Common Order:
1. Heard Sri Ch. Srinivas, learned counsel appearing for the petitioners and Sri B.M Mahesh umar, learned counsel appearing for the respondent. Perused the material available on the record.
2. These three Civil Revision Petitions arise out of proceedings before the learned Additional Rent Controller, City Small Causes Court, Secunderabad.
i. C.R.P. Nos.4765 of 2018 and CRP No.4782 of 2018 challenge the common order dated 07.08.2018 passed in I.A.No.96 of 2018 and I.A.No.97 of 2018 in R.C.No.42 of 2017, whereby the learned Additional Rent Controller dismissed the petition filed by the petitioner/judgment debtors to condone the delay of 55 days in filing the petition and also petition to set aside the exparte eviction order dated 16.04.2018.
ii. C.R.P. No.588 of 2022 arises out of the order dated 09.03.2022 passed in E.P.No.12 of 2018 in R.C.No.42 of 2017, whereby the learned Additional Rent Controller declined to consider the affidavit filed by the petitioners/judgment debtors and proceeded to direct issuance of a warrant of possession, without taking into account the pendency of the earlier Civil Revision Petitions and the interim orders subsisting thereunder.
Since all the above three Civil Revision Petitions relate to the same parties, arise from a common set of facts, and arise out of same proceedings, they are being disposed of by way of this common order.
I. BRIEF FACTS
3. The factual backdrop to the present revision is as follows:
a) The respondent/decree holder filed R.C.No.42 of 2017 before the learned Additional Rent Controller, City Small Causes Court, Secunderabad, seeking eviction of the petitioners/judgment debtors from the petition schedule property under Section 10(2)(i) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as "the Act"). The petitioners/judgment debtors failed to file their counter despite repeated adjournments granted from 28.12.2017 to 29.03.2018. Noting that the statutory period of 90 days had elapsed, the learned Additional Rent Controller set the petitioners/judgment debtors exparte on 29.03.2018 and posted the matter for exparte evidence. On 09.04.2018, the chief examination affidavit of P.W.1 was filed and Exs.P.1 to P.15 were marked. After hearing, the learned Additional Rent Controller passed the eviction order on dated 16.04.2018 directing the petitioners/judgment debtors to vacate and deliver vacant possession of the petition schedule premises to the respondents within one month.
b) Upon expiry of the aforesaid period, the respondent/decree holder filed E.P.No.12 of 2018 in R.C. No. 42 of 2017. Thereafter, the petitioners/judgment debtors filed I.A.No.96 of 2018 and I.A.No.97 of 2018 to condone the delay of 55 days in filing the petition to set aside the exparte order and to set aside the exparte order dated 16.04.2018. Both petitions were dismissed by the learned Additional Rent Controller by a common order dated 07.08.2018, holding that the petitioners failed to show sufficient cause for the delay and that the only ground urged was the reliance placed on a cousin named Sanjay to follow up the case was not a sufficient cause, particularly when the petitioner was personally present before the Court on 29.03.2018 and had personally sought time to file her counter-affidavit. Aggrieved thereby, the petitioners/judgment debtors filed CRP No.4765 of 2018 and C.R.P. No.4782 of 2018 before this Hon’ble Court. This Hon’ble Court, by order dated 28.12.2018, passed order that the interim order granted on 05.10.2018 shall be continued.
c) The learned Additional Rent Controller, by order dated 09.03.2022 in E.P.No.12 of 2018, declined to take on record the affidavit filed by the petitioners/judgment debtors on the ground that it was filed at belated stage instead of filing on the last date and also held that no petition had been filed to set aside the orders of issuance of warrant. Aggrieved by the said order dated.09.03.2022, the petitioners/judgment debtors have preferred C.R.P. No.588 of 2022.
II. SUBMISSIONS OF THE PARTIES:
a) Submissions on behalf of the petitioners/JDRs:
4. The learned counsel for the petitioners contended that the petitioners are unmarried women, who were depending upon their cousin for pursuing the litigation and maintaining communication with their counsel. Owing to a communication gap, they were unaware of the proceedings and thereby the exparte order dated 16.04.2018 was passed against them. Immediately upon learning of the exparte decree through the execution proceedings, they approached the Court and filed applications I.A. No.96 of 2018 and I.A. No. 97 of 2018 for condonation of delay and setting aside the said exparte order. The delay was neither deliberate nor wilful, and the learned Additional Rent Controller ought to have adopted a liberal approach in considering their said applications.
5. It is also submitted that the petitioners also submit that the order dated 09.03.2022 directing issuance of warrant for eviction was passed despite the pendency of Civil Revision Petitions before the Hon'ble High Court. The learned Additional Rent Controller incorrectly relied upon the judgment in Asian Resurfacing of Road Agency Pvt. Ltd. v. CBI((2018) 16 SCC 99) limiting the operation of interim stay orders granted by High Court to six months applies only to stays of trials in civil and criminal cases.
