Telangana High Court

Bharat Petroleum Corporation Limited, vs M/S. Palladium Real Estate And ... on 23 August, 2024

           THE HONOURABLE SRI JUSTICE SUJOY PAUL


              CIVIL REVISION PETITION No.2499 of 2024

ORDER:

This petition filed under Article 227 of the Constitution

impugns the order dated 02.07.2024 passed in I.A.No.41 of 2024

in R.C.No.17 of 2022, whereby the application filed by the

petitioner/tenant under Section 5 of the Limitation Act, 1963,

seeking condonation of delay of 64 days was rejected by the

Principal Rent Controller at Secunderabad (Authority).

2. In short, admitted facts between the parties are that the

main rent control case in R.C.No.17 of 2022 was filed by the

respondent/landlord before the learned Authority. Upon receiving

notice, the tenant appeared and filed an application under Order

VII Rule 11 of CPC for rejection of the said rent control case on the

ground that the schedule property was a vacant land and not

building and hence, the rent control case is not maintainable. The

learned Authority by order dated 10.04.2023 rejected the plaint.

3. Aggrieved by the aforesaid order dated 10.04.2023, the

landlord preferred C.R.P.No.1561 of 2023, which was decided on

05.01.2024. This Court set aside the order dated 10.04.2023.

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The contention of the learned Senior Counsel for the

petitioner/tenant is that the order dated 05.01.2024 passed by

this Court in C.R.P.No.1561 of 2023 was made available to the

tenant only on 23.04.2024.

4. On the strength of this Court's order dated 05.01.2024, the

landlord preferred a memo, whereby order of this Court was

placed before the learned Authority. On the basis of said memo,

the R.C.No.17 of 2022 was restored to its original number and the

tenant was directed to be noticed again.

5. The office of the learned Authority never issued any notice to

the petitioner, instead learned counsel for the respondent on

22.01.2024 filed a memo along with proof of service of personal

notice issued to the Head Office of the petitioner in Mumbai.

Pertinently, the application preferred under Order VII Rule 11 of

CPC (I.A.No.72 of 2022) was filed by the Hyderabad Office of the

tenant. The learned counsel, who was already appearing in

R.C.No.17 of 2022 for the tenant, was not put to notice nor local

office was served by the landlord.

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6. Learned Authority set the petitioner ex parte without

appreciating that notice was not issued in accordance with Rules

8 and 22 of the Telangana Buildings (Lease, Rent and Eviction)

Control Rules, 1961. Learned Authority by treating the tenant as

served has passed final order in R.C.No.17 of 2022 on 18.03.2024.

7. Sri Avinash Desai, learned Senior Counsel appearing for the

tenant submits that the Head Office of the tenant at Mumbai came

to know about service of notice in the last week of May, 2024.

Learned counsel appearing for the tenant before the Court below

accordingly filed application dated 21.06.2024 for setting aside the

ex parte order along with an application for condonation of delay.

The landlord filed its counter in the condone delay application.

The parties were heard by the learned Authority on 26.06.2024

and by order dated 02.07.2024, the condone delay application was

dismissed.

8. Learned Senior Counsel appearing for tenant submits that

as per the Rules, the learned Authority ought to have ensured that

the learned counsel for the tenant, who was appearing in

R.C.No.17 of 2022, is put to notice. Learned Authority failed to

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ensure the same and miserably failed to see that as per the

directions issued by it, the Office/Registry of the Authority had

never issued any notice to the petitioner upon the restoration of

the matter. On the strength of recent common order passed by

this Court in C.R.P.Nos.2084 of 2024 and batch dated

02.08.2024, learned Senior Counsel for the tenant submits that

this Court has taken note of relevant Supreme Court judgments

on the question of condonation of delay. The Authority has

mechanically declined to condone the delay. In an organization of

tenant like Bharath Petroleum Corporation Limited, the

administrative procedure consumes time, which is a normal

procedure. In the fitness of things, the Authority should have

allowed the application and should not have rejected it on hyper

technical grounds.

9. Sri A. Venkatesh, learned Senior Counsel appearing for

landlord opposed the same by contending that the affidavit

seeking condonation of delay filed by the tenant clearly shows that

the Head Quarter of the tenant admittedly received personal notice

sent by the learned counsel for the landlord. Reliance is placed on

paras 10, 11 and 15 of the said affidavit. It is further urged that

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after having gathered information at Mumbai about ex parte order

dated 18.03.2024, the tenant has not mentioned any relevant

dates as to when the Head Quarters processed the matter and it

reached up to its local office. In absence of mentioning these

relevant dates with accuracy and precision, the delay cannot be

condoned. In support of his contention reliance is placed on the

judgment of Supreme Court in the case of Pathapati Subba

Reddy vs. Special Deputy Collector (LA) 1 and on the judgment

of Madras High Court in the case of Indian Oil Corporation

Limited vs. Sakuntala Ganapathy Rao 2.

10. The parties confined their arguments to the extent indicated

above.

11. I have heard the parties at length and perused relevant

papers.

