THE HON'BLE SMT JUSTICE M.G.PRIYADARSINI
CIVIL REVISION PETITION No. 1815 OF 2019
O R D E R:
This Civil Revision Petition is filed by respondent No. 4 aggrieved by the order dated 27.06.2019 made in I.A.No. 670 of 2018 in R.A(SR)No. 2380 of 2018 on the file of the Chief Judge, City Small Causes Court, Hyderabad. By the impugned order, the petition filed by the revision petitioner under Section 5 of the Limitation Act was dismissed rejecting the request for condoning the delay of 528 days in filing the appeal under Section 4(1) of Telangana Building (Lease, Rent & Eviction) Control Act, 1960, to set aside the ex parte decree dated 14.02.2017.
2. The facts of the case are that the revision petitioner herein is the tenant and the respondent No. 1 herein is the landlord. The other respondents are also tenants. The landlord filed R.C.No. 174 of 2014 against the tenants, respondent Nos. 2 to 4 herein, seeking fixation of fair rent in respect of the schedule mulgi i.e., mulgi bearing No. 15-9-251 consisting of a shop, a tin-shed with an open space at the ground floor along with first floor. According to the landlord, the tenant, revision petitioner has been depositing monthly rents at Rs.100/- to the credit of RC No. 139 of 2011 which has been instituted at his 2 MGP,J CRP No. 1815 of 2019 instance. According to him, the rent is a very meager one as the schedule mulgi is located in a busy commercial area and therefore, sought for fixation of fair rent at Rs.45,000/- per month. On contest by the tenants, the rent controller partly allowed the RC duly fixing the monthly rent of mulgi at Rs.36,160/- per month i.e., at the rate of Rs.40/- per square feet payable from July, 2014 onwards with a further direction to enhance the said rent @ Rs.10/- for every three years compounding from July 2014. The arrears of rent from July 2014 till January 2014 was directed to be deposited within six months from the date of the order. Aggrieved thereby, the tenant, respondent No. 4 in the R.C., has preferred an appeal before the Chief Judge, City Small Causes Court, Hyderabad. As there was delay in preferring the appeal, he has filed the impugned I.A. under Section 5 of Limitation Act seeking to condone delay of 528 days in preferring the appeal. It was the case of the tenant that he could not appear before the Rent Controller on 14.02.2017 as the notice was sent to incorrect address. He had not received the summons as he is not the resident of Saroornagar C/o.H.No. 13-2-969, Puranapool, Hyderabad. In fact, he is residing at H.No.20-73, SKR Nagar, Saroornagar, RR District-60. As the notices were sent to incorrect address, he could not receive the notices in the RC 3 MGP,J CRP No. 1815 of 2019 and could not represent the matter, resulting into the passing of ex parte orders on 14.02.2017. It is only when he saw the paper publication in Surya Daily that was taken out by the landlord in O.S. No. 182 of 2018 on the file of X Additional Chief Judge, City Civil Court, Hyderabad filed for eviction and recovery of amounts fixed in the R.C., he got the knowledge of passing of the ex parte decree in the R.C. Thus, there is a delay of 528 days in filing the appeal to set aside the order and decree dated 14.02.2017 which is neither wanton nor willful but for the reasons stated above.
3. Before the lower Appellate Court, the landlord filed his counter contending that the tenant is well aware of the RC proceedings. It is also contended that the notices were served and the same were endorsed by his mother-in-law. It is further contended that the revision petitioner is negligent in prosecuting his case all along even though he is having knowledge of the proceedings. It is lastly contended that the reasons assigned by the tenant for condoning the delay of 528 days are not convincing and he miserably failed to explain the day-to-day delay. Hence, prayed to dismiss the petition. 4
MGP,J CRP No. 1815 of 2019
4. Considering the respective pleadings, the lower appellate Court dismissed the application by the impugned orders. Aggrieved by the same, the tenant filed the present revision.
