1 (WP1634/2011) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1634 OF 2011 S.R.S. Ratilal Bhagwandas .... Petitioner. V/s Kamleshsingh Harnamsingh Chowhan ... Respondent. Mrs. Snehal Modi for the Petitioner. Mr. Vivek Kantawala with Ms. Sneha Nanondkar and Bhairavi Wavdevekar for the Respondent. CORAM: V. M. KANADE, J. DATE : 25th April, 2011 P.C.:- 1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel appearing on behalf of the Respondent. 2. Petitioner is aggrieved by the order dated 21/4/2010 passed by the Trial Court dismissing the application filed by the Petitioner/original Defendant for condonation of delay in complying with the order dated 18/12/2006 passed by the Trial Court. 2 (WP1634/2011) 3. Brief facts are as under:- 4. Petitioner is the original tenant. Respondent – landlord filed a suit for eviction on the ground of bonafide requirement and also on the ground that the Petitioner had acquired suitable alternate accommodation. In the said suit, Plaintiff filed an application seeking discovery and inspection of documents and the following order was passed on the said application on 18/12/2006. “The Application is dismissed. However, the Defendant is directed to make discovery and give inspection of the documents at Sr. No.3 and 4 entered in the Notice dated 9.09.2005 given by the Plaintiff within one month from today. If within the said period, the Defendant fails to make discovery and give inspection of the documents his defense shall be struck down.” According to the Petitioner, since his advocate and Rajesh, C.A. were not present in Court on 18/12/2006, they were unaware of the operative part of the order. It is submitted that the certified copy of the said order was received on 3 (WP1634/2011) 21/02/2007 and immediately Petitioner’s advocate sent a letter to the Plaintiff asking him to take inspection of the said documents. According to the Petitioner herein, at this stage, the Plaintiff’s advocate by letter dated 28/2/2007 informed the Defendant that the stage of discovery and inspection was over. According to the Petitioner/original Defendant, on account of his failing health, his son Rajesh, C.A. was looking after the said matter and that in the month of March to May 2007, Rajesh was busy with his job as a Manager of the hotel and he was, therefore, unable to attend the court. The learned Counsel appearing on behalf of the Petitioner submitted that on account of lack of coordination and difficulty of Rajesh, son of the Defendant and their advocate, Plaintiff could not be cross-examined and his cross- examination was closed by order dated 12/06/2007. Application for setting aside the “no cross” was also filed and the said order was set aside on 25/08/2008 and the Plaintiff was awarded costs of Rs 1000/- by the said order. Thereafter, application for amendment of the Written Statement was also made. The application for condonation of delay in filing application for setting aside the order dated 18/12/2006 was dismissed by the Trial Court by its order dated 21/04/2010. Being aggrieved by the said order, Petitioner herein preferred Revision Application before the Appellate Bench of the Small Causes Court. Revision Application was dismissed on the ground that it was not maintainable. Against this order, Review Petition was filed before the same Court which was also dismissed and, 4 (WP1634/2011) thereafter, the present Petition has been filed challenging the order passed by the Trial Court dated 21/4/2010. 5. The learned Counsel appearing on behalf of the Petitioner has urged that the said delay was caused since the Petitioner was not aware of the said order and as soon as he became aware of the said order, he filed an application for condonation of delay. It is submitted that the said delay was caused inadvertently and since the Defendant, Petitioner herein, was under the impression that the application filed by the Petitioner for striking out defence was dismissed and since the certified copy of the order was made available only on 21/2/2007, the Petitioner did not know about the conditional order which was passed in the said order. It is, therefore, submitted that sufficient cause had been shown by the Petitioner for condoning delay which was caused. The learned Counsel for the Petitioner invited my attention to the impugned order and submitted that grave injustice would be caused to the Petitioner if his defence is struck off. It is submitted that subject to conditions which may be imposed by this Court, the said order may be set aside and opportunity may be given to the Petitioner to contest the case on merits. 6. On the other hand, the learned Counsel appearing on behalf of the Respondent submitted that the Petitioner’s advocate had appeared in the Trial Court when the application was filed by the Plaintiff, the Respondent herein, 5 (WP1634/2011) for striking out the defence and that his advocate was aware that the order would be passed on the said application. It is submitted that even the other orders which were passed by the Trial Court were not complied with and the delay that was caused was deliberate and was a part of the dilatory tactics adopted by the Defendant/Petitioner. It is submitted that the application for condonation of delay, therefore, should not be allowed in a routine manner and there was no reason to interfere with the interlocutory order passed by the Trial Court particularly when the Trial Court, after giving cogent reasons, had observed that the contention of the Petitioner/Defendant was unbelievable. Reliance was placed on two judgments; one of the Supreme Court in Balwant Singh (Dead) vs. Jagdish Singh & Ors1 and other of the learned Single Judge of this Court in State Bank of India vs. Shri Laxmikant Vithal Palekar & Ors.2 7. After having heard both the Counsel at length and after having perused the order, in my view, no case is made out for interfering with the impugned order passed by the Trial Court. The Trial Court, while rejecting the application, has taken into consideration all the circumstances of the case as also the contention of the Petitioner herein and has observed that the explanation given by the Defendant for delay caused in filing the application did not inspire confidence and does not appear to be probable. The Trial Court has observed that the Defendant has not complied with the three 1 AIR 2010 SC 3043 2 2010(4) ALL MR 844 6 (WP1634/2011) orders passed by the Trial Court viz, the order passed in Interim Notice No.2962 of 2005, Interim Notice No.1471 of 2006 and in Interim Notice No.1088 of 2007. The Trial Court also has observed that the explanation given by the son of the Defendant that he was busy from March to May 2007 and, therefore, could not take any prompt action during this period also is unbelievable since the application for certified copy was made immediately on the same day i.e. 18/12/2006. The Court also observed that even though the Plaintiff filed his examination in chief and the documents relied upon by him had been collected by the advocate for Defendant, they remained absent and the Trial Court has observed that for the purpose of taking cross-examination of the Plaintiff the presence of C.A. of the Defendant was not mandatory or necessary. The Apex Court has in Balwant Singh (Dead) vs. Jagdish Singh & Ors1 has observed that even if the term ‘sufficient cause’ has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The Apex Court, in the said judgment, has observed in paras 13 and 14 that though the courts are expected to take liberal approach in respect of the condonation of delay, if the delay is condoned in each and every case irrespective of the period of delay, it would practically render all the provisions redundant and inoperative. The Apex Court has has further observed that the expression ‘sufficient cause’ implies presence of legal and adequate reasons. The ratio laid down 1 AIR 2010 SC 3043 7 (WP1634/2011) by the Apex Court in the said judgment, therefore, will squarely apply to the facts of the present case. 8. It is noticed that tendency of the Defendants against whom suits are filed for eviction is to delay and protract the proceedings is growing and several kinds of dilatory tactics are employed by the Defendants to protract the proceedings. In the present case, suit is filed by the Plaintiff on the ground of bonafide requirement and also on the ground that the Defendant has acquired suitable alternate accommodation. Even the order which was passed allowing the application filed by the Petitioner for setting aside the order of ‘no cross’ after imposing costs of Rs 1000/- was not complied with for a period of one year and, thereafter, again application for condonation of delay is filed. 9. Under these circumstances, in my view, no case is made out for interfering with the order passed by the Trial Court while exercising power vested in this Court under Article 227 of the Constitution of India. Writ Petition is dismissed. (V.M. KANADE, J.) 8 (WP1634/2011)