA. Notices were sent to that address also, and notices to respondent No.6 were also sent to her address at New Delhi. It is further stated that the respondents 1 to 4 have also filed another memo stating that they received a reply from the Chief Post Master, GPO Hyderabad, stating that the registered letter was delivered on 13.11.2009 to respondent No.6 i.e. Smt. K. Swarnalatha at her address at New Delhi.

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On 25.06.2010, this Court, having regard to the fact that the notices sent to respondent No.3 in CRP No.5025 of 2009 i.e. D.V. Krishnamurthy, has been served on 08.12.2009, and that the addresses of the other respondents in the said CRP, i.e. the petitioners and respondents 5 and 6 herein being one and the same, and that the postal covers have been returned as unclaimed, passed orders holding that the notices sent to other respondents are deemed to be served, and accordingly, posted the CRP ‘for orders’ on 05.07.2010. Arguments were heard on 05.07.2010 and judgment was pronounced on 21.07.2010. However, the petitioners herein have been granted three months time to vacate.

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Now, in the present application dated 31.08.2010, the petitioners main case is that they came to know about passing of orders in Revision only on 28.08.2010 when they received a notice from the counsel for the respondents intimating them the result of

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the Revision. It is also their case that there is a delay of 10 days in filing the petition to set aside ex parte order. Therefore, this CRP MP No.5811 of 2010 is filed to condone the delay of 10 days.

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The specific case of the petitioners is that notices in the Civil Revision Petition No.5025 of 2009 were served on the petitioners and that the 2^nd petitioner along with other petitioners and the respondents 5 and 6 engaged Sri Praveen Vyapari, Advocate, and their vakalat was filed through him. Their specific case is that their counsel’s clerk apparently failed to file vakalat and that the 2^nd petitioner and his counsel were misled to believe that the vakalat was filed and registered. It is also their case that the said clerk, since more than ten months, stopped attending the office of his counsel, and they were under the impression that vakalat was filed and when the Cause List was being checked online, the name of their counsel displaying posting of various cases did not disclose the posting of the revision petition and that the petitioners and their counsel could not come to know about the posting of the revision on 21.07.2010 for final hearing before this Court, and that the matter was decided ex parte. It is also their case that the point that the Rent Controller, by fixing rent at Rs.4050/- per month, lost his jurisdiction to try the eviction petition, was not taken into consideration. It is also their case that they came to know about the orders in the said revision petition only after they received a registered letter from the respondents 1 to 4 intimating about allowing of the revision petition. Their further case is that when their counsel verified the status of the case online, it was shocking to find that the vakalat was either not filed or was not entered. It is also their case that, in any case, the order passed by this Court was an ex parte order and that there

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was no opportunity for them to canvass their stand across the bar on the very crucial point of law, which apparently would have tilted the balance in their favour. In view of the circumstances, it is their case that, for no fault of theirs or their counsel, except inadvertence, the lawful right of hearing before this Court is lost, seriously affecting their valuable right; and therefore, the ex parte order may be set aside. It is their further case that the delay, being inadvertent, may be condoned and an opportunity be given to them to argue the main revision i.e. CRP No.5025 of 2009.

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The 2^nd respondent filed counter on behalf of other contesting respondents, contending, inter alia, that it is a clear case of carelessness, negligence and inaction on the part of the petitioners. It is submitted that respondents 5 & 6 have not filed any application but conveniently they are shown as respondents and since the order passed by this Court in the said revision petition is common to the petitioners as well as respondents 5 & 6, and since it is binding on all the parties, the same cannot be set aside against some of the petitioners or respondents. It is his submission that notice was served on D.V.Krishna Murthy, the 2^nd petitioner (the 3^rd respondent in the revision) alone, and insofar as the notices sent to the other petitioners and respondents 5 & 6 are concerned, the registered covers were returned unclaimed. It is further averred that the petitioners have not stated as to when they engaged their counsel and when vakalat was filed. It is denied that their counsel’s clerk failed to file vakalat and the 2^nd petitioner viz.,