12. At this stage, the adjudication must be confined to the

impugned order dated 02.07.2024 only, whereby the application

for condonation of delay was rejected. Thus, this Court is not

inclined to enter into the area whether the Authority was justified

2024 SCC OnLine SC 513

MANU/TN/0310/1998

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in proceeding ex parte and passing final order dated 08.03.2024.

If the petitioner herein succeeds, the delay will be condoned and

restoration application will be required to be heard on its own

merits. Thus, the limited examination required in this case is

about the validity of order rejecting the application preferred

under Section 5 of the Limitation Act, 1963.

13. Before dealing with the facts of the instant case, it is

apposite to consider the judgment of Supreme Court in the case of

Collector, Land Acquisition, Anantnag vs. Mst. Katiji 3,

wherein, it was held as under:

"3...

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is con- doned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to

(1987) 2 SCC 107

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have vested right in injustice being done because of a non-

deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal."

(Emphasis Supplied)

14. The ratio decidendi of the aforesaid judgment is by and large

followed by the Supreme Court till date, which is evident by

perusal of para 26 of judgment of Pathapati Subba Reddy (supra)

on which reliance is placed by the learned Senior Counsel for

landlord. Thus, ordinarily it is the existence of 'sufficient cause',

which is material and not the amount of delay. In other words,

the application for condone delay cannot be decided by taking a

'stopwatch' in hand.

15. The Apex Court in Mst. Katiji (supra) disapproved the

expectation about explaining every day's delay. It was held that a

justice oriented approach should be adopted and it should not be

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forgotten that even if condone delay application is allowed and

ultimately, original matter is restored to its original number, it will

only facilitate parties to contest the matter on merits. Thus,

unless the application miserably fails to explain the delay and

does not provide reasons and 'sufficient cause' for such conduct,

the application for condone delay should not be thrown to winds

mechanically.

16. In this backdrop, if present application of the petitioner i.e.,

I.A.No.41 of 2024 is examined, it will be clear that the petitioner

came to know about the ex parte order only in the last week of

May, 2024. Thereafter, the matter was processed through

administrative channels and ultimately, interlocutory application

for condone delay came to be filed on 21.06.2024. The Authority

in para (iv) opined that the Court's Summer Vacations were only

up to first week of June, 2024 and present petition was belatedly

filed on 21.06.2024. This explanation of delay is unacceptable.

17. In the opinion of this Court, the learned Authority has taken

a hyper technical view and in fact, expected explanation of each

day's delay. This cannot be disputed that in Government

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organizations/Public Sector Undertakings (PSUs), the

administrative set up is such that it takes time to take decision.

Unless, the reason assigned is totally unbelievable and delay is

inordinate, ordinarily condone delay applications must be dealt

with leniently.

18. The Apex Court in this aspect in the case of Sheo Raj Singh

vs. Union of India 4, at relevant paras held as under:

"36. We can also profitably refer to Koting Lamkang (supra), cited by Mr. Sen, where the same Bench of three Hon'ble Judges of this Court which decided University of Delhi (supra) was of the view that the impersonal nature of the State's functioning should be given due regard, while ensuring that individual defaults are not nit-picked at the cost of collective interest. The relevant paragraphs read as follows:

"7. But while concluding as above, it was necessary for the Court to also be conscious of the bureaucratic delay and the slow pace in reaching a government decision and the routine way of deciding whether the State should prefer an appeal against a judgment adverse to it. Even while observing that the law of limitation would harshly affect the party, the Court felt that the delay in the appeal filed by the State, should not be condoned.

8. Regard should be had in similar such circumstances to the impersonal nature of the Government's functioning where individual officers may fail to act responsibly. This in turn, would result in injustice to the institutional interest of the State. If the appeal filed by the State are lost for individual default, those who are at fault, will not usually be individually affected."

(underlining ours, for emphasis)

2023 LiveLaw (SC) 865

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37. Having bestowed serious consideration to the rival contentions, we feel that the High Court's decision to condone the delay on account of the first respondent's inability to present the appeal within time, for the reasons assigned therein, does not suffer from any error warranting interference. As the aforementioned judgments have shown, such an exercise of discretion does, at times, call for a liberal and justice-oriented approach by the Courts, where certain leeway could be provided to the State. The hidden forces that are at work in preventing an appeal by the State being presented within the prescribed period of limitation so as not to allow a higher court to pronounce upon the legality and validity of an order of a lower court and thereby secure unholy gains, can hardly be ignored. Impediments in the working of the grand scheme of governmental functions have to be removed by taking a pragmatic view on balancing of the competing interests."

19. In the light of principle laid down in the aforesaid judgment,

no benefit can be extended in favour of landlord based on the

judgment of Madras High Court in the case of Indian Oil

Corporation Limited (supra).

20. In nutshell, the reason/cause shown by the tenant for

belatedly filing I.A.No.41 of 2024 is in the opinion of this Court

constituted 'sufficient cause'. Thus, the learned Authority erred in

rejecting I.A.No.41 of 2024. Consequently, the order dated

02.07.2024 is set aside and the delay of 64 days is condoned. The

learned Authority is directed to decide the application for

restoration of matter on its own merits in accordance with law.

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