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Patiram Budharao Pimpalkar Vs. Mohammed Usman - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMumbai High Court
Decided On
Case NumberWrit Petn No. 2125 of 1982
Judge
Reported inAIR1984Bom364; (1983)86BOMLR480
ActsConstitution of India - Article 227; C.P. and Berar Letting of Houses and Rent Control Order, 1949
AppellantPatiram Budharao Pimpalkar
RespondentMohammed Usman
Appellant AdvocateA. Shelat, Adv.
Respondent AdvocateV.S. Sirpurkar, Adv.
Excerpt:
.....communicated to him' in clause 21(1) -- connotation of -- date for passing of order given by rent controller to parties and their counsel -- order passed on specified day but parties absent on that day -- whether communication of order to parties necessary so that thereafter limitation for filing appeal would start -- writ petition challenging order refusing condonation of delay in filing appeal against order passed by rent controller under clause 13(3)(vi) -- whether in same petition order of rent controller can be challenged -- limitations on supervisory jurisdiction of high court under article 227 of constitution of india -- constitution of india, article 227 -- limitation act (xxxvi of 1963), section 5.;the expression 'from the date on which the order is communicated..........of delay in filing the appeal before hi,.2. the petitioner had filed an applicaiton before the rent controller for grant of permission to terminate the lease of the respondent under clause 13(3) (vi) of the rent control order. the argument were heard by the rent controller on 25-1-1982 and the case was posted for orders on 6-2-1982. the order was passed by the rent controller on 6-2-1982 but as none turned up he directed the order to be communicated to theparties. it appears from the proceedings that the attorney of the counsel for the landlord appeared on 2-3-1982 and signed the order sheet of those proceedings. there is nothing to show that any communication as such was sent by the rent controller to the parties after having passed the order on 6-2-1982.3. an applicaiton for.....
Judgment:
ORDER

1. This is landlords petition under Art. 227 of the Constitution for quashing the order pssed by the Resident Deputy Colletor, rejecting his application for condonation of delay in filing the appeal before hi,.

2. the petitioner had filed an applicaiton before the Rent Controller for grant of permission to terminate the lease of the respondent under clause 13(3) (vi) of the Rent control Order. The argument were heard by the Rent controller on 25-1-1982 and the case was posted for orders on 6-2-1982. The order was passed by the Rent Controller on 6-2-1982 but as none turned up he directed the order to be communicated to theparties. It appears from the proceedings that the Attorney of the Counsel for the landlord appeared on 2-3-1982 and signed the order sheet of those proceedings. There is nothing to show that any communication as such was sent by the Rent Controller to the parties after having passed the order on 6-2-1982.

3. An applicaiton for certified copy of the impugned order was made on 8-3-1982 and the applicant a was told to appear on 15-3-1982. Admittedly, the applicant never on apperaed for taking copy on 15-3-1982. The copy of te order was delivered on 8-4-1982 and the appeal before the Resident Deputy Collector was filed on 17-4-1982 accompanied by an applicaiton for condonation of delay stating that the clerk Sharad nampalliwar the of the Advocate had appeared for taking copy on 11-3-82, 14-3-82 and 23-2-82, but the clerk concerned was not found in this place. Nothing however, was stated in this application as to why be he did not appear on the date he was told to appear on the i. e. 15-3-1982.

4. this applicaiton was opposed and the Resident Deputy Collector refused to condone the delay. He observed that no affidavit of the Attorney was filed and the delay from 15-31982 (when the applicant was told to appear) to 8-4-1982 (when the copy was delivered ) was not at all explained . He observed that the appellant admittedly failed to appear on 15-3-1982 but preferred to appear to take delivery at his own condonation of delay that is being questioned, but the original order passed by the Rent controller rejecting the application for grant of permission is also being assailed.

5. At the outset, it may be pointed out that the supervisory jurisdiction conferred on ths Court under Art. 227, as observed recently by the supreme Court inMohd, Yunus v. Mohd, Mustaqim : [1984]1SCR211 , is limited to seeing that an inferior Court of Tribunal function within the limits of its authority , and the not to correct an error apparent on reface of the record, much less an error of lw. The learned resident Deputy collector rightly observed that no explanation was offered as to why no appearance was made to collect the copy on 15-3-1982. It is true that an affidavit of the attorney concerned was filed and the Resident Deputy collector was not justified in observing that the application was not at all supported by any affidavit. The Resident Deputy Collector found that the fact that this finding cannot be called in question in the exercise of the powers under Art. 227, I find that the order so passed is even otherwise justified.

