- (1.) BY this petition under articles 226 and 227 of Constitution of India, the petitioner/tenant challenges the order dated 14-6-2004 whereby the Additional collector and appellate authority under C. P. and Berar Letting of Houses and Rent Control order, 1949, has refused to condone delay in filing an appeal under clauses 21 (2) of Rent control Order, challenging the order dated 4-4-1998 passed by Rent Controller, Nagpur, rejecting the application for setting aside ex parte order moved by petitioner. The said ex parte order has been passed by Rent controller on 14-10-1996 in favour of present petitioner/landlord.
(2.) THE case of the petitioner/tenant is in brief, as under: he wanted to challenge the order dated 4-4-1998 passed by Rent Controller rejecting the application for setting aside ex parte order moved by him before it. The Rent controller had passed ex parte order on 14-10-1996 in Revenue Case No. 2778/a-71 (2)/ 94-95 in favour of respondent/landlord and granted permission to terminate the tenancy of petitioner/tenant under clause 13 (3) (ii) and (iv) of the Rent Control Order. The petitioner/ tenant got knowledge of this ex parte proceedings when he received a notice in 2nd week of December, 1996 from one Advocate pathak. After receipt of that notice, he filed revenue Case No. 177/a-71 (2)/96-97 for setting aside the ex parte order. But learned rent Controller on 4-4-1998 refused to set aside that ex parte order. According to him, learned Rent Controller did not consider the fact that on account of bona fide reasons, he could not remain present in original proceedings and he ought to have given opportunity to lead evidence to examine postman so as to enable him to show that he never refused to receive any envelope sent by post to him and to demonstrate that endorsement "not claimed" on postal envelope was manipulated one. He contends that he had several other grounds to challenge the said order of Rent Controller dated 4-4-1998. He states that he ought to have filed the appeal within fifteen days, but he was unwell from 3rd April, 1998 to 24th April, 1998 and, therefore, could not contact his counsel. He states that immediately after getting well, he moved an application for certified copy on 24-4-1998 and received it on 27-8-1998. But again he was unwell on account of maleria between 28-8-1998 to 3-9-1998 and he contacted his counsel on 3-9-1998 and instructed him to prefer an appeal, and accordingly the appeal came to be filed on 5th of September, 1998 with an application for condonation of delay was there as delay of about four months. The learned counsel for the petitioner further points out that the appellate authority was concerned with the delay in challenging the order dated 4-4-1998 and the impugned order refusing to condone the delay passed on 14-6-2004 shows total non-application of mind and is liable to be quashed and set aside.
(3.) AS against this, Mr. Shrivastava, learned Counsel appearing for respondent/ landlord contends that the petition is without any merit. He points out that the petitioner is tenant of shop block and is habitual defaulter. He points out that he was required to recover the rent by filing suits and thereafter by taking out warrants for attachment of movable properties. He states that the petitioner/ landlord deliberately permitted the proceedings before the rent Controller to proceed ex parte and then deliberately filed the proceedings for setting aside said ex parte permission. He states that the tenancy of the petitioner is already terminated as per the notice dated 2nd december, 1996 and thereafter the landlord filed civil suit no. 26/1996 before the Small causes Court, Nagpur for his rejection, possession, and inquiry into mesne profits. The said suit came to be decreed on 30th november, 1999 and petitioner/tenant has been directed to deliver vacant possession. He further states that against this judgment and decree the petitioner has filed Regular civil Appeal No. 59/2000 before the District judge, Nagpur and that appeal came to be dismissed as per the judgment and decree dated 11-12-2001. He further states that petitioner/tenant thereafter filed CRA No. 541/2002 in the High Court and the said CRA is also dismissed on 12-4-2004. He states that thus in so far as decree for ejection of petitioner/tenant from the suit premises is concerned, it has attained finality. He states that he has initiated execution proceedings, vide Special Darkhast No. 137/2003 for recovery of possession and those proceedings are still going on. The learned Counsel points out that on 27-1-1997 the petitioner filed application for setting aside the ex parte order dated 14-10-1996 and those proceedings have been filed 5 months after the date of ex parte order i. e. 29-8-1996 and after more than three months of the ex parte permission which is granted on 14-10-1996. He further states that no application seeking condonation of delay was filed by the petitioner/tenant. He contends that there is absolutely no explanation for condonation of delay and in spite of this the application was considered on merits by the learned Rent Controller and the Rent controller rejected it on 4-4-1998. He has denied that the petitioner fell sick on 3-4-1998 or again fell sick between 28-8-1998 till 3-9-1998. He contends that it is strange on the part of the petitioner that he is falling sick just a day before such important events and all this, according to him, shows that petitioner has fabricated a false story. He further states that petitioner was given date as 5-5-1998 to collect the certified copy, but he has collected certified copy on 27-8-1998 and there is absolutely no explanation for the period spent between 5-5-1998 to 27-8-1998. He, therefore, contends that in the facts and circumstances of the case, the order passed by the appellate authority is just and proper and calls for no interference.;