Cases referred :

Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji, AIR 1987 SC 1353 [ 5 , 16 ]

N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123 [ 5 , 9 , 14 ]

Ajit Singh Thakur Singh Vs. State of Gujarat AIR 1981 SC 733 [ 5 , 19 ]

Mohd.Yunus Vs. Mohd. Mustaqim, AIR 1984 SC 38 [ 6 , 7 ]

Union of India Vs. Dhanwanti Devi, (1996) 6 SCC 44 [ 18 ]

Advocates appeared :

Shri M. S. USGAONKAR, Senior Advocate with Shri NITIN SARDESSAI, Advocate for the Petitioners.

Shri M. S. SONAK, Advocate for the Respondent No.1.

:- Rule. By consent rule made returnable forthwith.

2. These Petitions arise from the common Order passed on 25th January, 1999, by the Administrative Tribunal in Miscellaneous Application No. 36/98 and Miscellaneous Application No. 39/98 and involve common question of law and facts and, therefore, were heard and are being disposed of by this common Order.

3. The Petitioner challenges the impugned Order whereby the Tribunal has refused to condone the delay of 24 days in filing the Appeals against the Eviction Orders passed by the Additional Rent Controller-V, Mormugao in Rent Case Nos.BLDG/ARC-V/20/95 and BLDG/ARC-V/21/93. The proceedings were in relation to the two shops in a building called Teli Building situated at T. Menezes Braganza Road , Baina, Vasco- da-Gama and wherein the Petitioner is running business under the name and style of Mahavira Trading Company, in one shop and M/s. Metro Ceramics and Industries in another shop. By an Order dated 15th January, 1998 passed by the Respondent No.2, the Petitioner has been directed to hand over the possession of the suit premises to the landlord, the Respondent No.1 herein within sixty days from the date of the Order. The said Order was received by the Petitioner on 20th January, 1996. The Petitioner preferred appeals against the said Order but the same were filed 24 days beyond the period of limitation prescribed for filing of the Appeals.

4. It is the case of the Petitioner that he was served on 20th January, 1998 only with an operative part of the Order dated 15th January, 1998. At that time, the Petitioner was bed-ridden on account of Phalsipharum malaria. He was advised bed rest for a period of four weeks from 19th January, 1996 and, therefore, he could apply for Certified Copy of the said Order dated 15th January, 1998 only on 22nd February, 1998, when he could leave the house for the first time after recovery from the illness of malaria.

5. Shri M. S. Usgaonkar, learned Senior Advocate appearing for the Petitioner while assailing the Order submitted that the records do not disclose that the delay was deliberate or intentional, or that the Petitioner was to gain any benefit by resorting to delay in filing the Appeal. Considering the law laid down by the Apex Court in various matters relating to the condonation of delay, the Tribunal was expected to exhibit justice-oriented approach in the matter in hand which the Tribunal has not only failed to show but has adopted totally wrong approach while dealing with the application for condonation of delay filed by the Petitioner. There was no malafide attributable to the Petitioner for approaching late with the appeal. He sought to rely upon the decisions of the Apex Court in the matter of Collector, Land Acquisition, Anantnag and another vs. Mst.Katiji and others reported in AIR 1987 SC 1353, N. Balakrishnan vs. M. Krishnamurthy reported in (1998) 7 SCC 123 and Ajit Singh Thakur Singh and another vs. State of Gujarat reported in AIR 1981 SC 733 besides Single Judge of Kerala in the matter of Xavier vs. Canara Bank Ltd, reported in K.L.T. 927.

6. On the other hand, Shri M. S. Sonak, learned Advocate appearing for the Respondent No.1 submitted that no interference of this Court in its supervisory jurisdiction can be sought for even assuming that the Tribunal has given a wrong decision. It is not permissible for the Petitioner to invoke the supervisory jurisdiction of this Court under Article 227 of the Constitution of India to review or reassess the materials, upon which the Tribunal has determined the matter in issue in one way or the other. He sought to rely upon the decision of the Apex Court in the matter of Mohd . Yunus vs. Mohd, Mustaqim and others reported in AIR 1984 SC 38. He further submitted that the conduct of the Petitioner clearly smacks of malafide and it is apparent from the false statement made by the Petitioner while seeking for indulgence of the Tribunal for condonation of delay. Drawing the attention to the application for condonation of delay before the Tribunal, the learned Advocate submitted that the case put forth by the Petitioner of sickness and his confinement to the house from 19th January, 1998 to 22nd February, 1998 was proved to be false by the Respondent No.1 by producing photographs of the Petitioner supervising construction work during the said period. If the Petitioner was bed-ridden and confined to the house, he could not have been able to supervise the construction work in the suit premises.

