IN THE HIGH COURT OF JHARKHAND AT RANCHI WPC No. 7296 of 2011 [ENTITY] Petitioner(s) Versus [ENTITY] . Respondent(s). CORAM: HON'BLE MR. JUSTICE P.P.BHATT For the petitioner(s) : M/s [ENTITY], [ENTITY], Adv. For the respondent(s) : M/s Badri [ENTITY], [ENTITY], [ENTITY]. Order No.12 Dated 24th July 2012 Heard the learned counsel for the parties. 2. The present petition has been filed under [SECTION] of the [ACT] for quashing and setting aside the order dated 21.5.2011 (Annexure-5) passed by the learned Subordinate Judge VI, Dhanbad in [CASE NUMBER] whereby, the learned trial Court has passed and order under [SECTION] of the [ACT] (hereinafter referred as the Act for the purpose) for striking off the defence of the petitioner and also for quashing the order dated 12.9.2011 (Annexure-7) whereby the prayer of the petitioner for recalling the order dated 21.5.2011 has been rejected. 3. Short fact of the case is that a [CASE NUMBER] was filed by the Respondent/Plaintiff for eviction of the Petitioner/Defendant. In the said suit an application U/[SECTION] of the [ACT] was filed by the Respondent/Plaintiff and the same was allowed by the Additional Munisff IInd, Dhanbad and the petitioner was directed to deposit the arrear of rent @ 150 per month from August 2001 to January 2006 within 15 days and further directed to deposit current rent @ Rs. 150 per month by 15th day of next following month. Against the order passed by the Additional Munsiff IInd, Dhanbad the petitioner preferred a Writ application being [CASE NUMBER] before this Hon'ble Court and the same was disposed of with a direction to deposit the rent from August 2001 till August 2010 @ Rs. 150 per month by 30th September, 2010 and from September onwards, by 15th day of succeeding month, failing which his defence against ejectment shall stand struck off. The plaintiff respondent filed an application u/[SECTION] of the Act for striking off the defence on the ground that the petitioner has violated the order passed by this Hon'ble Court in [CASE NUMBER]. The prayer of the plaintiff respondent was allowed in terms of order dated 21-05-2001. Thereafter the petitioner prayed for recalling of the order but the learned court below rejected the prayer vides order dated 12-09-2011. 4. Learned counsel for the petitioner by referring Annexure-6 i.e. by referring the Calendar for the year 2010 it is submitted that the Court was closed due to Dipawali holidays from 05th November, 2010 to 17 November 2010 and it was open on 18th November, 2010 and the rent was deposited on the very opening day i.e. on 18.11.2010 and therefore, it cannot be said that there was willful default on the part of the petitioner -2- in making the payment of rent. Learned counsel for the petitioner has also referred to and relied upon the definition of the Court prescribed under [SECTION] of the [ACT] and submitted that the court means the court having jurisdiction under the [ACT] for the purpose of this Act. According to the learned counsel for the petitioner the rent could not be deposited as there was Dipawali Holidays in the court below and on the very opening day, the rent was deposited by the petitioner. However, the Court below has not properly considered this aspect. Learned counsel for the petitioner has also referred to and relied upon [SECTION] of the [ACT] and also [SECTION] of the [ACT] for the purpose of computation of time and submitted that in view of the aforesaid provisions, the amount deposited by the petitioner on reopening of the court's holidays and the same is required to be treated as the same is deposited well within time and it cannot be considered as breach of the period in view of the aforesaid two provisions. Learned counsel for the petitioner has submitted that the court below while disposing of the petition has not appreciated this fact though it was raised before the court at the time of making the submission and therefore, according to the learned counsel for the petitioner, the court below has committed an error while passing the order impugned. Learned counsel for the petitioner in support of his case has referred to and relied upon the following judgments:- [PRECEDENT] 5. As against that, learned counsel for the respondent while justifying the order passed by the court below submitted that the court below has not committed any error while passing the said order and the court below has passed the said order after careful consideration and the submissions made by the learned counsel for the parties and said that the order was passed by the court below in accordance with the provisions of law. It is further submitted that the present petitioner was required to deposit the rent @ Rs. 150/- per month by or before 15th day of every month in view of order dated 25.8.2010 passed in [CASE NUMBER]. It is further submitted that the submission made by the present petitioner that the court was closed due to Dipawali Holidays is not correct and the Registry of the court was open during Dipawali Holidays and therefore, it was possible for the petitioner to deposit the rent on or before 15th Nov. 2010 but the present petitioner has not deposited the rent which was due on 15th November, 2010 therefore, the default committed by the present petitioner may be treated to be willful. Learned counsel for the respondent has further submitted that the rent was enhanced from Rs. 150 to Rs.1000 per month by the House