Allahabad High Court
In The Matter Of: Sh. Arnold Harvey vs Smt. Krishna Kumari on 17 November, 2017
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 30
Case :- S.C.C. REVISION DEFECTIVE No. - 102 of 2017
Revisionist :- In The Matter Of: Sh. Arnold Harvey
Opposite Party :- Smt. Krishna Kumari
Counsel for Revisionist :- Arvind Kumar
Hon'ble Vivek Kumar Birla,J.
Re: Civil Misc. Delay Condonation Application No. 311939 of 2017
The Stamp Reporter has reported delay of 1 year and 190 days.
Heard Sri Arnold Harvey (who himself is practicing lawyer), the revisionist in person at length, who has filed this revision through Sri Arvind Kumar, Advocate.
Perused the office report 26.10.2017, which indicates that the notices issued to the opposite party have not been returned back after service.
In such view of the matter, service is deemed to be sufficient on the opposite party.
Pursuant to the order of this Court dated 1.9.2017, although very detailed affidavit in support of the delay condonation application has been filed citing various case laws in support of argument that in the present case delay is liable to be condoned, however, whether in the facts and circumstances of the case the delay has been properly explained or not, has to be considered.
The arguments for condoning the delay were heard at length.
The crux of the argument is that the revisionist was pursuing his remedy before the court below by way of filing application under Order 9 Rule 13 CPC, which was rejected with liberty to file fresh application and thereafter by filing review application under Order 47 Rule 1 CPC, which too was rejected and thereafter by filing fresh application under Section 151 CPC read with Order 9 Rule 13 CPC and the last application is still pending, but in the meantime the execution application was filed by the landlady, wherein also the revisionist has filed his objection under Section 47 CPC, which is still pending.
Relevant facts of the case in brief are that the revisionist is a tenant in the house A-53, Swarn Nagar, Greater NOIDA, Gautam Budh Nagar @ Rs. 6,000/- per month and a registered rent deed dated 4.0.2013 was executed for a period of 11 months. When he failed to vacate the house and failed to pay the rent w.e.f. 1.8.2014 a notice for termination of tenancy dated 27.10.2014 was given. Thereafter, the present SCC suit was filed with the assertion that since the rate of rent is above Rs. 2,000/- per month, therefore, the provisions of the Act 13 of 1972 are not applicable. The landlady filed copies of notice, registry receipt, which was returned with the endorsement of refusal. The suit being SCC Suit No. 01 of 2015 was decided ex-parte on 22.1.2016 and the tenant was directed to vacate the house within a period of three months and also pay the arrears of rent for the period 14.8.2014 to 30.11.2014 and damages @ Rs. 15,000/- per month.
From record it transpires that application under Order 9 Rule 13 CPC was filed by the tenant-revisionist on 8.2.2016, which was replied by the landlady and the application was rejected vide order dated 18.4.2016 clearly noticing therein that the petitioner has not complied with the provisions of Section 17 of Provincial Small Causes Court Act, 1887 (hereinafter referred to as the Act) and in view of the various judgment including judgment of Hon'ble Apex Court in the case of Kedar Nath vs. Mohanlal Kesarwani AIR 2002 (SC) 582 wherein it has been held that time cannot be extended and no relief can be granted if the provisions of Section 17 of the Act have not been complied with as the same are mandatory in nature. However, taking a lenient view of the matter the applicant was allowed to move fresh application for this purpose. The tenant-revisionist instead of complying with the provisions of Section 17 of the Act moved a review application under Order 47 Rule 1 CPC dated 23.4.2016, which was contested by the landlady and ultimately the aforesaid review application was also dismissed vide order dated 28.4.2017. From perusal of the said order it is clear that the provisions of Section 17 of the Act have not been complied with and it was being prayed that the applicant (tenant/defendant) be exempted from furnishing even security by submitting that ex-parte judgment can be reviewed under Order 47 Rule 1 CPC and Section 17 (1) of the Act is no bar. It was also found that in the light of this review application the applicant is seeking review on merits of the case. It may be noticed that the provisions of Section 17 of the Act were not complied with and even no representation was filed, therefore, it was very much clear that it was simply an attempt on the part of the revisionist to avoid the compliance of Section 17 of the Act. Subsequently, the petitioner again moved an application under Section 151 read with Order 9 Rule 13 CPC on 19.5.2017 and the prayer clause of the aforesaid application at page 262 of the paperbook indicates that this application was made under Section 151 CPC and prayer for setting aside the ex-parte decree dated 22.1.2016 and to recall earlier orders were also made. This application is pending.
In the meantime, the execution application filed by the plaintiff is pending consideration, wherein the tenant has filed objection under Order 47 CPC dated 18.7.2017 and according to the tenant the same is still pending consideration.
It is very much clear that the tenant is contesting the case by filing the application under Order 9 Rule 13 CPC without complying with the provisions of Section 17 of the Act, and even after dismissal of the aforesaid application with liberty to the tenant to file fresh application vide order dated 18.4.2016, in place of filing application/representation under Section 17 of the Act he filed review application dated 23.4.2016, which came to be decided after one year on 28.4.2017 and thereafter again a fresh application under Section 151 read with Order 9 Rule 13 CPC was filed. It is not in dispute that nothing has been deposited or offered by the tenant during this period after passing of the ex-parte decree. The execution proceedings are pending. The objection of the petitioner is pending before the execution court.
Learned counsel for the revisionist has drawn attention to various judgment of Hon'ble Apex Court, which have been quoted in the delay condonation application.
There is no quarrel with the law on the issue but the facts of the each case is to be tested on its own merits. In the present case the revisionist is a practicing lawyer.
In view of the judgment of Hon'ble Apex Court in Kedar Nath (supra) without complying with the provisions of Section 17 of the Act the application under Order 9 Rule 13 CPC could not have been allowed by the court below and even time cannot be extended under Section 17 of the Act and thus, the same was rejected. These orders are not under challenge and the revision is only against the ex-parte judgment dated 22.1.2016.
The delay is being explained on the ground that the revisionist was pursuing his case before the court below.
Althogh the delay has been caused due to reason that various applications filed by the revisionist were pending for disposal, but still, the circumstances of the case clearly indicates that the revisionist was somehow lingering on the matter by filing one application after another without complying with the provisions of Section 17 of the Act.
I do not find that the delay has been genuinely caused in the present case. Merely because the revisionist was pursuing his case before the court below by filing application under Order 9 Rule 13 CPC, thereafter review application under Order 47 Rule 1 CPC and thereafter fresh application under Section 151 read with Order 9 Rule 13 CPC was filed but the provisions of Section 17 of the Act were not availed of and it cannot be said that inspite of the orders of the trial court rejecting the application vide order dated 8.2.2016 by providing that the revisionist may comply with the provisions of Section 17 of the Act but the fact remains that uptil now the same has not been complied with and prima facie, now in view of Kedar Nath (supra) it is too late to save him from ex-parte judgment.
Filing and/or pendency of the various applications and disposal of the same may explain the time period or passage of time, however it does not indicate the bonafide on the part of the revisionist, who is pursuing the case by filing one application after another application, therefore, I am not inclined to condone the delay.
Accordingly, the application stands rejected and consequently, the revision also stands dismissed.
Re: Revision
Present revision is dismissed.
Order Date :- 17.11.2017
Lalit Shukla
