Landlord in R.C.O.P No. 2857 of 1990, on the file of XVI Judge, Court of Small Causes, Madras, is the revision petitioner.
2. Petitioner herein filed R.C.O.P 2857 of 1990 against the respondent for eviction. An exparte order was passed on 3.5.1991 The matter came up for first hearing on 20.12.1990 Since service could not be completed, it was adjourned, and the Rent Controller ordered fresh notice. Rent Controller also ordered substituted service by publication, returnable by 30.4.1991 On 30.4.1991, respondent was called. Since he was absent, he was set ex parte, and the matter was posted to 3.5.1991 for ex parte evidence. On 3.5.1991, evidence was taken and an order of eviction was passed.
3. Alleging that he came to know about the ex parte order after a long time, respondent filed an application to set aside the ex parte order, is M. No. 110 of 1992. He did not file any application to condone delay even though the Rules provide that such application has to be filed within 30 days from the date of decree. Respondent relied on the date of knowledge, and said that the application was filed within 30 days from that date.
4. Rent Controller took cognizance of the same and ordered notice to be served on the petitioner. Neither the notice was served on me petitioner, nor the respondent took notice. Consequently, the petition was dismissed for default.
5. Petitioner sold not only me property in question to Messrs. Shenoy Nagar Benefit Funds Limited but also adjoining portion which is occupied by Civil Supplies Corporation. As against mat Corporation also, petitioner herein had filed an eviction petition and obtained an order. It is after getting possession from the Civil Supplies Corporation, the sale of me entire property was effected.
6. After knowing about the same, respondent herein filed R.CO.P No. 2657 of 1993 against the purchaser compelling to receive rent from him. The allegation was mat the purchaser has refused to receive rent in spite of earnest requests made by him. It is said that an order was passed in his favour.
7. Thereafter, the purchaser filed E.P 385 of 1996. After getting notice of the same, a furmer application was filed by respondent herein as M.P 742 of 1996 in M.P No. 110 of 1992, to restore the earlier application which had already been dismissed for default. It is alleged in that petition by the respondent that after me ex parte order of eviction, and after he filed M.P 110 of 1992, he met the petitioner herein who assured him that he will not be dispossessed and his intention is only to sell die property. The respondent further averred that he believed me words of die petitioner and, dierefore, did not take steps to have the notice served on the petitioner. Only when the purchaser initiated action, he knew mat he has been defrauded and, dierefore, wanted the delay of 1650 days to be condoned and die Miscellaneous Petition restored to file.
8. A detailed counter affidavit was filed by petitioner tiiat he never met the respondent at any time, nor did he tell him that he will not execute die order. The reasons stated for condoning die delay are false. It is his case mat he never made any representation to die tenant as alleged in me affidavit.
9. The respondent did not think of adducing any evidence to have die delay condoned. Both parties relied on die affidavit which they have filed, and, by die impugned order, lower court condoned die delay and restored M.P 110 of 1992 to its file. While restoring that application, the Rent Controller further observed mat the Execution Petition is not maintainable. The purchaser has also acted without any bona fides since the purchaser has initiated action four years after the sale, the case put forward by the respondent must be true and that sufficient grounds have been made out for condonation of delay. The said order is challenged in this Revision Petition under Art. 227 of the Constitution of India.
10. I ordered notice of motion, and, after receipt of notice, respondent also entered appearance.
11. Learned counsel appearing for both parties were heard in detail.
12. Learned counsel for respondent challenges even the very maintainability of the Revision under Article 227 of the Constitution. His case is that a discretion has been exercised by the lower Court and me same should not be upset while exercising judicial supervisory jurisdiction under Art. 227 of the Constitution of India. According to learned counsel, ‘sufficient cause’ referred to in Sec. 5 of me Limitation Act has received a liberal construction, and when once the Court has exercised that power, the High Court should not upset that finding under Art. 227 of the Constitution of India.