Rent Controller and therefore the petitioner was also required to deposit the revised rent before the court below within stipulated time but the petitioner has not -3- complied the said order also. Learned counsel for the respondent has referred to and relied upon the following decisions:- [PRECEDENT] 6. Considering the aforesaid rival submissions of the learned counsel for the parties and from perusal of the material facts on record more particularly the order impugned, it appears that the present petitioner was required to deposit the rent @ 150 per month as per the order passed by this Court on 25.8.2010 in [CASE NUMBER]. The relevant extract of the order reads as under; "Accordingly, petitioner is directed to deposit the rent from August 2001 till August, 2010 @ Rs. 150/- per month by 30th September, 2010 and from September onwards, by 15th day of succeeding month, failing which his defence against ejectment shall stand struck off." From perusal of [SECTION] and [SECTION], it appears that the petitioner has deposited the rent @ Rs. 150 per month regularly up to September, 2010. So far as rent of October, 2010 is concerned, it was deposited on 18.11.2010 and the copy of the Challan has been produced vide Annexure-4, thus it appears that there was a default in making the payment on or before 15.11.2010 and there was a delay about three days in depositing the said amount. Now the question arise as to whether the said default can be treated as willful default and as to whether the court below has consider this aspect in its proper prospective while analyzing the fact. I find substance in the submission made by the learned counsel for the petitioner, which is supported by Annexure- 6 & 7, which indicates that because of Dipawali Holidays, the courts were closed from Nov. 5 to Nov. 17 and the rent was deposited on 18.11.2010 meaning thereby, on the first opening day of the Court. For better appreciation the following relevant provisions are quoted hereinbelow:- i). As per the provision contained in [SECTION] of the [ACT] the court has been defined as follows:- "Court" means the Court having jurisdiction under the [ACT] to entertain a suit by a landlord against a tenant for recovery of possession of a building in respect of which a suit or application is filed under this Act." ii). [SECTION] of the [ACT] below herein:- " Sec.- 10. Computation of time.- (1) Where, by any [Central Act] or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the [ACT], applies. (2) This section applies also to all [Central acts] and -4- Regulation made on or after the fourteenth day of January, 1887." iii). [SECTION] of the [ACT] quoted below herein:- "[SECTION]. Expiry of prescribed period when court is closed - where the prescribed period for any suit , appeal or application expiry on a day when the court is closed, the suit , appeal or application may be instituted, preferred or made on the day when the court reopens . Explanation - A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day." In the case of [PRECEDENT] similar issue came for consideration before Kerala High Court. Para 8 of the said judgment reads as follows:- "8. The copying section of the civil court during midsummer vacation will be able to entertain and process only ordinary copy applications. From the point of view of the ordinary people like the petitioner, it will not be easy to apply for and obtain certified copies of judgments in cases to which he is not a party without the assistance of a lawyer. Getting the services of a lawyer of the [ENTITY] subordinate Judge s Court during midsummer vacation will be difficult. Obtaining certified copy of the judgment during midsummer vacation on the basis of an ordinary copy application will require surveillance by the applicant on more days than one. The Allahabad High court decided way back in 1912 in [PRECEDENT] that notwithstanding that the copying department of the civil court was kept open for some days during vacation the applicant was entitled to the benefit of the whole period of vacation even if the party applied for copy during vacation and the copy was made ready by the copying section during the vacation. Following the above decision of the Allahabad High Court a learned Single Judge of this court in [ENTITY] v. Devassia (1985 K.L.T. 701) also held that when a copy of the judgment is ready for delivery during the vacation of the court it can be taken delivery of on the date when the court reopens after vacation without losing time, for computation of the period of limitation for filing appeal, revision etc. The court also clarified that if actually the copy is received during vacation, time will start running from that date. In my view, the judgment of the Allahabad High court as well as this Court give support to the view that from the point of view of a litigant the copying section though not closed for vacation can be treated as remaining closed for practical purposes. The learned Judge ([ENTITY], J.) who decide [ENTITY] s case (supra) rightly noticed [SECTION] of the Civil rules of practice which says that list of copies ready for delivery shall be posted on the notice board of the section and shall remain there for three clear days other than holidays and found that the party has the option to treat court holidays as holidays for the section also even if the section was actually working during the court holidays. There is