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D.V. Krishna Murthy and his counsel were misled about filing vakalat and registration thereof. It is further stated that the clerk’s name is not given and it is also not made clear whether the said

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clerk is a registered clerk or not. It is also averred that all the clerks appointed by the advocates for looking after their work in the High Court are required to be registered as per the High Court Rules. It is also denied that the said clerk stopped attending the office of their counsel, for more than ten months. It is further averred that nothing prevented the petitioners or their counsel or other advocates attached to their office to verify with the computer installation and information center and find out whether vakalat was filed and whether an entry has been made or not. It is further submitted that, in the online Cause List, the case status could be found out and when the cause list was being checked online for the name of advocate, nothing prevented the petitioners for checking the case status of the said revision petition, which is also available online. The specific case of the 2^nd respondent is that all the allegations are clearly an afterthought and there are no bona fides on the part of the petitioners. It is further submitted that after taking necessary steps and verifying the record and the returned covers sent to the petitioners and respondents 5 and 6, this Court proceeded to hear the matter on 05.07.2010 and ultimately allowed the CRP on 21.07.2010.

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It is further submitted that the petitioners are well aware of the proceedings and also about the orders passed by this Court and that the respondents 1 to 4 herein have sent notices to all the respondents in the CRP and even the said notices were returned by the postal authorities as unclaimed by petitioner Nos.1, 3 and 4 herein and respondents 5 and 6 herein. It is further stated that it is not a case of inadvertence, but a clear case of negligence, carelessness and inaction and the present applications are presented out of mala fide intention to drag on the proceedings. It is also averred that the calculation of delay of ten days is also not

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correct since they were served with the notices, delay has to be calculated from the date of service of notice. It is the further case of the respondents 1 to 4 that they filed O.S.No.509 of 2009 on the file of the I Senior Civil Judge, City Civil Court, Hyderabad, for recovery of Rs.1,51,075/- against the petitioners herein and that in the said case, the petitioners filed a written statement on 20.04.2010 admitting the factum of filing of revision by the respondents 1 to 4 herein, and therefore, the petitioners have knowledge about filing of the revision and pendency thereof at least since 20.04.2010.

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The only point that arises for consideration is whether the petitioners have shown the sufficient cause for the delay.

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The learned counsel for the petitioners submitted that the petitioners have stated all the facts in the affidavit filed in support of the petition and explained the reasons as to how the delay occurred. It is his main submission that his clerk failed to file vakalat and, since about more than ten months prior to the date of filing of this petition, the said clerk stopped attending their office, and the petitioners and their counsel were under the impression that the matter is not listed and that when the Cause List was being checked online, the name of their counsel, displaying the posting of various cases, did not disclose the posting the revision petition. His further submission is that since the delay is only ten days, and the petitioners have explained sufficient cause for the delay, the ex parte order passed in CRP No.5025 of 2009 may be set aside. It is also their submission that they have a strong case as well as an important legal aspect which is required to be considered in the revision has not been considered, and if an opportunity to represent their case is not given, they would be put

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to irreparable loss.

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Sri Balchand, learned counsel for the respondents 1 to 4 submitted that the conduct of the parties is also relevant and it has to be seen as to how the petitioners and respondents 5 and 6 tried to evade notices though all of them have been residing in the same house; and how they tried to protract the litigation. His main submission is that, when the revision came up for admission on 30.10.2009, the same was ordered to be posted on 22.01.2010 and a specific date was fixed and notices were sent and, admittedly, the acknowledgement of only the 2^nd petitioner i.e. D.V.Krishnamurthy received, and the notices served on other petitioners returned, and since all the petitioners have been shown to be residing at the same address, the petitioners knew very well that the revision is posted for hearing on 22.01.2010. It is also his submission that he filed the postal acknowledgements and also the returned covers showing how some of the petitioners and respondents 5 and 6 managed to return the covers.