7. There is no doubt that the jurisdiction of this Court in exercise of its powers under Article 227 of the Constitution of India is limited to seeing that the inferior Courts and Tribunals function within the limit. of their authority. It does not extend to correct the error on the face of record much less error of law. The JUDGMENT of the Apex Court in the matter of Mohd . Yunus vs. Mohd. Mustaqim and others (supra) is clear on this aspect. The Apex Court therein has clearly observed that :-

The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited to seeing that an inferior Court or Tribunal functions within the limits of its authority and not to correct an error on the face of the record much less an error of law ............................... In exercising the supervisory power under Article 227 the High Court does not act as an Appellate Court or Tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.

8. Bearing in mind the law laid down by the Apex Court regarding the limited jurisdiction of the High Court in a matter under Article 227 of the Constitution of India, the perusal of the Impugned Order of the Tribunal discloses that the Tribunal after detailed analysis of the materials placed on record has arrived at a finding that the Petitioner has not been able to show sufficient cause for condonation of delay. Indeed, the impugned Order clearly reads thus:-

The Appellant claims that he had suffered an acute attack of Phalsipharum malaria on 15-1-1998. The Respondent has denied that the Appellant was suffering from Phalsipharum malaria. The Appellant has not produced any other documentary evidence in support of his case that he was suffering from Phalsipharum malaria except the said certificate dated 18-1-1998. There can be no second opinion that Phalsipharum malaria can be detected only after the blood of the patient is tested. The Appellant did not choose to produce the blood test report inspite of the fact that the Respondent consistently insisted that the Appellant should produce the blood test report to show that he was suffering from Phalsipharum malaria. Nothing should have prevented the appellant from producing the blood test report to show his bonafides. The Appellant has also not produced any prescription from the doctor to show that he has taken medicines for treatment of Phalsipharum malaria,

.......................................... It is the case of the Respondent that the Appellant was not at all sick and that he was personally supervising the work of alteration of the suit premises during the relevant time. In fact, the Respondent has produced photographs to indicate that the Appellant was in fact supervising the work of alteration of the premises. From the photographs produced by the Respondent, it is clear that the Appellant was present on the site at the time of work of alteration of the suit premises was going on. Therefore, it appears to my mind that the Appellant has made a false statement that he was bedridden from 15-1-1998 to 23-2-1998 .

It is therefore, clear that the Tribunal has found on analysis of the materials on record that there was no sufficient cause shown for condonation of delay. The impugned Order on the face of it discloses that the findings arrived at are borne out from the record. The impugned Order clearly discloses the reasons for arriving at the findings contained therein. It is apparent that the Tribunal has exercised its discretion judiciously and there cannot be any complaint of failure to exercise jurisdiction by the Tribunal while rejecting the application for condonation of delay.

9. Moreover, Shri M.S. Usgaonkar, learned Senior Advocate appearing for the Petitioner has drawn the attention to the decision of the Apex Court in the matter of N. Balakrishnan vs. M. Krishnamurthy (supra) wherein it has been held that when the first Court refuses to condone the delay, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammelled by the conclusion of the lower Court. Without addressing to the controversy whether the said observation of the Apex Court in the matter of N. Balakrishnan vs. M. Krishnamurthy would entitle the High Court in exercise of supervisory powers to reassess the evidence or not, and even going through the entire records it cannot be said that the Tribunal has acted with material irregularity or has exercised its jurisdiction illegally in refusing to grant the condonation of delay or has failed to exercise its jurisdiction in any manner and the findings arrived at cannot be said to be perverse or not borne out from the record.

10. Indeed, the only ground on which the application for condonation of delay was filed was that of sickness and confinement of the Petitioner to his house from 19th January, 1998 to 2nd February, 1998. The contents of the said application before the Tribunal clearly read that the Petitioner had an acute attack of Phalsipharum malaria on 15th January, 1998 and was ordered complete bed rest for four weeks and, therefore, the Petitioner remained in bed till 23rd February, 1998. On 24th February, 1998, the Petitioner for the first time set out of his house and applied for certified copy of the impugned Order dated 13th January, 1998 in Case No.20/95. The said application was accompanied by a Medical Certificate issued by Dr. Vinay M. Surlacar of Baina , Vasco- da-Gama. The said certificate reads thus:-

Date 18-1-1998 This is to certify that Shri Lalitkumar Jain is suffering from acute attack of PHALSIPARUM MALARIA and is under my treatment from 15-1-1998 onwards. Now I advise him strict bed rest From 19-1-1998 for at least a period of four weeks from today onwards till he gets completely recovered from the above disease.