6. The argument before the Rent Controller were concluded on 25-1-1982 and the case was fixed for for order on 60201982. It is passed on 6-2-1982 . It is not the allegation that noo order infact was passed on 6-2-1982. As none appeared on that day, the Rent Controller, after passing the order, directed that the order so passed be communicated. No communication of this order was, however, sent to the parties, but the Attorney of the Counsel for the landlord chose to apear on 2-3-1982 and he signed the order sheet, while the respondent chose to appear on some other date and he also signed the order sheet. Thus, the delay between 6-2-1982 (when the application for copy was made) must also be taken into account,m and in this view of the mater, after the period of limitation which is fifteen days as prescribed under Cl 21 of the Rent Control Order.

7. Shri shelat, the learned counsel for the petitioner, submitted that as per Cl. 21 (1), period of limitation wuold run not from the date when the order is passed but from the date on which the order is communicated to the aggrieved party, and since in the instant case the communication was made on 2-3-82 when the counsel Shelat Clause 21(1) of the Rent Control Order, no doubt, says that a person aggrieved may present an appeal 'within fifteen days from the date on which the order is communicated to him'. Nw, in case where the date of passing of the order is given by the Rent Controller as here, and if on the said date the order is actually passed, there is provision which requires the Rent Controller to communicate that order to the parties, in the case they do not choose to appear. Infact, when a particular date is given of which the parties and the counsel take note and the order is actually passed on that date, the running of the period of limitation would not be stopped merely because the aggrieved party fails to attend on that date. The limitation will not (run) from the date the party choose to appear and make a note of the order pssed by signing the order sheet, without there being any communication from the Rent Controller. In such a case, the order must be deemed to tbe communication to the parties whn the order is pronounced on the fixed date communicated in advanced. In the instant case, admittedly there was no communication sent by the Rent controller to the petitioner about passing of the order. The expression 'from the date on which the order is communicated to him' appearing in the above clause, would apply only when no date is fixed and the order is communicated to the parties. Given its natural meaning the expression must mean that but for the communication from the Rent Controiller, the aggrieved party could not know about the passing of the order. The aggrieved party would always be able to control the running of the period of limitation will run not from the date the order is passed of which he d had prior of limitation if it is held that the period of limitation will run not from the date the order is passed of which bhe had prior intimation but from the date when it chooses to appear to make note of the same. I this find that the petitioner was not justified in computing the period of limitation form 2-3-1982 and 8-3-1982. There is no explanation , therefore, for the delay between 6-2-1982 and 8-3-1982. Under the circumstances I see no reason to interfere with the order passed by the Resident Deputy Collector rejecting the application for condonation of delay.

8. Relying upon M|s hyderabad Allwyn Metal Works Ltd. v. collector 1978 Tax Lr 1959) (Andh Pra) Shri, Shelat submitted that the petitioner can also, in this petition challenge the order passed of by the Rent Controller refusing grant of permission. What was laid down in this decision is that the doctrine of merger can have no application to be to say that the doctrine of merger would not apply, it is necessary to show that the order passed by the original authority is inherently void for want of jurisdiction . The error. Irregularity or illegality, touching jurisdiction of procedure, committed by the inferior Court must be shown to be so patent that it leaves a stamp of infirmity of vice which cannot be obliterated. In the instant case, it was alleged by the petitioner that the he was himself residing in rented premises with his family consisting or ten members and that the e needed the house in question for his own bona fide occupation. The Rent Controller observed that during cross-examination, the petition admitted that his family consisted of five members only and that he did not adduce any evidence to proved his bona fide ned. Thsu, all that was stated by him was that he has no house of his own except the one in question. He , however, state nothing about his present discomfort and about the necessity of moving from the present premises, though rented, to the house in qeustion. It cannot be said that he Rent controller had no jurisdiction to decide whether the petitioner really proved that he needed the premises for bona fide occupation. There is no patent illegality , nor can the order be said to be void ab initio, The second submission of shri Shelat also , is therefore, devoid of any metit. 10. In the result, the petition is dismissed . Rule is discharged. No order as to costs .

9. Petition dismissed.


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