The above principal is not absolute and may not be applicable to the extraordinary jurisdiction exercised by the courts for protection of the fundamental rights of the citizens or any other legal right. It may also not apply where the courts for reasons to be recorded are of the view that any delay on its part would defeat the interest of justice.
ALLAHABAD HIGH COURT
Case :- WRIT - A No. - 42760 of 2000
State Of U.P. V Ist A.D.J.& Others
Order Date :- 24.7.2014
Hon'ble Pankaj Mithal,J.
Heard Sri Manoj Kumar Goswami, learned Standing counsel for the petitioners and Sri Pramod Jain, learned counsel appearing for heirs and legal representatives of respondents no. 3.
The State of U.P. through Collector, Firozabad and others have impugned two orders dated 17.9.1995 and 19.12.1998 (annexures 4 and 7) by means of this writ petition.
The respondent no. 3 now represented by his heirs and legal representatives had applied under Section 21 (8) of U.P. Act No. 13 of 1972 for enhancing the rent of the premises under tenancy of the petitioners. The said application was allowed vide order dated 17.9.1995 passed by the Additional District Magistrate (Finance and Revenue) exercising powers of the Rent Control and Eviction Officer.
The petitioners filed an appeal on 14.3.1997 under Section 22 of the Act challenging the above order with the delay of 543 days along with an application for condoning the delay in its filing. The application filed under Section 5 of the Limitation Act has been rejected by the order dated 19.12.1998.
These two orders dated 19.12.1998 and 17.9.1995 have been impugned in the petition.
The argument of learned Standing counsel is that the appellate court has manifestly erred in rejecting the delay condonation application. The order dated 17.9.1995 was passed in the absence of the counsel for the petitioners. Therefore they had no knowledge of it which occasioned delay in filing the appeal. Secondly, the case was before the Rent Control and Eviction Officer but on one of the dates fixed it was transferred to the Lok Adalat from where it appears that it was returned to the Rent Control and Eviction Officer and both the transfers took place without any information to the petitioners.
Sri Pramod Jain, learned counsel appearing for the heirs and legal representatives of respondent no. 3 contends that the application of the petitioners to condone the delay has been rejected as the petitioners have acquired knowledge of the order dated 17.9.1995 much earlier to 21.2.1997 as alleged by them.
I have gone through both the impugned orders. The orders revel that on one of the dates fixed ie. 15.9.1995 the arguments from the side of the respondent no. 3 were heard and the matter was posted for 17.9.1995 before the Lok Adalat for hearing of the DGC (Civil). On the said date as probably no information was given to the DGC (Civil) or to the petitioners, he failed to appear and the impugned order dated 17.9.1995 was passed enhancing the rent of the premises from Rs. 75/- to Rs. 4,666/- w.e.f. 1.8.1993.
It is left to one's own imagination as to how a case pending before the Addl. District Magistrate/Rent Control and Eviction Officer was ordered to be put before the Lok Adalat, it is still surprising how a matter which has been heard in part by the Rent Control and Eviction Officer can be directed to be put for completion of the arguments before another authority ie. Lok Adalat.
It is ample clear from the order dated 17.9.1995 that after the arguments of respondent no. 3 were heard, the case was directed to be placed before the Lok Adalat for hearing of DGC (Civil) with the oral direction to inform him about the same.It is apparent that the final order was passed on 17.9.1995 without hearing the DGC (Civil) by the Rent Control and Eviction Officer himself instead of Lok Adalat before whom it was directed to be placed.
The matters in Lok Adalat are generally taken up on Saturdays or Sundays. Therefore, the Court made an inquiry as to whether the order dated 17.9.1995 was passed on Saturday or Sunday. The counsel for both the parties after due verification informs and agrees that 17.9.1995 was a Sunday.
In view of the above, as the order dated 17.9.1995 has been passed by the Rent Control and Eviction Officer and not the Lok Adalat before whom it was directed to be placed, another surprise springs up as to whether the Rent Control and Eviction Officer was competent to hold court on Sunday and pass the impugned order.
The maxim DIES DOMINICUS NON EAST JURIDICUS means Sunday is not a day for judicial or legal proceedings. It is a day which has been reserved for divine service from times immemorial. Therefore, as of practice ordinarily no judicial work or act is done on Sundays though ministerial acts may be performed or the law makers may occasionally sit and make laws even on Sundays. The above practice in principle has always been, and still is, law except, if otherwise provided by the Statute.
