IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision Petition No. 186 of 2008. Date of decision: 24.12. 2009 Messers Ram Krishan and Sons …..Petitioner Versus State of H.P. and another ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Petitioner: Mr. Ajay Kumar, Advocate. For the respondents : Mr. Vikas Rathore, Dy. Advocate General. Surinder Singh, J (Oral) Petitioner-landlord has directed this Revision petition under Section 24 of the Himachal Pradesh Urban Rent Control Act, 1987, against the order dated 2.8.2008, passed by the learned Appellate Authority (II), Shimla, in case No. 156- S/6 of 2008, titled State of H.P. versus Ram Krishan and sons, whereby the learned Appellate Authority allowed the application under Section 5 of the 1 Whether the reporters of Local Papers may be allowed to see the judgment ? yes - 2 - Limitation Act, moved by the respondent- tenants. 2. Facts, shorn of all unnecessary details, can be stated thus. Learned Rent Controller on the petition filed by the petitioner-landlord against the respondents, with respect to the tenanted premises in first floor of “Bantony Estate”, passed the order of eviction on 22.6.2007. Respondents-tenants did not file any appeal against that order within limitation. However, they filed the appeal on 31st May 2008, with an application under Section 5 of the Limitation Act for condoning the delay in filling the appeal, on the ground that the factum of passing the eviction order dated 22.6.2007 came to the notice of the tenants (Regional Employment Officer, Employment Exchange, the Mall Shimla) on 24.4.2008 when a process issued by the learned Rent Controller was received. On enquiry from the Assistant District Attorney, it came to light that he could not apply for the copy of the order within time for the reason that he had directed the concerned Naib Court/Clerk of his - 3 - office to apply for the copy of the order dated 22.6.2007 itself as no official from the tenant-Department was present there. Since he was under the impression that needful had been done and he remained busy with the official work. The file of the concerned case got intermingled with the other civil files. Thereafter it did not come into his notice whether the copy of the order was applied for and obtained by the concerned Clerk or not. On receiving the notice by the tenant from the learned Rent Controller, Assistant District Attorney was contacted and in turn, he contacted his Naib Court/Clerk and verified from the office about the receipt of the copy of the order. It was then it came to his notice that there has been a lapse on the part of his office. Thereafter, copy of order was applied on 17.5.2008, which was received on 19.5.2008 and a proposal to file the appeal was sent to the respondent Department. After doing the needful at the various levels and after seeking the permission to file the appeal, the appeal was filed. In support of the contention raised by the tenant, an - 4 - affidavit of Shri Atma Ram, Assistant District Attorney was also filed. 3. The landlord-petitioners resisted and contested the application and in their reply, questioned the maintainability of the application and contented that the grounds for condoning the delay were false. The concerned authorities were well aware of the eviction order passed by the learned Rent Controller. The application did not disclose sufficient and good reason for condoning the delay. 4. After considering the rival contentions of the parties, learned Appellate Authority allowed the application, which has been assailed in this revision on the grounds that the contentions raised by the landlord were not considered and appreciated by the learned Appellate Authority and the judgment relied upon for condoning the delay was not applicable in the facts and circumstances of the case. 5. I have heard the learned counsel for the parties and have perused the record. - 5 - 6. As a matter of fact, in dealing with the application under Section 5 of the Limitation Act, for condoning the delay in filing the appeal, there are two important considerations to be born in mind, namely; (i) The expiration of limitation in filing the appeal gives rise to a legal right in favour of the decree-holder or the person in whose favour the order is passed to treat the decree or order as binding between the parties and this legal right should not be light-heartedly disturbed; (ii) If ‘sufficient cause’ for excusing the delay is shown, the applicant is not entitled, as a matter of right to condone the delay but discretion is given to the court to condone the delay and admit the appeal. 7. The line of thought that Section 5 of the Act should be liberally construed so as to advance substantial justice is behind the Court’s acceptance of condonation of delay. 8. Further Section 5 of the Limitation Act aforesaid gives the Courts - 6 - a discretion, which in respect of the jurisdiction is to be exercised in the way in which the judicial power and discretion ought to be exercised upon the principles the words “sufficient” cause receiving a legal construction so as to advance substantial justice when no negligence nor any inaction nor want of bonafidies is imputable to the appellant. If the appellant makes out sufficient cause, the Court may in its discretion condone the delay in filing the appeal. It is equally settled that Court must take a reasonably liberal view. 9. The power to condone the delay rests with the Court in which the application is filed seeking condonation. The High Court before which the matter came up in revision against the order on the said application would only examine, whether the lower Court, on the facts adduced on record had committed any mistake of law or any patent error/material irregularity. 10. In the instant case, the learned Appellate Authority, after considering the contention raised by the respondent- - 7 - tenants, who is the Department of the State Government, duly supported by the affidavit of the Assistant District Attorney, must have also kept in mind as to how the files moves in the Government Departments. Therefore, he came to the conclusion that it could be a case of negligence on the part of the respondent- applicants or their authorized representatives in the Court, but there is absolutely no reason to disbelieve that they deliberately did not come to the court in time. Otherwise also by delaying the matter they would not have gained anything. 11. Therefore, when the application did not smacks of malafidies, the door of the Court cannot be shut against the party even if the party is negligent. After considering the matter, in my opinion, the discretion exercised by the learned Appellate Authority in condoning the delay in filing the appeal did not suffer from any bias or material irregularity or patent error which could impel this Court to reverse its findings. But, however, the petitioner-landlord could have been - 8 - adequately compensated for their negligence. 12. In view of the facts emerging from the record and the law, I do not find any reason to set aside the impugned order. However, it is modified to the extent that respondents-tenants shall pay a cost to the tune of Rs. 5000/- to the petitioner- landlord for their negligence and the respondent-Department shall be at liberty to recover it from its defaulting Officer. 13. Accordingly, revision petition is disposed of with the above modification in order impugned. 14. Parties are hereby directed to appear before the learned Appellate Authority on 5.1.2010. They shall deposit the amount of costs aforesaid on or before 5.1.2010 before the learned Appellate Authority (II), Shimla, failing which, the petitioner-landlord shall be at liberty to file execution to recover the cost. 15. The learned Appellate Authority shall make every endevour to dispose of the appeal filed by the respondents-tenant on or before 31.3.2010. - 9 - 16. Dasti copy of this order be supplied to the respondents-tenants. Record of the learned Appellate Authority be returned forthwith so as to reach before it on or before the date fixed. December 24, 2009 (Surinder Singh),J (cm)