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The counsel further submits that there should be no negligence or inaction on the part of the applicants to whom want of bona fides is imputable. His main submission is that sufficient cause implies presence of legal and adequate reasons. It is also his submission that required particulars such as, name of the advocate clerk, the date on which the vakalat was signed and when it was filed in the Court etc., are lacking. It is also submitted that the petitioners have also not clarified whether the clerk is a registered clerk or not, and no affidavit of the said clerk is filed. It is also his contention that D.V. Krishnamurthy in his affidavit stated that since about ten months the said clerk stopped attending the office of their counsel, and if the said version is true,

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it goes to show that the petitioners entrusted their vakalat in October 2009, whereas, the record shows that the notices on D.V. Krishnamurthy were served only in December, 2009 and thus, it is clear that the case of the petitioners is improbable. It is also his submission that whenever a vakalat or any paper is filed, the normal course is to obtain USR Number and then verify whether the name of the counsel has been entered or not. Admittedly, no USR number is furnished. Thus, it is clear that no vakalat is filed. It is also his submission that when the CRP was admitted on 30.10.2009 and when it was specifically ordered to be posted on 22.01.2010, in all probability, the petitioners and their counsel should have verified the same with reference to the case number on the High Court website. It is also his submission that, though for condonation of delay, only four petitioners have joined, but as far as the other applications in C.R.P.M.P. Nos.6270 and 6271 of 2010, i.e. for stay and for extension of time are concerned, in those applications, all the petitioners and respondents 5 and 6 have joined together and filed these applications. He has also relied on the following judgments of the Apex Court.

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His main submission is that it is for the petitioners to show that there was sufficient cause, that they were diligent, that there was no negligence on their part and, that they are not responsible for the delay and where, incase, it appears that the delay is directly as a result of negligence, such delay cannot be condoned and it should not result in doing injustice to the other party.

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Normally, the Courts liberally condone the delay where sufficient reason has been shown.

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Learned counsel for the petitioners placed reliance in

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IMPROVEMENT TRUST, LUDHIANA v. UJAGAR SINGH AND OTHER S^[1] , wherein the Apex Court, observing the facts and circumstances of the case and taking into consideration the fact that the appellant therein had taken all possible steps to prosecute the matter within the time, condoned the delay, subject to payment of costs of Rs.5,000/- to the respondent as a condition precedent for condonation of delay. It was also taken into consideration that the delay was not that huge. It was also observed that, from the conduct, behaviour and attitude of the appellant, it cannot be said that it had been absolutely callous and negligent in prosecuting the matter.

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The petitioners counsel also relied in KEDAR NATH

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AGRAWAL (DEAD) AND ANOTHER v. DHANRAJI DEVI (DEAD)

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BY LRS. AND ANOTHE R^[2] . In that case, the appellant was a tenant and the landlord filed an application for eviction of the tenant on the ground of bona fide requirement. The eviction order was passed against the appellant. He preferred an appeal. However, the said appeal was also dismissed. Against the orders of the appellate authority, a Writ Petition was filed and the writ petition was also dismissed. During the pendency of the said writ petition, original appellants died. The question that came up for consideration was whether subsequent event could be taken into consideration and basing on the same whether the present eviction order could be set aside. By considering the subsequent events, the matter was remitted to the High Court for fresh consideration. The Apex Court observed as follows:

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“The basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of a

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suit/proceeding, cannot be considered at all. It is the power and duty of the court to consider changed circumstances. A court of law may take into account subsequent events inter alia in the following circumstances:

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(i) the relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or

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(i) it is necessary to take notice of subsequent events in order to shorten litigation; or

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(iii) is necessary to do so in order to do complete justice between the parties.”