13. Learned counsel relied on the decision reported in AIR 1968 SC 222 (Lonand Gram Panchayat v. Ramgiri Gosavi and another) wherein their Lordships followed an early decision of our High Court reported in (1890) ILR 13 Madras 269 (Krishna v. Chathappan) wherein it was held thus: —
“We think that Section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words ‘sufficient cause’ receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant.”
14. Reliance was also placed on the decision reported in (1977) 2 SCC 437 (Trimbak Gangadhar Telang and another v. Ramachandm Ganesh Bhide and others) wherein it has been held thus: —
“It is only when an order of a Tribunal is violative of the fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has crept in or where the order passed results in manifest injustice, that a Court can justifiably intervene under Article 227 of the Constitution.”
15. In AIR 1987 SC 1645 (Sukhbir Narain (Dead) By Lrs v. Deputy Director Of Consolidation.), their Lordships held thus: —
“… The High Court could not have interfered with this order under Art. 227 of the Constitution of India unless there was any error apparent on the face of the order. It has not been shown that the impugned orders manifest any such error which would warrant the exercise of the powers of the High Court under Article 227 of the Constitution of India…”
16. Learned counsel also relied on the decision of out High Court reported in 94 L.W 243 (E.K tenkai Marban v. Dakshinamurthy), in support of the contention mat the provision applies even to Rent Control Courts. Learned Counsel also brought to my notice me decision of K.A Swaini, C.J reported in 1993 TLNJ 169 (Raju v. Senior Officer), holding that the Rent Controller is a Court having power to condone delay under Sec. 5 of the Limitation Act.
17. As against the said contention of the respondent, learned counsel for petitioner submitted that on the lacts of this case, interference under Art. 227 of die Constitution is required. Admittedly, the respondent filed an application to set aside the ex parte decree in the year 1992, which was dismissed for default. Thereafter, as against the purchaser, die very same respondent filed an application under Sec. 5 of me Rent Control Act, which was also allowed. When notice of me Execution Petition was received by respondent, he has filed this application only for impleading me petitioner on certain allegations which have not been proved or substantiated. According to learned counsel, it is a case where a decision has been arrived at by die lower Court on no evidence and, therefore interference under Art. 227 of the Constitution of India is called for.
18. While extracting the lacts, I have already said that both parties did not adduce any evidence, and they were satisfied with the allegations made in the affidavits. The delay of nearly five years is explained by the respondent by stating that he met the petitioner herein who represented that he is not interested in evicting him, and, therefore, he did not take steps to serve notice on the petitioner. The same is specifically denied in the counter-affidavit. When it is denied, a duty is cast on the respondent to prove the same atleast by swearing to that effect. He did not care to do so. When there is no evidence on his side to support his case, can it be said that the order of die lower Court is legal? Is it not a finding without evidence? The lower court assumed on sequence of facts that the case pleaded by the respondent might be true. I do not think that the said assumptions have any place when me parties have a definite case, as stated in their affidavit and counter affidavit.
19. One big circumstances which was taken note of by the lower court is that the “Execution Petition was filed four years after the dismissal of the earlier restoration application”. I do not think that it is a circumstance which could be taken note of by die Court. The Execution Petition was filed not by the purchaser. The purchaser is not before Court, nor are the details of me Execution Petition available among the records. On what basis, Rent Controller took note of the Execution Petition, which is not among me records, is not explained. Apart from the same, the Rent Controller has commented on die maintainability of the Execution Petition which is alleged to have been filed by die purchaser. The respondent did not want the purchaser to be made a party to any of these proceedings and, therefore, he cannot rely on any action taken by the purchaser. That apart, die very same tenant has filed a Rent Control Petition under Sec. 8(5) of die Rent Control Act against die purchaser and got it allowed.
20. Admittedly die respondent filed an application as M.P 110 of 1992 to have the ex parte order of eviction set aside. That was taken cognizance of by die Rent Controller and notice was directed to be issued to die petitioner. The respondent failed to take steps. I have already said that the reason submitted by die respondent cannot be accepted. If that is not substantiated by any evidence, there is no ground to excuse the delay of more than four years.
