1.0. Present Civil Application under Section 5 of the Limitation Act has been preferred by the applicant herein-original defendant to condone the delay of 3187 days in preferring the Civil Revision Application challenging the impugned judgment and order dated 9.8.2002 passed by the learned Appellate Bench of the Small Cause Court, Ahmedabad passed in Civil Appeal No.65 of 1993 as well as the judgment and decree dated 15.7.1993 passed in H.R. P. Suit No.1032 of 1983.
2.0. It appears that the original plaintiffs instituted HRP Suit No.1032 of 1983 as far as back in the year 1983 against the original defendant Chandrakant Champaklal Shah for recovery of the possession of the suit premises on the ground of sub letting by the original defendant no.1 in favour of original defendant no.2 who was alleged to running a club for gambling business in it. That the learned Small Cause Court, Ahmedabad by judgment and decree dated 15.7.1993 decreed the said HRP Suit No.1032 of 1983 i.e. after a period of 10 years from the date of filing of the suit.
2.1. That being aggrieved and dissatisfied with the judgment and decree passed by the learned Small Cause Court, Ahmedabad passed in HRP Suit No.1032 of 1983, the heirs of the original defendant no.1 the petitioner herein preferred Regular Civil Appeal No.65 of 1993 before the Appellate Bench of the Small Cause Court, Ahmedabad and the learned Appellate Bench of the Small Cause Court, Ahmedabad by judgment and order dated 9.8.2002 dismissed the said appeal confirming the judgment and decree passed by the learned trial Court.
2.2. That after a period of almost more than 9 years i.e. 3187 days, the petitioner herein heir and legal representative of the defendant no.1 has preferred the present Civil Revision Application under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (herein after referred to as "Rent Act") That as there is a delay of 3187 days in the preferring the Civil Revision Application, the applicant has preferred Civil Application under Section 5 of the Limitation Act requesting to condone the delay by submitting that the advocate of the applicant did not inform him about disposal of the appeal and that he came to know about the judgment and order passed by the learned Appellate Bench of the Small Cause Court, Ahmedabad dismissing the appeal only on 10.5.2011 having received the notice of the execution application. It is the case of the applicant that immediately thereafter he applied for the certified copy of the judgment and order on 19.6.2011 and that thereafter the present applicant has been preferred.
3.0. Ms.
Dhara Shah, learned advocate for Ms. Nanavati, learned advocate for the applicant has vehemently submitted and has requested to condone the delay by submitting that as there is no negligence on the part of the applicant. She has requested to take pragmatic and sympathetic view in the matter and has requested to condone the delay.
4.0. Present application is opposed by Shri Buch, learned advocate for heir of original plaintiff. It is submitted that there is huge delay of approximately more than 9 years i.e. 3187 days which has not been explained at all. It is submitted that respondent is the owner of the suit premises and in possession of the entire premises except the demised premises consisting of a room, which is in complete dilapidated condition on account of non use since long. It is submitted that as demised premises has been lying vacant since long and that itself proves that the present application has been filed only with a view to harass the respondent and drag her into litigation for extraneous consideration. It is submitted that as such it is not possible to believe that the applicant could not get the information with respect to the dismissal of the appeal, which came to be dismissed in the year 2002. Relying upon the decision of the Hon'ble Supreme Court in the case of Post Master General & Ors vs. Living Media India Limited and Anr reported in (2012) 3 SCC 563 as well as in the case of Lanka Venkateswarlu (D) by Lrs vs. State of of A.P. & Ors reported in AIR 2011 SC 1199 it is requested to dismiss the present application.
5.0. Heard the learned advocates for the respective parties at length and considered the averments in the application in support of the prayer to condone the delay. At the outset, it is required to be noted that there is huge delay of approximately more than 9 years i.e. 3187 days in preferring the Civil Revision Application against the judgment and order passed by the learned Appellate Bench of the Small Cause Court, Ahmedabad passed in the year 2002. Considering the averments in the application in support of the prayer to condone the delay, it appears to the Court that as such no sufficient cause has been shown explaining the huge delay of 3187 days. It is not believable at all that the applicant had no knowledge about the dismissal of the appeal till 2011, which came to be dismissed in the year 2002. It is not believable at all that during all these years, he did not inquire from his advocate with respect to the status of the appeal. Nothing is on record that learned advocate for the applicant did not inform him with respect to dismissal of appeal, which came to be dismissed in the year 2002. It is to be noted that the suit has been filed by the original plaintiff for recovery of possession as far as back in the year 1983 and still for whatever reasons even after the period of 29 years heirs of the original plaintiff are not in a position to enjoy the fruits of the litigation and get back the possession. It appears from the affidavit in reply that the suit premises in question is not used since long and there is no counter to affidavit in reply that since long the suit premises in question has not been used. Therefore, it appears that the present Civil Revision Application which has been filed after a period of 9 years to drag the respondents into litigation for extraneous consideration.
6.0. Considering the aforesaid facts and circumstances of the case and the decision of the Hon'ble Supreme Court in the case of Post Master General & Ors(supra) and Lanka Venkateswarlu (D) by Lrs (supra), no case is made out to condone the huge delay of 3187 days. Present application deserve to be dismissed and is accordingly dismissed. Rule is discharged.
sd/-
( M. R. Shah, J. ) "kaushik"
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