5. Heard both sides and perused the material available on record.
6. The learned counsel for the tenant has firstly contended that the lower appellate Court ought to have considered that the tenant came to know about proceedings only after he came across the publication of notice in Surya daily newspaper on 05.04.2018 taken out by the landlord in respect of eviction proceedings in O.S. No. 182 of 2018. Secondly, he contended that the landlord has intentionally furnished the wrong address and got an endorsement to the effect that the notice in the said RC was served on the mother-in-law of the tenant. In fact, he has no such mother-in-law residing in the said address. Lastly, the learned counsel contended that the justice should not be defeated for technicalities and therefore, prayed to allow the revision.
7. On the other hand, the learned Counsel appearing on behalf of the landlord sought to sustain the impugned order of the lower appellate Court contending that evidence available on 5 MGP,J CRP No. 1815 of 2019 record, the lower appellate Court has rightly dismissed the petition and the same needs no interference by this Court.
8. The Section 5 of Limitation Act, 1863 reads as under:
"5 Extension of prescribed period in certain cases.
--Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation.-- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section"
9. A plain reading of the above makes it abundantly clear that if the revision petitioner satisfies the Court with sufficient cause for not filing the appeal within the stipulated period, then the said petition can be allowed.
10. It is pertinent to note that the Rent Controller passed ex parte decree on 14.02.2017 against the tenant and that according to the tenant, he came to know about the passing of the ex parte orders in the RC when he came across the publication in Surya Daily newspaper on 05.04.2018 that was taken out in respect of the proceedings in O.S. No. 182 of 2018. Immediately, he contacted his counsel and after obtaining the relevant papers of the RC proceedings, he filed the appeal with 6 MGP,J CRP No. 1815 of 2019 the impugned application to condone the delay of 528 days in filing the appeal under Section 4(1) of Telangana Building (Lease, Rent & Eviction) Control Act, 1960 to set aside the ex parte orders passed in the R.C. In order to substantiate the cause for the delay period, he has not filed any documentary evidence in respect of his residential address i.e., H.No.20-73, SKR Nagar, Saroornagar, R.R.District. Moreover, the record discloses that the tenant filed claim petition in E.A.No. 325 of 2013 in E.P.No. 71 of 2007 in O.S.No. 682 of 1992 on the file of V Senior Civil Judge, City Civil Court, Hyderabad, along with the other tenants claiming the tenancy after the death of original tenant-J. Narayana and the said applications were dismissed on contest. That apart, the other tenants are natural brothers and sons of the original tenant-late J. Narayana and that one of the tenants i.e., respondent No. 1 is none other than the uncle of the present tenant. Even the R.C. was contested not in individual capacity but as common and joint tenants. In these circumstances and as all the tenants have jointly contested the proceedings, the present tenant cannot plead ignorance of passing of the ex parte decree in the R.C. Furthermore, when one of the tenants i.e., respondent No. 2 herein, has challenged the very same orders made in R.C. No. 174 of 2014, by showing the other tenants, including the 7 MGP,J CRP No. 1815 of 2019 present tenant, as proforma parties, the tenant herein has not taken any steps to transpose him as an appellant to contest the proceedings in the R.C.A. along with the appellant therein, and it is only when the proceedings therein are coming to an end, the present appeal is sought to be filed with the condone delay application, which itself speaks volumes about the attitude and conduct of the tenant herein in protracting the proceedings. Hence, the lower appellate Court has rightly dismissed the application holding that there are no merits to condone the delay and the application is nothing but to protract the proceedings. The Civil Revision Petition lacks merits and the same is liable to be dismissed.
11. In the result, the Civil Revision Petition is dismissed. The petitioner/tenant is directed to pay the arrears of rent, as fixed by the Rent Controller, accrued from July, 2014, within a period of three (03) months from the date of receipt of a copy of this order, failing which, the landlord is entitled to initiate execution proceedings in terms of the Act. No costs.
Pending miscellaneous petitions, if any, shall stand closed.
____________________________________ JUSTICE SMT.M.G.PRIYADARSINI Date: 31.10.2023 gms 8 MGP,J CRP No. 1815 of 2019 50 THE HON'BLE SMT JUSTICE M.G.PRIYADARSINI CIVIL REVISION PETITION No. 1815 OF 2019 31.10.2023 gms