another trite principle that when two views are possible on the question of limitation, that view which brings the proceeding within the period of limitation should be preferred. After all, the legislative objective underlying [SECTION] is to give equal treatment to inarticulate land owners who had not applied for reference under [SECTION]. [PRECEDENT] (supra) was a case -5- where the claimant applied after years unlike the instant case where the claimant applied for copy of the judgment, which was delivered on the closing date, on the very reopening date." Thus in view of the above referred various provision of law as well as from the reason assigned in the above case law, this court is of the view that in the present case also the party has the option to treat court holidays as holidays for section or the registry also even if the Section was actually working during the court holidays. Moreover, when two views are possible on the question of limitation, the view which brings the proceedings within the period of limitation should be preferred. Accordingly, in the preset case for the purpose of considering the period of limitation, court shall be deemed to be closed during Depawali Holidays for the purpose of computing period of limitation. Moreover the provision contained u/[SECTION] of the [ACT] is directory and not mandatory and if sufficient cause is shown by the defendant tenant then court may extend the time and accept the deposit of rent by condoning delay. The another important facts which requires consideration is the past conduct of the present petitioner. It appears from the record, that the present petitioner has not committed any default/breach in depositing the rent. [SECTION] and [SECTION] clearly indicate that the present petitioner has deposited rent @ Rs. 150 per month regularly before the court below on or before prescribed date of each month. 7. I have perused the judgments cited by the Learned Counsel for the petitioner. In case of [PRECEDENT] the Hon'ble Apex Court held as follows:- "8. Therefore, the interest of justice which is the paramount justification of the administration of justice with the purpose of the Act, compels us to hold that if the delay is explained then there is no delay and the court In such a case cannot strike off the defence. It on the other hand, the delay is not explained or the explanation is one which is not acceptable to the court, then the court must strike out the defence and there is no discretion. " It is also held in [PRECEDENT] In case of [PRECEDENT] the Hon'ble High Court held as follows:- "4. It is well settled that the provisions of [SECTION] of the [ACT] is directory and not mandatory. If sufficient cause is shown by the defendant-tenant then Court may extend the time and accept the deposit of rent by condoning the delay." In case of [PRECEDENT] the Hon'ble Apex Court held as follows:- "4. On February 25, 2000 when this matter came up for hearing before us, we directed that the appellant shall deposit the said amount within a period of one week from the date of the order. The said amount was deposited on March 2, 2000. In the circumstances -6- when the appellant was not in a position to perform the direction given by the Court in view of the holidays, the Court cannot expect the appellant to perform what is impossible. Further, when a period of time has been granted to a party to fulfil a condition, until expiration of that period, it cannot be said as to why a particular act has not been done before that time. The order passed in such matters are made in terrorem to fulfil conditions. In the circumstance we think it is appropriate to set aside the order made by the High Court affirming the order of the Trial Court and direct that the amount deposited by the appellant be treated to have been made in pursuance of the decree made by the Trial Court originally. On other aspects. we express no opinion. The appeal is allowed accordingly." 8. in view of the above , it is very difficult to accept the argument canvased by the learned counsel for the respondent that the petitioner has committed wilful default in making the payment as Annexure-4 clearly indicates that the requisite amount was deposited on the very opening date of the court i.e. on 18.11.2010. I have also perused the judgment refer to and relied upon by the Leaned Counsel for the respondent reported in [PRECEDENT] which are mainly on the point/issue that time schedule prescribe under law or by any order is required to follow in a strict manner and the same can not be relax in absence of any valid reason/justification given by the party who commit such default. Moreover, there should be an application seeking condonation of delay. In the present case, the provision contained under [SECTION] of the [ACT] is not a mandatory in nature. Moreover, in reply to the application submitted by the respondent, the petitioner has given the justification for delay. Therefore in view of the facts & circumstances discussed above they doesn't help to the respondents case. 9. In view above discussion, this Court is of the view that the order passed by the Court below whereby the defence of the petitioner has been struck off under [SECTION] of the [ACT]. deserved to be set aside. Accordingly the impugned orders dated 21.5.2011
and 12.9.2011 passed by the Court below is set aside. This petition is allowed accordingly.
[ENTITY] /- ([ENTITY], J.)