JUDGMENT K.S. Rakhra, J.
1. In this writ petition under Article 226 of the Constitution of India, the petitioners are praying for a writ of certiorari for quashing the order and judgment dated 27.4.2001, passed by XVth Additional District Judge, Lucknow in Rent Appeal No. 43 of 1993 and order dated 17.5.1993 of the Prescribed Authority under U. P. Act No. 13 of 1972 passed in P.A. Case No. 73 of 1986 on an application for release of premises under Section 21 (1) (a) of the said Act.
2. I have heard Sri B. K. Saxena, advocate for the petitioner and Sri D. K. Tripathi advocate for the respondents.
3. The dispute relates to House No. 96/111, Sonarwali Gall, Old Ganeshganj, Lucknow, in which the petitioners are in occupation as tenants in three rooms at the ground floor and one room at the first floor. Admittedly, it is an old tenancy and this building was purchased by the present landlord on 1.7.1983. In the year 1986 an application under Section 21(1) (a) of U. P. Act No. 13 of 1972 was moved by the landlord mainly on two grounds one that the landlord opposite party who is residing at Malihabad at Lucknow, wants to live at Lucknow for proper education and upbringing of her son aged about 9 years. The second ground was that the husband of the landlord was to stay for his livelihood at Lucknow. The Annexure-1 to the writ petition is the copy of the application moved by the landlord and the Annexure-2 to the writ petition is the copy of the written statement of Smt. Chandrakanta petitioner in this writ petition.
4. The main contention of the petitioner was that there was no bona fide need of the landlord for the premises in question and the comparative hardship was in favour of the tenant. Some other pleas about the maintainability of the release application were also raised. This written statement was filed on 30.8.1991 i.e., after about 5 years of the initiation of the proceedings. The date 19.12.1992 was fixed in those proceedings for hearing but on that day, there was curfew imposed in Lucknow and the working of the Courts was also paralysed. The Courts, therefore, gave a general date of 28.1,1993 for hearing in all those matters fixed for 19.12.1992. On 28.1.1993, the landlord moved an application for filing additional affidavit in support of her application. The prescribed authority rejected the application and declined to take on record the additional affidavit. The Annexure-3 is the copy of the order dated 28.1.1993 of the prescribed authority which shows that the case was fixed for evidence of tenants in rebuttal. The prescribed authority noted that neither any evidence in rebuttal was filed nor any application for time was given by the tenant and, therefore, the evidence of the tenants was closed. The Court fixed 18.2.1993 for hearing arguments in the matter. Thereafter, on 10.3.1993, the tenants made an application (Annexure-4) before the prescribed authority for recall of the order dated 28.1.1993 and providing her an opportunity to file evidence. This application and the supporting affidavit appears to have been prepared on 18.2.1993 but it was actually filed on 10.3.1993. This application of the tenant was taken up for consideration on 22.3.1993 and was rejected by the prescribed authority with the observations that the tenant opposite party has been conducting negligently and the prescribed authority further took notice of the fact that there was no explanation for the absence of tenants on 18.2.1993 nor was there any explanation for not adducing evidence in rebuttal till 22.3.1993. Even no counter-affidavit was proposed to be filed on 22.3.1993. Finding of the application of the tenant as mala fide, the prescribed authority rejected the same.
5. The tenant then made another application on 15.4.1993 which was the date fixed and prayed that the order dated 22.3.1993 be recalled by the prescribed authority. The prescribed authority rejected the prayer, vide order dated 16.4.1993 (Annexure-7) and fixed the case for judgment permitting the tenant to file written argument if any, before the date fixed. Ultimately, the application of the landlord under Section 21 (1) (a) of the U. P. Act No. 13 of 1972, was allowed by the prescribed authority on 17.5.1993. As mentioned earlier, the appeal against the said order of the prescribed authority has also been dismissed on 27.4.2001. The appellate court also came to the conclusion that the totality of the circumstances clearly showed that the tenant has been purposely delaying the proceedings and was responsible for letting the proceedings go ex parte against her.
6. The main contention of the petitioner in support of his prayer in this writ petition is that the petitioner was denied opportunity of hearing and that It had resulted into miscarriage of justice. Although other pleas were also raised in the writ petition but at the time of the argument, the learned counsel for the petitioners confined his submissions only to the ground of denial of opportunity of hearing. No other ground was pressed.
7. Since the prescribed authority as well as the first court of appeal have held that the application under Section 21(1) (a) of the U. P. Act No. 13 of 1972, was maintainable and the premises was bona fide needed by the landlord and the comparative hardship was also in favour of the landlord, there is absolutely no justification for disturbing the said finding of fact and especially so, when the tenant had not filed any counter-affidavit.