Sd /-

Dr. Vinay M. Surlacar

11. The claim of sickness of the Petitioner was seriously disputed and denied by Respondent No.1 and the Petitioner was in fact accused of making false statement on oath. It was clearly alleged in the reply of the Respondent No.1 that the Petitioner had deliberately made a false statement on oath to justify the delay in filing the Appeal. It was further stated that during the second fortnight of January, 1998 beginning from 16th January, 1998, the Petitioner started carrying out certain alterations in the suit premises. The Respondent, therefore, by registered letter dated 17th January, 1998 called upon the Petitioner to stop such work. The said letter was received by the Petitioner on 23rd January, 1998 at the suit premises. Despite said letter, the Petitioner continued with the work of alterations. Hence, the Respondent caused the said work of alteration of the suit premises photographed on 21st January, 1998. It was further stated that the Petitioner was personally supervising the said work and that the same was apparent from the photographs produced with the reply. It was further stated that one of the photograph shows the open shops with blue maruti car of the Petitioner on the road. The other photograph shows the work being supervised by the Petitioner personally. The third photograph shows the Petitioner supervising the work by standing at extreme right with hand on waist. While clicking the aforesaid photographs the Respondent had held a newspaper i.e. The Gomantak Times to establish the date of clicking of photos which copy of newspaper was also produced with the reply.

12. In fact, while challenging the claim of sickness of the Petitioner and accusing him of making false statement, the Respondent No.1 had called upon the Petitioner to produce the reports of the blood tests. The insistence for production of report of blood test was naturally on account of the fact that the Petitioner had claimed, that he was suffering from Phalsipharum malaria. The relevant averments in that regard, are found, in para 4 of the reply of the Respondent No.1 and the same read as under:-

The Appellant has approached this tribunal with unclean hands by deliberately and knowingly making a false statement on oath that he was bed-ridden from 15-01-1998 to 23-02-1998. The Appellant should, therefore, be directed to produce his reports of blood investigation.

13. It is to be noted that there was no counter filed by the Petitioner to the reply of the Respondent No.1. In fact, as already seen above, the reply of Respondent No.1 was accompanied by photographs showing the persons of the Petitioner at the construction site. The photographs clearly depict the presence of the Petitioner at the construction site on 21st January, 1998 , the day on which the Petitioner claims to have been bed-ridden and confined to the house. In fact, the case of the Petitioner is that he came out of his house for the first time after his sickness only on 24th February, 1998. In view of the material placed on record by the Respondent No.1 showing the presence of the Petitioner at the construction site on 21st January, 1998 which day included the period during which the Petitioner claims that he was suffering from Phalsipharum malaria and was bed-ridden and confined to the house and the failure on the part of the Petitioner to produce the blood test reports, it is difficult to believe that the Petitioner was really sick suffering from Phalsipharum malaria and that even if he was sick, that he was confined to the house till 23rd February, 1998. Being so, the explanation for condonation of delay cannot be said to be bonafide and on the contrary, certainly smacks of malafides.

14. In N. Balakrishnan vs M. Krishnamurthy (supra) the Apex Court was dealing with the matter wherein a suit for declaration of title and ancillary reliefs was decreed ex- parte on 28th October, 1991. The Defendant therein having learnt about the Decree, filed an application to set aside the same which was dismissed for default on 17th February, 1993. He then moved an application on 19th August, 1995 for setting aside the order of dismissal for default along with an application for condonation of delay of 883 days. His explanation was that he had engaged an Advocate for making the motion to set aside the ex- parte Decree but the Advocate failed to take proper steps in time in the matter and also did not inform anything to the Applicant. He also came to know that the Advocate engaged by him had already left the profession. The Trial Court while accepting the said explanation condoned the delay but the learned Single Judge of the High Court of Madras in his revisional jurisdiction expressing the view that the delay of 883 days was not explained properly set aside the order of the Trial Court condoning the delay in the matter. The Apex Court in the facts of that case observed thus:-

It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation. While condoning the delay, the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when the Courts condone the delay due to laches on the part of the applicant, the Court shall compensate the opposite party for his loss.

While dealing with the scope of Section 5 of the Limitation Act, the Apex Court therein observed thus :-

It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory.

15. As already seen above, the explanation of the Petitioner in the case in hand clearly smacks of malafides. The categorical claim of the Petitioner that he remained in bed and confined to the house till 23rd February, 1998 and for the first time came out of his house on 24th February, 1998 has been clearly proved to be false from the photographs produced on record by the Respondent No.1 as also from other materials on record. Undisputedly, the claim of the Petitioner was that he was suffering from Phalsipharum malaria. It is well established that whether the person is suffering from Phalsipharum malaria, can be established only from blood tests of such person. It cannot be presumed that the Petitioner was diagnosed of being suffering from Phalsipharum malaria without the blood tests having been carried out. That being the best evidence to prove the claim of the Petitioner and the same having not been produced inspite of being called upon by the Respondent No.1 and such a proof having not been produced even in this Court along with Writ Petition or in the course of the hearing, it is abundantly established that the explanation is patently false and cannot be believed.