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The petitioners counsel also placed reliance in VEDABAI ALIAS VAIJAYANATABAI BABURAO PATIL v. SHANTARAM BABURAO PATIL AND OTHER S^[3] . In that case, the application for condonation of delay of 7 days under Section 5 of the Limitation Act, was dismissed; and when it came up for consideration, the Apex Court observed as follows:

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“In exercising discretion under Section 5 of the Limitation Act, the courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case falls for a more cautious approach but in the latter case, no such consideration may arise and such a case deserves liberal approach. No hard-and-fast rule can be laid down in this regard. The court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression “sufficient cause”, the principle of advancing substantial justice is of prime importance.”

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The petitioners counsel placed reliance in

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N. BALAKRISHNAN v. M. KRISHNAMURTH Y^[4] , wherein it was

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observed that in absence of anything showing mala fide or deliberate delay as a result of dilatory tactic, the Court should normally condone the delay. In that case, a suit for declaration of title and ancillary reliefs filed by the respondent was decreed ex parte on 28.10.1991. The appellant, who was defendant in the suit,

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filed an application to set aside the order, and the application was dismissed for default on 17.02.1993. The appellant moved an application for having that order set aside, only on 19.08.1995 for which a delay of 883 days was noted. In that case, the advocate engaged by the appellant did not file vakalat. However, the main distinction is that the appellant also moved the District Consumer Disputes Redressal Forum against the said advocate in that case. The Court, considering that there was reasonable explanation for the delay, condoned the same.

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Reliance is also placed by the petitioners counsel in STATE OF BIHAR AND OTHERS v. KAMESHWAR PRASAD SINGH AND ANOTHER; STATE OF BIHAR AND OTHERS v. BRIJ BIHARI PRASAD SINGH; INDRA NAND MISHRA AND OTHERS v. STATE OF BIHAR AND OTHER S^[5] (5-supra) wherein there was a delay of 679 days in filing the SLP in a case relating to promotions of police officers. The main ground on which the condonation of delay was sought was that they were not aware of the judgment passed by the High Court. The Apex Court in paragraph 6 of the judgment observed that:

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“They have also sought the condonation of delay mainly on the ground of not being aware of the judgment passed by the High Court which ultimately and eventually adversely affected their interests.”

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I n ORIENTAL AROMA CHEMICAL INDUSTRIES LTD v. GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION AND

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ANOTHE R^[6] , the Apex Court was dealing with a suit filed for recovery of water charges from the appellant, wherein, even after due service of notices on the respondents, they did not appear before the Court and they were set ex parte and decree was passed against them. Then the respondents filed an appeal and also an application under Section 5 of the Limitation Act, 1963 for

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condonation of delay. It appears that the respondents case was that because of numerous transfers of the officers, the delay occurred. The Apex Court, explaining sufficient cause, observed that “sufficient cause” employed in Section 5 of the Limitation Act and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which subserves the ends of justice. It is further observed that although no hard-and-fast rule can be laid down in dealing with applications for condonation of delay, this court has justifiably advocated adoption of a liberal approach in condonation of delay of short duration and a stricter approach where the delay is inordinate. Ultimately, the application for condonation of delay filed by the respondents was dismissed.

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In SHANGARAM NARASIMLU AND OTHERS v. JANGAM

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ISTALIAH AND ANOTHE R^[7] , relied by the respondents counsel, this Court was dealing with a case wherein the negligence of an agent came up for consideration. The case of the appellant therein was that he had engaged an advocate practicing at Karimnagar to file the appeal on 30.12.1950 and paid the required Court fees, and that the said advocate had not filed the case. This Court, having regard to the facts and circumstances of the case, categorically held that negligence of an agent in filing of an appeal is no ground for condonation of delay under Section 5 of the Limitation Act.

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I n POTTA SITHARAMIAH v. VIRRAJ U^[8] , relied by the

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respondents counsel, this Court considering similar facts expressed the view that the negligence of an agent in filing an appeal is not a ground for condonation of delay under Section 5 of the Indian Limitation Act.