6. The learned counsel for petitioners further submitted that there was no established landlord-tenant relationship between the petitioners and the respondent, nor was there any valid attornment of tenancy in favour of the Respondent. Even while passing an exparte order, the Court was required to satisfy itself regarding the merits of the case and the maintainability of the proceedings. The dismissal of the applications filed by the petitioners without adequately considering these fundamental issues has resulted in serious miscarriage of justice.
7. It is also submitted that after obtaining exparte order dated 16.04.2018, the respondent has not issued any notice to the petitioners for eviction and handing over the possession with in the allotted time under the said order. The learned Executing Court erroneously rejected the affidavit filed by the petitioners in E.P. No. 12 of 2018 despite the same having been filed on the very next date of hearing and during call work. The learned Executing Court also failed to consider that the petitioners produced the orders of this Hon'ble Court along with case status details and sought reasonable time to file an affidavit. The observation that the affidavit was belated is therefore, factually incorrect and contrary to the record.
b) Submissions on behalf of the respondent/DHR:
8. It is respectfully submitted that the petitioners were fully aware of the pendency of the R.C. No. 42 of 2017. They cannot now plead ignorance or communication gap with their cousin, as one of the petitioners was personally present before the learned Additional Rent Controller on 29.03.2018 and sought time for filing counter. The plea taken by the petitioners is false, frivolous and an afterthought. It is submitted that after service of notice in R.C. No. 42 of 2017, the petitioners appeared before the learned Additional Rent Controller through their counsel and filed vakalat on 28.12.2017. The learned Additional Rent Controller granted sufficient and reasonable opportunities to the petitioners to file their counter. However, despite repeated adjournments granted from time to time from 29.01.2018 to 29.03.2018, the petitioners failed and neglected to file their counter. Ultimately, after the expiry of statutory period of 90 days, the learned Additional Rent Controller rightly set the respondents ex-parte on 29.03.2018. Thereafter, the exparte evidence was recorded and the eviction order was passed on 16.04.2018 in aforesaid R.C.
9. Thus, there is no illegality or irregularity in passing the exparte order by the learned Additional Rent Controller. The delay of 55 days in filing the restoration petition was wholly unexplained by cogent evidence and the reason of entrusting the matter to a cousin, who was not a party to the proceedings, cannot constitute "sufficient cause" within the meaning of Section 5 of the Limitation Act. The learned counsel further submitted that the impugned orders were legally correct and do not call for any interference.
III. POINT FOR CONSIDERATION:
10. Having considered the rival submissions and the material on record, this Court deems it appropriate to frame the following point for consideration:
‘(i) Whether the learned Additional Rent Controller erred in refusing to condone the delay of 55 days in filing the petition to set aside the ex parte eviction order dated 16.04.2018, and whether the consequential dismissal of I.A.No.96 and I.A.No.97 of 2018 warrants for interference by this court?
(ii) Whether the order dated 09.03.2022 in E.P.No.12 of 2018 directing execution to proceed, in the face of subsisting interim orders of this Court in CRP Nos.4765 and 4782 of 2018, is sustainable in law, suffer from any material irregularity, illegality or jurisdictional error warranting interference by this Court?’
IV. ANALYSIS:
11. There is no dispute with regard to the fact that the petitioners had entered appearance in the R.C. No. 42 of 2017, through their counsel and sought several adjournments for filing their counter. It is also borne out from the record that one of the petitioners was personally present before the learned Additional Rent Controller on 29.03.2018. Consequently, the learned Additional Rent Controller set the petitioners exparte upon expiry of the statutory period prescribed for filing the counter and thereafter passed the eviction order on 16.04.2018. However, the question before this Court is not whether the learned Rent Controller was justified in proceeding exparte, but whether the petitioners have shown sufficient cause for their subsequent failure to approach the learned Court within the prescribed period for seeking restoration of the proceedings.
12. The petitioners have specifically pleaded that being unmarried women without adequate legal knowledge, they had entrusted the responsibility of coordinating with their counsel to their cousin, Sanjay, who was expected to keep them informed about the progress of the case. According to them, owing to a communication gap and failure on the part of the said cousin to properly inform them about the proceedings, they remained under the impression that the matter was still pending and came to know about the exparte eviction order only when execution proceedings were initiated.
13. At this juncture, it is apposite to refer to the judgment of the Hon'ble Supreme Court relied upon by the petitioners in N. Balakrishnan v. M. Krishnamurthy((1998) 7 SCC 123), wherein it was held that while considering an application for condoning the delay, the length of delay is not decisive and that the acceptability of the explanation alone is the governing criterion. The Apex Court further observed that there is no presumption that delay is always deliberate and that the expression "sufficient cause" must receive a liberal construction so as to advance substantial justice. It was further held that mere lapse or negligence on the part of a litigant would not by itself justify shutting the doors of justice, unless the explanation is tainted by mala fides or forms part of a deliberate strategy to protract the proceedings.
14. The petitioners further placed reliance upon the judgment of the Hon'ble Supreme Court in Perumon Bhagvathy Devaswom, Perinadu Village v. Bhargavi Amma (Dead) by LRs((2008) 8 SCC 321), wherein it was held that
“'The words 'sufficient cause for not making the application within the period of limitation' should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words 'sufficient cause' in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the appellant... The decisive factor in condonation of delay is not the length of delay, but sufficiency of a satisfactory explanation.'