16. In Collector Land Acquisition, Anantnag and another vs Mst. Katiji and others (supra) the Apex Court was dealing with a matter wherein an appeal preferred by the State of Jammu and Kashmir arising out of a decision enhancing compensation in respect of acquisition of lands for a public purpose to an extent of 14 lakhs rupees by making an upward revision of the order of 800% (from Rs.1000/- per kanal to Rs.8000/- per kanal ), which also raised important questions as regards principles of valuation was dismissed as time barred by four days. In that regard, it was observed that ordinarily a litigant does not stand to benefit by lodging an appeal late and refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. The Apex Court also observed that 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. Moreover, the decision is of no help in the case in hand wherein records exhibit culpable negligence and malafides in abundance on the part of the Petitioner a it is also to be noted that the said decision was given in a peculiar facts and circumstances of that case wherein the delay was hardly of four days and the matter involved important questions regarding principles of valuation and the applicant therein was the State.

17. The learned Single Judge of the Kerala High Court in the matter of Xavier v. Canara Bank Ltd. (supra) was dealing with a matter relating to the scope of Section 59 of Civil Procedure Code and in a case wherein admittedly the judgment-debtor was not bed-ridden but was attending some of his clients during the sickness. The Courts proceeded on the footing that if a man was not bed-ridden, it cannot be said that his illness was not sufficiently serious. All the observations therein were while dealing with the scope of Section 59 of Civil Procedure Code which deals with the powers of the Court to cancel the warrant, inhibition on arrest of judgment-debtor or to release the judgment-debtor from the civil prison during the illness of the judgment-debtor. It was in that regard, the Single Judge of the Kerala High Court has held that it must not be lost sight to the concrete facts of a particular case and the beneficent of provision of section 59 should be construed in a liberal and not in a narrow way. The JUDGMENT has absolutely no assistance to decide the case in hand.

18. At this stage, one is certainly reminded of the JUDGMENT of the Apex Court in the matter of Union of India and others vs. Dhanwanti Devi and others reported in (1996) 6 SCC 44 wherein the Apex Court has held thus:-

Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law.

19. The decision in -the matter of Ajit Singh Thakur Singh and another vs. State of Gujarat (supra) rather than assisting the Petitioner justifies the impugned Order against the Petitioner. The Apex Court therein has held that it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows the limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There must be events or circumstances subsequent to the expiry of limitation which must further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. It was a decision on the point whether the party seeking indulgence of the Court for condonation of delay has to show sufficient cause for delay beyond the period of limitation prescribed or has to justify his inaction during the period of limitation also, and if so in what circumstances.

20. Much stress was laid upon the Medical Certificate issued by the doctor in favour of the Petitioner regarding his sickness. In the normal circumstances, certainly a Medical Certificate is of great assistance to establish the factum of sickness. However, it was the case of the Petitioner that he was suffering from Phalsipharum malaria. As already observed above, it is now well established that the blood tests is the sure test regarding the diagnosis of Phalsipharum malaria. In the circumstances, therefore, it was necessary for the Petitioner himself to produce the record pertaining to his blood tests which disclosed Phalsipharum malaria Not only that, he did not produce such blood tests report along with the application for condonation of delay, but he did not produce the same either before the Tribunal or before this Court. In the background of these facts, no credence can be given to the Medical Certificate.

21. It is, therefore, apparent on the face of record that there was no sufficient cause disclosed by the Petitioner for condonation of delay. Being so, no fault can be found with the findings of the Tribunal that it was satisfied that the Petitioner had failed to show sufficient cause for delay in filing the Appeals.

22. In the result, therefore, the Petitions fail and the same are hereby dismissed. Rule is discharged. The Petitioner to pay costs of Rs.1000/- in each of the Petitions to the Respondent No.1. Interim relief stands vacated.

23. At this stage, the learned Advocate Shri N. Sardessai for the Petitioner requests for continuation of the interim relief granted on 12th February, 1999 for a period of next two weeks. Shri M. S. Sonak, learned Advocate for the Respondent No.1. on taking instruction from the Respondent No. 1 who is present in the Court submits that the Respondents will not execute the Order of the Rent Controller for a period of next two weeks. In view of the submission on the part of the learned Advocate for the Respondent No.1. no order as prayed for by the Petitioner is called.

Petition dismissed.