Vinayak Nilkhant Nikhar ... vs Waman Narayan Potey (Dead) ...
2002 Latest Caselaw 427 Bom

JUDGMENT

R.S. Mohite, J.

1. Rule. By consent rule is made returnable forthwith.

2. This is a writ petition challenging an order dated 23-1-2001 passed by the Additional Collector, Nagpur rejecting an appeal filed by the petitioner on the ground of limitation. The order passed by the Rent Controller which is under appeal is dated 30-12-1996. It is not seriously disputed that just before passing of this order on 23-12-1996 the father of petitioner Nos. 2 to 7 and husband of petitioner No. 1 i.e. the original tenant had expired. It appears that the order of the Rent Controller was not communicated by the Rent Controller to any of the present petitioners.

3. It was the contention of the appellants in the appeal memo that they received summons in a consequent suit being Civil Suit No. 335/98 for delivery of possession and recovery of damages from them. The appellants applied for grant of certified copy of the order thereafter on 18-9-1998. The certified copy was received by them on 18-2-1999 and the appeal has been thereafter filed on 4-3-1999.

4. I find that since there is no actual communication of the order of the Rent Controller, it can not be said that the appeal in question was barred by the limitation. The Advocate for the respondent No. 1 points out that if summons were found to be served on the petitioners on 30-12-1996 then it should be held that they were having knowledge of passing of the order by the Rent Controller. It is submitted that in spite of this, there was gross delay in applying for certified copies. Merely having knowledge of passing of the order would not be sufficient to held that there was actual communication of the order.

5. I find that the Additional Collector has passed his order on some typographical mistakes relating to the date of the order passed by the Rent Controller. The Additional Collector could have ascertained the correct date of the order passed by the Rent Controller by perusing the order itself instead of holding that the petitioner is making contradictory statement. He has not properly construed the provisions of Section 21 of the Rent Control Order. In the circumstances I am inclined to allow this writ petition and remand the matter for decision on merits in the appeal R.C. No. 113/A-71(2)/98-99. The Additional Collector, Nagpur will decide the appeal within a period of six months from today.

6. Rule is made absolute in the above said terms.