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In BANKE BIHARI LAL v. MAHADEO PRASA D^[9] , relied

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by the respondents counsel, condonation of delay was sought on the ground that the appellants came to know about the death of a party after the date of the judgment. It was found that the counsel appearing for the appellant himself, in some other proceedings, informed the Court about the death of the same party before the date of the judgment. However, the party seeking condonation of delay pleaded that he came to know about the death of the said party only after the date of judgment. Taking into consideration the fact that, advocate for the appellant himself, in some other proceedings, intimated the Court about the death of the same party, the contention of the appellant was rejected.

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Learned counsel for the respondents placed reliance in JAGDISH v. HARSARU P^[10] . In that case, judgment was pronounced on 05.03.1977. The appeal was filed on 23.04.1977 without enclosing certified copies of impugned judgments. The Court, while admitting the appeal, permitted the appellants to file the certified copies within limitation period. However, there was delay in filing certified copies and when they sought to file them with an application for condonation of delay, an objection was raised that the appeal was barred by Limitation. The appellants sought to explain the delay that the clerk of the lawyer conducting the case in the lower Court had applied for certified copies but had misplaced the slips issued by the Copying Agency and those could only be traced on 07.09.1977, and therefore, the delay occurred. Taking into consideration the fact that the affidavit of the said clerk did not disclose any facts and circumstances under which the slips issued by the Copying Agency were misplaced and were later on found, it was held that not only the said clerk, but the appellant himself was negligent in not filing the certified copies.

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Therefore, the delay was not condoned.

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In MAUNG PO CHEIN v. PO THA AND OTHER S^[11] , relied

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upon by the respondents counsel, it was held that gross negligence of pleader cannot be condoned.

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The judgment in BALWANT SINGH (DEAD) v. JAGDISH SINGH AND OTHER S^[12] , relied upon by the respondents counsel, appears to be the latest one wherein the Apex Court has elaborately dealt with the issue that though there should be liberal construction of the expression “sufficient cause”, but the same pre-supposes no negligence or inaction on the part of the applicant. It is not the length of the delay, but sufficiency of a satisfactory explanation that is required. The Apex Court observed as follows:

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“Liberal construction of the expression ‘sufficient cause’ is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. The expression ‘sufficient cause’ implies the presence of legal and adequate reasons. The word ‘sufficient’ means adequate enough, as much as may be necessary to answer the purpose intended.”

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“….. But what we are impressing upon is that delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications.”

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“… It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning the delay has to be dismissed on that ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bonafides may fall for consideration;”

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“The expression “sufficient cause” implies the presence of legal and adequate reasons. The word “sufficient” means adequate enough, as

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much as may be necessary to answer the purpose intended.”

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“…The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention.”

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“… The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution.”

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“… Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the court would be inclined to condone the delay in the filing of such applications.”

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It has to be seen whether a party has approached the court with clean hands, whether there are laches on the part of said party, whether he is negligent, whether the explanation is convincing and, whether sufficient reasons for the delay have been shown. When a party is diligent, the Court may condone the delay, but where in a case it appears that the party is guilty of protracting the litigation on one ground or the other or playing hideand-seek game and is negligent or careless in prosecuting the matter, the court, however the period of delay it may, whether it is huge or short, need not condone the delay. What is to be seen is whether the explanation is reasonable or not; Whether there is any grain of truth in it or not; Whether it inspires the confidence of the court or not; and whether necessary particulars explaining the delay have been given or not. All the facts and circumstances have to be carefully considered. Where it appears that the party is grossly negligent and where there is inaction on the part of the said party and where there are no bona fides, the delay cannot be condoned, however short it may be. So in the light of the above