The above principal is not absolute and may not be applicable to the extraordinary jurisdiction exercised by the courts for protection of the fundamental rights of the citizens or any other legal right. It may also not apply where the courts for reasons to be recorded are of the view that any delay on its part would defeat the interest of justice.
Thus, the order dated 17.9.1995 passed by the Rent Control and Eviction Officer can not stand in law for a minute, more so, as it has been passed without hearing the DGC (Civil).
It is admitted that the case was heard in part on 15.9.1995 and was posted before the Lok Adalat for hearing on 17.9.1995 without any information to the petitioners or to the DGC (Civil) with the oral instructions to inform him.There is nothing on record to establish that any information in this regard was submitted to the petitioners or to the DGC (Civil). Petitioners or the DGC (Civil) on the first hand had no information of the case being fixed for 17.9.1995 before the Lok Adalat and even if it is presumed for a minute that they had knowledge of it they were not expected to appear in judicial proceedings on the said date which happened to be a Sunday.
The reasoning given by the appellate court in rejecting the application that the petitioners had knowledge of the order dated 17.9.1995 prior to the alleged date on 21.2.1997 is based upon notice alleged to have been given by respondent no. 3.
It appears that after the application under Section 21 (8) of the Act was allowed on 17.9.1995, the respondent no. 3 had sent notice dated 1.2.1996 under Section 80 CPC by registered post to the District Magistrate, Firozabad, SSP Firozabad and to the Ministry of Home, Lucknow for the purposes of filing a suit for recovery of enhanced rate.
The appellate court on the basis of the said notice inferred that the petitioners had notice of the order dated 17.9.1995. However, there is no material to prove that the aforesaid notices were ever served upon either of the parties. The service of the said notices was presumed as the petitioners had not rebutted the allegation of the notice being sent by registered post. No such presumption could have been drawn unless notices so sent were returned with the endorsement of refusal or like or until and unless it has come on record that the notices were not returned unserved and the acknowledgments have not been received back. There is nothing of this kind on record or in the findings of the appellate court.
In view of the above, the appellate court committed an error in presuming the service of the said notices upon the petitioners and thus attributing knowledge of the order dated 17.9.1995 to them.
At this stage Sri Pramod Jain stated that under the facts and circumstances of the case quashing the order dated 19.12.1998 directing the appeal to be decided on merits after condoning the delay would not suffice and it is better that the matter be remanded to the court of first instance for decision afresh.
The stand taken by Sri Jain appears to be fair and in the interest of justice as for the reasons stated above the order dated 17.9.1995 passed by the Rent Control and Eviction Officer is unsustainable and has ultimately to be set aside by the appellate court.
The above facts and circumstances speaks for themselves that not only the order dated 19.12.1998 but also the order dated 17.9.1995 are both unsustainable in law.
Accordingly the impugned orders dated 17.9.1995 and 19.12.1995 (annexures 4 and 7) of the writ petition are quashed and the matter is remanded to the Rent Control and Eviction Officer to decide application under Section 21(8) of the Act afresh in accordance with law.
The Court vide interlocutory orders dated 19.7.2010 and 13.8.2010 had directed the petitioners to deposit entire arrears of rent before the Registrar General. In pursuance thereof the petitioners calculated the entire arrears of rent at the enhanced rate w.e.f.1.8.1993 upto the aforesaid date of order 31.8.2010. The said arrears were worked out to be Rs. 9,38,630/-. Out of the aforesaid amount Rs. 2,25,000/- was paid to the respondent no. 3 and the remaining amount of Rs. 6,13,630/- was deposited as directed before the Registrar General on 20.8.2010.
The aforesaid amount is lying with the registry and part as mentioned above is with respondent no. 3. Since the impugned orders have been quashed, it means there is no enhancement of rent as on date. Therefore, the Registrar General as well as respondent no. 3 now represented by heirs and legal representatives are directed to remit/deposit the aforesaid amount to the Rent Control and Eviction Officer who will invest it in a fixed deposit with a nationalized bank to be paid according to final order passed by him in pursuance of remand made above.
The writ petition is allowed as above but with no orders as to costs.
Order Date :- 24.7.2014
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