21. Now I come to the decisions cited by learned counsel for respondent, which, according to me, go against his case. The decisions reported in 94 LW 243 and 1993 TLNJ 169 (supra) are relied on, to show that the Rent Controller has got power to condone the delay. I do not deny me correctness of those decisions. Here, die only question to be considered is, whether Art. 227 of the Constitution of India could be invoked or not. In AIR 1968 SC 222 (supra) their Lordships were very cautious while declaring the law under what circumstances the powers under Art. 227 could be invoked. In paragraphs 5 and 6, Their Lordships said that,
“The power of superintendence over tribunals vested in the High Court under Art. 227 of the Constitution is not greater than the power under Art. 226 and is limited to seeing that the Tribunal functions within the limits of its authority. The High Court will not review the discretion of the Authority judicially exercised, but it may interfere if the exercise of the discretion is capricious or perverse or ultra vires. The High Court may refuse to interfere under Art. 227 unless there is grave miscarriage of justice. The Court cannot interfere merely because it might take a different view of the facts and exercise the discretion differently.”
(Emphasis supplied)
I have already said that their Lordships have approved the decision of this Court reported in (1890) ILR 13 Mad. 269 (supra). In that decision also, this Court only held that Section 5 of the Limitation has to be liberally construed so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant. Their Lordships accepted me principle that interference under Art. 227 of the Constitution of India is necessary only when there is grave miscarriage of justice. In AIR 1985 SC 1645 (supra), their Lordships have held mat die power under Art. 227 of the Constitution of India could be invoked only when there is an error apparent on the face of the records. The decision reported in 1990 (2) MLJ 90 (Poosariar Ekambamm Pillai v. Visalakshi and others) is also to the same effect. In a very recent decision reported in 1997 (3) Supreme 673 (Achutananda Baidya v. Prafulla Kumar Gayen & others) their Lordships have considered as to what is meant by ‘perverse order’. Paragraphs 10 and 11 of the judgment (at page 676) are relevant in this context. They read thus: —
“The power of superintendence of the High Court under Article 227 of die Constitution is not confined to administrative superintendence only but such power includes wiuun its sweep die power of judicial review. The power and duty of the High Court under Article 227 is essentially to ensure that die Courts and Tribunals, inferior to High Court, have done what they were required to do. Law is well settled by various decisions of this Court that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving a finding which is perverse or based on no material, or resulting in manifest injustice. As regards finding of fact of the inferior Court, the High Court should not quash the judgment of the subordinate Court merely on the ground that its finding of fact was erroneous but it will be open to the High Court in exercise of the powers under Article 227 to interfere with the finding of fact if the subordinate Court came to the conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper exercise of jurisdiction or if its conclusions are perverse.
If the evidences on record in respect of a question of fact is not at all taken into consideration and without reference to such evidence, the finding of fact is arrived at by inferior Court or Tribunal, such finding must be held to be perverse and lacking in factual basis. In such circumstances, in exercise of the jurisdiction under Article 227, the High Court will be competent to quash such perverse finding of fact.”
Taking into consideration the above law, I only hold that when the reason for condonation is not proved by adducing any evidence, believing the case of the petitioner will amount to an order on no evidence. There are no circumstances which warrant die Court to believe the case of the respondent. Even though ‘sufficient cause’ mentioned in Section 5 of the Limitation Act requires a liberal construction, die discretion must be judicial discretion. The judicial discretion can only be on the basis of some materials. If mere are no materials to exercise the discretion, die order can only be treated as perverse, which enables die Court to invoke the powers under Art. 227 of the Constitution
22. There is a patent or flagrant error in the procedure adopted by die lower Court by assuming certain facts, which are specifically denied. When die petitioner specifically denies die allegations in die affidavit of die respondent, without proof, they cannot be relied on. They stand only as mere allegations. When an order is passed on no evidence, such order will cause manifest injustice.
23. I do not find any justification to sustain me order of the lower Court. Consequently me same is set aside. The Revision Petition is allowed. No costs. C.M.P 10967 of 1997 for stay is closed.
RR/VCS.