1. The present Civil Revision Application u/s.115 of the Code of Civil Procedure has been preferred by the applicants herein – original defendants challenging the impugned order dated 30/08/2011 passed by learned Appellate Court in Civil Misc. Application No.48 of 2009, by which, learned Appellate Court has dismissed the said application submitted by applicants herein, which was submitted to condone the delay of approximately 17 months and 26 days in preferring the appeal against the judgement and decree dated 12/09/2007 passed by learned Small Causes Court, Vadodara in Rent Suit No.81 of 1991.
2. Facts leading to the present petition, in nutshell, are as under:
Respondents herein – original plaintiffs instituted Rent Suit No.81 of 1991 in the court of learned Small Causes Court, Vadodara for getting decree of possession on the ground of arrears of rent. That the applicants appeared before the learned Trial Court by filing written statement at Exh.15 and the applicants denied that they are tenants of suit property in question. That learned Trial Court framed issues at Exh.66. It appears that application Exh.13 was submitted by the respondents herein - original plaintiffs for appropriate order directing the applicants herein – original defendants to deposit due rent amount before the Court and the learned Trial Court passed an order directing the applicants herein to deposit due rent amount. That the applicants herein – original defendants did not comply with the order passed by learned Trial Court and did not deposit the due rent amount.
Thereafter, original plaintiffs submitted an application below Exh.28 under Section 11(4) of the Bombay Rent Act to struck off the defence of the defendants. Thereafter, learned Court passed an order below Exh.28 to struck off the defence of the defendants. Thereafter, learned Small Causes Court, Vadodara by impugned judgement and decree dated 12/09/2007 allowed the said Suit and directed the original defendants to hand over the vacant and peaceful possession of the suit premises to the plaintiffs. It appears that the applicants are heirs and legal representative of original defendant No.1 - original tenant, who died after judgement and decree passed by learned Small Causes Court, Vadodara. After a period of 17 months and 26 days, the applicants herein – legal heirs and representatives of original defendant No.1 – tenant have preferred appeal before Appellate Court. However, there was delay of 17 months and 26 days in preferring the appeal and, therefore, the applicants herein – legal heirs and representatives of original defendant No.1 preferred delay condonation application being Civil Misc.Application No.48 of 2009. It was the case on behalf of the applicants that they were not aware about the judgement and decree passed by learned Trial Court as their father- original defendant No.1 was looking after the case. It was pleaded that from some files, they came to know about the proceedings and it was found that there was judgement and decree passed by the learned Trial Court and, therefore, it is requested to condone the delay in preferring the appeal.
3. The said application was opposed by legal heirs and representatives of original plaintiff as original plaintiff died during the pendency of the Rent Suit. By reasoned order, learned Appellate Court has dismissed the delay condonation application by holding that the applicants have not stated correct facts with respect to knowledge of the judgement and decree passed by the learned Trial Court. Therefore, learned Appellate Court has observed that no sufficient cause has been shown by the applicants herein to condone the huge delay of 17 months and 26 days in preferring the appeal and consequently, the learned Appellate Court has dismissed the said delay condonation application. Hence, the applicants herein – legal heirs and representatives of original defendant, have preferred the present Civil Revision Application u/s.115 of the Code of Civil Procedure.
4. Mr.Bukhari, learned advocate appearing on behalf of the applicants herein has submitted that learned Appellate Court has materially erred in not condoning the delay. It is submitted that the applicants are very poor and, therefore, one additional opportunity should be given to the applicants to submit their case on merits rather than non-suiting the same on technical ground of delay. While considering the delay condonation application, this Court is required to take liberal approach to do substantial justice. Therefore, it is requested to allow the present Civil Revision Application and to condone the delay in preferring the appeal and to direct the learned Appellate Court to decide and dispose of the said appeal in accordance with law and on merits.
5. The present Civil Revision Application is opposed by Mr.Manoj Popat, learned advocate appearing on behalf of the respondents herein. It is submitted that it is rightly held by learned Appellate Court that no sufficient cause has been shown by the applicants herein to condone the huge delay of 17 months and 26 days. It is further submitted that on merits also, the applicants have no case. Relying upon the decision of the Hon'ble Supreme Court in the case of Lanka Venkateswarlu (D) by L.Rs. V/s. State of A.P. & Ors. reported in AIR 2011 SC 1199, it is requested to dismiss the present Civil Revision Application.
6. Heard learned advocates appearing on behalf of the respective parties at length.
At the outset, it is required to be noted that as such there is huge delay of 17 months and 26 days in preferring the appeal against the judgement and decree passed by learned Small Causes Court, Vadodara. As observed by learned Appellate Court, the applicants have failed to show any sufficient cause in preferring the appeal after a period of 17 months and 26 days. Considering the impugned order passed by learned Appellate Court, this Court is in complete agreement with the view taken by learned Appellate Court that no sufficient cause has been shown by the applicants in preferring the appeal after a period of 17 months and 26 days. In the case of Lanka Venkateswarlu (D) by L.Rs. (supra), the Hon'ble Supreme Court has observed that concepts such as “liberal approach”, “justice-oriented approach”, “Substantial justice” cannot be employed to jettison substantial law of limitation - Especially, in cases where Court concludes that there was no justification for delay. Considering the aforesaid decision of the Hon'ble Supreme Court as well as considering the facts and circumstances of the case, as no justification is shown for huge delay of 17 months and 26 days in preferring the appeal, it cannot be said that the learned Appellate Court has committed any error and/or illegality in not condoning the delay. Even this Court has also considered the merits of the case so as to see that no injustice is caused to the applicants. It is required to be noted that judgement and decree passed by learned Trial Court was on the arrears of rent and even the defence of the applicants was struck off. Learned advocate appearing on behalf of the applicants is not in a position to satisfy the Court how the judgement and decree passed by learned Small Causes Court, Vadodara is erroneous and/or illegal. All the formalities, which are required to be followed for getting decree, has been followed and arrears of rent is also proved. It is required to be noted that even original tenant has tried to dispute his status as tenant. However considering the various documents i.e. rent agreement Exh.14 and sale deed at Exh.118, learned Trial Court has held issue of tenancy against the tenant. Considering the aforesaid facts and circumstances, even the applicants have no case on merits.
7. Considering the aforesaid facts and circumstances of the case, there is no substance in the present Civil Revision Application and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged.
[M.R.SHAH,J] *dipti