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principles laid down by the Apex Court and various other courts, considering the facts of the present case, it is clear that the petitioners are negligent and there is inaction on their part and moreover, they have adopted dilatory tactics. It is clear from the record that D.V. Krishnamurthy received notice in December, 2009. Admittedly, all the petitioners and respondents 5 and 6 have been residing at the same address. Now they claim that all of them have received the notices. But it is clear from the record and from the returned covers that except D.V. Krishnamurthy, other petitioners and respondents 5 and 6 have not received the notices, rather notices have been returned as unclaimed. This shows the attitude of the petitioners and respondents 5 and 6. Though they have returned the notices and, now they claim that they have received the notices. This itself shows that there are no bona fides on their part. In the affidavit filed by D.V. Krishnamurthy, he has not clarified as to on what date the petitioners received the notices, when they approached their advocate and on what date the alleged vakalat was executed in favour of their advocate and when the said vakalat was entrusted to the advocate clerk. He has also not mentioned the name of the said advocate clerk and whether the said advocate clerk is a registered clerk or not. Further, he has mentioned that the said advocate clerk had not been attending the office of the advocate for about more than ten months. The affidavit is signed by D.V. Krishnamurthy on 30.08.2010 and if the ten months period is calculated, it reads back to 31.10.2009. But surprisingly, D.V. Krishnamurthy received the notices only on 13.11.2009. So he or the other petitioners could not have filed vakalat in October 2010. Moreover, it is not in dispute that the petitioners themselves claim that they received the notices from the respondents on 28.08.2010 and after receiving the notices, they got verified the status of the case online. Verification of the case status could have been done

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by them within a reasonable period from the date of receipt of notice by D.V. Krishnamurthy. When they signed the vakalat and when they were under the impression that the said vakalat was filed before this Court, and when the date of posting the revision has been specifically shown as 22.01.2010 in the notice received by D.V Krishnamurthy, the petitioners ought to have verified as to what happened to their case on 22.01.2010 or within a reasonable period thereafter. Nothing prevented them from verifying the same or verifying the status of the case online in the High Court website which they claim to have done after receiving the notices from the counsel for the respondents after disposal of CRP. When they knew that a revision has been filed on 26.10.2009, their action in not verifying as to what happened to that revision, clearly shows that the petitioners are grossly negligent.

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Each case has to be decided on its own facts and circumstances and, the conduct of the parties has also to be examined. Though it is not necessary to refer the contentions of the petitioners, their main claim appears to be that since the rent has been enhanced from 04.10.2000 by fixing fair rent at Rs.4050/per month, it takes away the jurisdiction of the Rent Controller, and the Rent Controller ought not to have passed the eviction order. However, as admitted by both the counsel, the eviction petition was filed on 03.10.2002 whereas the application for fixing of fair rent was filed on 04.10.2002 and, therefore, on that date of filing of eviction petition, the Rent Controller had jurisdiction. Therefore, it appears that even on merits also, the petitioners have no case.

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In view of the above discussion, I hold that no sufficient cause is shown to condone delay of ten (10) days in filing the application seeking to set aside the order dated 21.07.2010 made

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in CRP No.5025 of 2009. Accordingly, CRP MP No.5811 of 2010 stands dismissed. Consequently, CRP MP No.1207 of 2011, which is filed for restitution of possession in favour of the petitioners, also stands dismissed. No costs.

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JUSTICE B. CHANDRA KUMAR

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09^th September, 2011 KSM

¶77

[1] (2010) 6 Supreme Court Cases 786 [2] (2004) 8 Supreme Court Cases 76 [3] (2001) 9 Supreme Court Cases 106 [4] (1998) 7 Supreme Court Cases 123 [5] (2000) 9 Supreme Court Cases 94 [6] (2010) 5 Supreme Court Cases 459 [7] 1957 (II) AWR 557 [8] 1959 AIR (AP) 0-507 [9] 1953 ALL 97 [10] AIR 1978 Delhi 233 [11] AIR 1931 Rangoon 80 [12] (2010) 8 Supreme Court Cases 685

Anil Kumar R.Kamdar v. Dasari Vaikuntham (died per L.Rs.)

Case brief

What is this about?

What did the court decide?

Anil Kumar R.Kamdar v. Dasari Vaikuntham (died per L.Rs.)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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Coram

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