8. The only point to be considered is whether the tenant petitioner has been denied opportunity of hearing in the matter.
9. Learned counsel for the petitioner has placed reliance on the case of Ram Nath Sao alias Ram Nath Sahu and Ors. v. Gobardhan Sao and Ors., 2002 SAR (Civil) 302 (SC) and the case of the Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. 1987 (1) ARC 288, in which it has been held that prayer for condonation of delay should be granted liberally so as to advance substantial justice. It was argued that the delay in the present case on the part of the tenant petitioner, was only of 3-4 months because the prescribed authority decided the matter on 17.5.1993 while 28.1.1993 was the date fixed for adducing evidence in rebuttal.
10. There cannot be any dispute on the principle that the delay condonation applications must be allowed liberally so as to advance the substantial justice between the parties but this principle is subject to the condition that the party seeking condonation, is himself not guilty of negligence or inaction or want of bona fide. We have, therefore, to see, if in the present case, the tenant was guilty of negligence, inaction and want of bona fide, or not. It is significant to note that the landlord had filed application under Section 21 (1) (a) of the U. P. Act No. 13 of 1972, in the year 1986. It was not the first time that the tenant showed negligence or inaction in not adducing the evidence but as stated in the counter-affidavit and apparent from the document, filed along with it, the tenant has been creating impediments and purposely causing delay at each and every stage of the proceedings. The tenant took five years to file written statement before the prescribed authority and also took dozens of adjournments. On three previous occasions, i.e., on 7.10.1986, 8.5.1987 and 22.2.1990, the case proceeded ex parte against the tenant but later on, the order to proceed ex parte, was recalled on the application of the tenant. In the order sheet dated 21.4.1987, Annexure-6 to the counter-affidavit, the prescribed authority while disposing of adjournment application of the tenant observed that the tenant has not filed written statement despite repeated directions and has started dilatory devices from the very start. However, one more opportunity was allowed to the tenant on payment of costs. The tenant was warned that if the condition imposed by the order was not fulfilled, the case will proceed ex parte. Again on 8.4.1988 (Annexure-C7), the tenant prayed for time to file written statement. The prescribed authority showed its indulgence and again, reluctantly, granted time to the tenant for filing written statement on payment of costs and warned that if written statement was not filed within 15 days the case will proceed ex parte.
11. Annexure-C.A. 8 to the counter-affidavit is the copy of the order dated 10.7.1991 of the prescribed authority recalling an earlier order to proceed ex parte and directing the tenant to file written statement upto 20.7.1991. In doing so, the prescribed authority again observed that the material on record showed that the tenant was wilfully adopting dilatory attitude. However, in the interest of justice, the prescribed authority thought it proper to grant one opportunity to the tenant and thus, recalled the order dated 22.2.1990 for proceeding ex parte. Annexure-C.A. 9 to the counter-affidavit is the copy of the order dated 21.10.1990 for proceeding ex parte on the ground that the tenant was absent and was not responding on the call. It was observed that the tenant was wilfully abstaining and delaying the disposal of the case. The prescribed authority, however, again showed indulgence and granted one more opportunity to the tenant directing her to file evidence in rebuttal failing which, the evidence would be closed.
12. Thus, it is clear that the petitioner tenant was not pursuing her matter diligently and was guilty of negligence and inaction and showed lack of bona fide.
13. Principle of condoning the delay liberally to advance substantial justice is not meant to be applied to the case of the litigant who by his conduct is not letting the case proceed to a final stage and has been totally misusing the indulgence shown by the prescribed authority or the Court in his favour. The writ jurisdiction of this Court is an equity jurisdiction. This Court would be loath in exercising the jurisdiction in favour of a party who does not show respect to law and is guilty of negligence, inaction and want of bona fide, A party cannot be permitted to take advantage of his own misconduct.
14. This Court is, therefore, of the opinion that the writ petition has no force and should be dismissed.
15. The learned counsel for the petitioner, however, made a mercy appeal by stating that the marriage of the petitioner's daughter is going to be performed in February, 2004 and if at this stage, the petitioners are required to shift to some new premises, it will cause a great inconvenience and adversely affect the marriage arrangements. The learned counsel requested that in case the writ petition was to be dismissed, the petitioners be given time to vacate the premises in question by March, 2004. After taking the facts and circumstances of this case into consideration, this Court is of the view that this concession may be given if the petitioners' give an undertaking that they will not agitate the matter any further in any Court and would vacate the premises in question giving vacant possession to the landlord opposite party by the end of March, 2004.
16. With these observations, this writ petition is dismissed.