The petitioner is a tenant under the respondents and he was respondent in RCOP.No.556 of 2008 on the file of the XIII Judge, Small Causes Court, Chennai filed by the respondents for eviction under Order 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18/1960 as amended by Act 23/1973. An exparte eviction order was passed by the learned XIII Judge, Small Causes Court on 16.6.2008. Hence the petitioner filed an application under rule 12(3) of the Tamil Nadu Buildings (Lease and Rent Control) Rules 1974 to set aside the exparte eviction order along with an application under Section 5 of the Limitation Act to condone the delay of 306 days in filing the said application. In the affidavit filed in support of the application, he stated that he is an Air Conditioner mechanic and he would not be available at all times in his godown, that he was not aware of the summon sent by the landlord and hence he could not attend the court on 11.4.2008.
2. In the counter affidavit filed by the landlord, the above contentions have been controverted and it has been stated that the petitioner has not properly explained the delay of 306 days and that the petition has been filed with malafide intention to curtail the proceedings without paying any rent to the respondents. Learned XIII Judge of Small Causes Court, Chennai dismissed the application by observing that since the petitioner was served with summons through post, he was put on knowledge of the rent control proceedings and hence the delay can not be condoned. It is evident from the order challenged before this court that the court below carefully scrutinised the court records and found that the petitioner was served with notice through post. Having received the notice from the court, the petitioner did not appear before the court and hence he was set exparte. The reason adduced in the affidavit for condoning the delay of 306 days is not at all convincing and also not satisfactory.
3. Mr.E. Ramachandran, learned counsel for the petitioner placed reliance of a decision of the Apex Court reported in A.I.R. 1987 SC 1353 ( Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others), wherein Their Lordships formulated guidelines to be observed in the matter of condoning the delay, which are as follows:
"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 condoned 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 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 malafides. 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 regalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
4. He advanced his argument that the petitioner has got valid ground and defence in the rent control proceedings and his claim may not be prevented at the threshold and that as observed by the Supreme Court he has got a meritorious claim before this court.
5. Mrs.R.Gowri, learned counsel counsel for the respondents drawn the attention of this court to a decision rendered in Dhanalakshmi Financiers, rep. by its Managing Partner T.M.Kathirvel vs. Soundarammal and others reported in (2009) 1 MLJ 1328 for a proposition that if any valuable right is accrued to the other side, the delay could not be condoned. It was a case where a delay of 1573 days was sought to be condoned and the said claim was rejected by observing that the petition was represented beyond the time limitation, which is prescribed for filing the same. In yet another judgement reported in 2009 5 MLJ 276 (State Bank of Mysore, Chennai Main Branch, Chennai vs. Syarikat Pengerak Penang, a Registered partnership Firm by their Power of Attorney Agent K.T.M. Mohamed Basheer, Chennai and others), this court observed that when there is absolutely no sufficient cause or reasoning has been given in the affidavit in the petition filed under Section 5 of the Limitation Act to condone the delay of 1240 days in preferring a petition, the same could not be condoned. The Learned Judge of the Hon'ble Supreme Court referred to various judgements of the Apex Court as well as this court to reach his conclusion.
6. Learned counsel for the respondent also gathered support from different decisions of this court and stated that in the matter of condoning the delay in rent control proceedings, regular appeal has to be preferred under Section 23 of the Rent Control Act and
Article 227 of the Constitution of India cannot be invoked before this court. In 2007 (3) CTC (S.M.Chandrasekaran vs. S.S.Jayamani and others), this court held that the revision is not maintainable against the order refusing to condone the delay and is appealable under Section 23 of the Rent Control Act. In the above decision, this court gave liberty to the petitioner therein to prefer a regular appeal.
7. In view of earlier consistent opinion of this court, it is held that the petitioner should have preferred regular appeal for condoning the delay under the Rent Control Act and the revision is not sustainable. It has to be noted that the petitioner did not assign any valid reason for condoning the delay and the reasons assigned in the affidavit are not satisfactory. It has been made clear that the petitioner was put on knowledge of rent control proceedings, since he received notice sent by the court through post. Hence the order under challenge before this court does not call for any interference which deserves to be confirmed and accordingly the same is confirmed.
8. In fine, the civil revision petition is dismissed. No costs. Consequently the connected M.P.No.1 of 2009 is also dismissed. Petitioner is at liberty to prefer an appeal, if so advised.
To XIII Judge, Small Causes Court, Chennai Note: The Registry is directed to return the original impugned order by substituting a copy of the same.
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