Suresh Kumar v. Managing Committee

HON. SHISHIR KUMAR, J.

Heard the learned counsel for the petitioner and the learned counsel appearing for the respondent.

This writ petition has been filed for quashing the order dated 16.11.2009 by which the application filed by the petitioner under Section 5 of the Indian Limitation Act to entertain the revision has been dismissed.

It appears that a suit for arrears of rent and ejectment was filed against the petitioner in the year 1994. The petitioner contested the suit after filing the written statement. One of the issues was framed regarding maintainability of the suit. The Judge Small Causes Court after considering the case of the parties has recorded a finding that some amount has been deposited by the petitioner as rent but being a Waqf property, Act No. XIII of 1972 is not applicable, therefore, the petitioner is not entitled to get the benefit of Section 20(4) of Act No. XIII of 1972. The said suit was decreed in the year 1999. The petitioner has not filed any revision. Then the plaintiff-respondent filed an execution case which was numbered as Execution Case No. 14 of 2000. Various objections were filed by the petitioner from time to time but the same were rejected in the execution proceedings and the petitioner was participating in the execution proceeding pending before the executing court. During the pendency of the execution proceeding the objections were raised and against that order revision was filed which too was dismissed. In the mean time it appears that petitioner was advised to file a revision in the month of November 2008 against the order dated 15.10.1999 after a lapse of 9 years with an application under Section 5 of the Indian Limitation Act. That was registered as Misc. Case No. 980 of 2008.

The respondent took objection that the revision is highly belated and as the petitioner is participating in the execution proceeding and has not filed the revision well within time, the revisional court vide its order dated 16.11.2009 has rejected the application filed under Section 5 of the Limitation Act holding therein that the revision is highly belated and no cogent reason has been explained.

Sri K.M Asthana learned counsel appearing for the petitioner has placed reliance upon a judgment rendered in the case of Aliyathammada Beethathabiyyapun Pookoya Haji v. Pattakki Cheriakoya reported in AIR 2003 Kerala 366, and has submitted that the suit itself was barred before the Civil Court in view of Section 85 of the Waqf Act 1995 which is being reproduced as under:

“85. Bar of jurisdiction of Civil Courts:- No suit or other legal proceeding shall lie in any Civil Court in respect of any dispute, question or other matter relating to any Waqf, Waqf Property or other matter which is required by or under this Act to be determined by a Tribunal.”

Further the petitioner has placed reliance upon a judgment of the Apex Court rendered in the cases of N. Balakrishnan v. M. Krishnamurthy. reported in (1998) 7 SCC 123 and RADHA KRISHNA RAI v. ALLAHABAD BANK reported in (2000) 9 SCC 733.

Placing reliance upon the aforesaid judgments, learned counsel for the petitioner submits that the 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 appeal is within certain limit. When the explanation is satisfactory in spite of the fact that the delay is long, it has to be condoned. Therefore, as the counsel has not advised the petitioner to file a revision, therefore, no revision was filed.

On the other hand learned counsel appearing for the respondents submitted that the execution proceeding is pending from 2000 and objections after objections are being filed thorough counsel and when the objections are rejected, two revisions were filed and that too have been dismissed. The petitioner is participating in the proceeding of execution through counsel and deliberately delaying the matter, therefore, it cannot be said that the petitioner was not having any knowledge that a revision has to be filed against an order dated 15.10.1999 The revisional court has considered the issue and has come to the conclusion that it can not be believed that petitioner was not having any knowledge that he was having any remedy of filing a revision or appeal against the orderdated 15.10.1999

I have considered the submissions made on behalf of the parties and have perused the record. The suit was decreed in the year 1999 holding therein that Act No. XIII of 1972 is not applicable. As regards the submission made by the petitioner that suit itself was not maintainable before the civil court cannot be accepted in view of plain reading of Section 85 of the Waqf Act which clearly states that no suit in respect of any dispute, question, or other matters relating to any waqf, waqf property or other matter, which is required by or under this Act has to be determined by the Tribunal. Admittedly it is not a dispute regarding the waqf property or dispute between the two Mutwallis. It is a simple dispute that whether the petitioner being a tenant is defaulter or not, therefore, the suit for arrears of rent and ejectment was maintainable before the Judge Small Causes Court.

As regards the question of condoning the delay, admittedly the petitioner was participating in the execution proceeding from 2000 through an advocate and various objections were raised but the same were rejected. Then the petitioner against those orders filed revision before the revisional court, that too has been dismissed. Therefore, in my opinion, it cannot be believed that the petitioner was not having any knowledge that he has a remedy of filing a revision against the order dated 15.10.1999 passed by the Judge Small Causes Court. The petitioner has not even disclosed the name of the particular counsel who had advised him not to file a revision. Further the revisional court while considering that he was participating in the executing proceeding and when he could not succeed in his objection, he filed a revision before revisional Court after a lapse of 9 years and no cogent reason has been explained, therefore, the story set up by the petitioner can not be expected that he was not advised to file the revision against the order dated 15.10.1999 As regards the judgment relied upon by the learned counsel for the petitioner of the Apex Court, that is not applicable in the facts of the present case and the petitioner cannot be benefited by the said judgment in view of the fact that in those cases there was a proper explanation and reasonings were disclosed by the person that there were unavoidable circumstances or he was not having knowledge that he has to approach the higher court. In such circumstances, there was a delay and in that circumstance, the Apex Court has condoned the delay. But in the present case, in my opinion, it cannot be held that the petitioner was not having any knowledge in spite of the fact that he was participating in the execution proceeding.

In view of the aforesaid fact, in my opinion, the finding recorded by the revisional court is a finding of fact based on evidence and cannot be interfered by this Court while exercising power under Article 226 of the Constitution of India.

The writ petition is hereby dismissed.

No order is passed as to costs.

At last the learned counsel appearing for the petitioner submits that some reasonable time may be granted to the him to vacate the said premises. Accordingly, six months' time is granted to the petitioner to vacate premises in dispute subject to condition that the petitioner will submit an affidavit in the shape of undertaking within three weeks from today before the Judge Small Causes Court specifically indicating therein that he will handover peaceful possession of said accommodation without inducting any third person within a period of six months and will pay the arrears of rent as well as current rent, then and in that condition, the Judge Small Causes Court will grant six months time to the petitioner to vacate the said premises.