15. In the instant case, there is nothing on record to indicate that the petitioners deliberately abstained from the proceedings with a view to gain any unfair advantage or to protract the litigation. On the contrary, the circumstances indicate that the petitioners approached the Court immediately after becoming aware of the consequences arising out of the exparte decree. The learned Additional Rent Controller, instead of examining whether the explanation was bona fide and whether substantial justice required an opportunity to be afforded to the petitioners, adopted an unduly technical approach in rejecting the applications vide I.A. No.96 of 2018 and I.A. No.97 of 2018. It is equally relevant to note that the dispute pertains to an order of eviction affecting valuable possessory rights of the petitioners. Courts have consistently preferred adjudication on merits rather than non-suiting parties on technical grounds, particularly where denial of an opportunity would result in serious civil consequences.
16. The Hon'ble Supreme Court in G.P. Srivastava v. R.K. Raizada((2000) 3 SCC 54), held as under:
"The words 'was prevented by any sufficient cause from appearing' must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to erring party" and that "Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as elastic expression for which no hard and fast guidelines can be prescribed."
It was further held as under:
“If sufficient cause is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier" and that "In a case where defendant approaches the Court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits."
17. Having regard to the totality of circumstances, particularly the fact that the petitioners are two unmarried women with limited resources and legal awareness and since the delay was caused by the conduct of their cousin and not by any deliberate act on their part, and that the petitioners have put forth substantial defences touching the very maintainability of the eviction petition, this Court is of the considered view that it is a fit case for condonation of the delay of 55 days in filing the restoration petition. The ends of justice require that the matter be decided on merits.
18. This Court now turns to the order dated 09.03.2022 passed by the learned Additional Rent Controller in E.P. No.12 of 2018. A perusal of the record reveals that long prior to the passing of the said order, the petitioners had challenged the common order dated 07.08.2018 in I.A. Nos.96 and 97 of 2018 by filing C.R.P. Nos.4765 and 4782 of 2018 before this Court. Upon consideration of the matter, this Court while ordering notice before admission, granted an interim order on 24.08.2018. Thereafter, by a further order dated 28.12.2018, this Court directed that the interim order granted by this Court on 05.10.2018 shall continue and listed the case on 25.01.2019. Significantly, the said interim protection granted by this Court was never vacated, modified or recalled by any subsequent judicial order. In the absence of any such order, the interim arrangement continued to remain operative and binding on all parties as well as on the executing Court.
19. The learned Additional Rent Controller, while passing the order dated 09.03.2022, proceeded on the view that the interim order granted by this Court stood automatically vacated by virtue of the law laid down by the Hon'ble Supreme Court in Asian Resurfacing of Road Agency Pvt. Ltd.(supra), to the effect that an interim order of stay would lapse automatically on expiry of six months unless extended by a speaking order. The judgment in aforesaid case was rendered in the context of stays of trials in civil and criminal cases, and paragraph 35 of the said judgment makes it explicitly clear that the automatic lapsing of stay orders after six months was directed to apply to orders staying trials in civil and criminal cases pending before courts. The present proceedings in E.P. No. 12 of 2018 pertain to execution of a decree, not to a trial in a civil or criminal case. The ratio of the said judgment is therefore, wholly inapplicable to the present facts.
20. It is needless to observe that when a superior Appellate Court stays the operation of the judgment and decree of a trial court impugned in the appeal, the executing court cannot proceed to execute the judgment and decree which is stayed. This is contrary to Order XLI Rule 5 of the Code of Civil Procedure, 1908. Further continuation of any execution proceedings when the judgment and decree impugned is stayed by the Appellate Court, is in violation of such an interim order of stay of an appellate or superior Court. It is necessary to observe that when once a superior Appellate Court has granted stay of the operation of the judgment and decree impugned before it in an appeal, the trial court cannot insist that despite such stay of the operation of the judgment and decree, it would execute the same. In such Cases, the trial Court or any other Court subordinate to the High Court cannot insist that there has to be a further order made by the High Court continuing the stay of such orders on the expiry of six months from the date on which stay order was passed.
21. Furthermore, it is a settled principle of law that a subordinate court cannot assume to itself the power to determine whether an interim order passed by a superior court has lapsed or remains in force. It is for the superior court alone to vacate, modify, or affirm its own orders. The learned Additional Rent Controller, being a subordinate court, was bound to respect and give effect to the interim orders passed by this Court and could not, of its own motion, treat the same as having lapsed.
22. The Hon'ble Supreme Court in High Court Bar Association Allahabad v. State of Uttar Pradesh & Others,((2024) 6 SCC 267) expressly overruled the directions contained in paragraphs 36 and 37 of Asian Resurfacing of Road Agency Pvt. Ltd. v. CBI (supra). The Constitution Bench held that there cannot be automatic vacation of interim orders merely on account of lapse of time and that such a direction could not have been issued in exercise of powers under Article 142 of the Constitution. The Court categorically held that a direction providing for automatic expiry of stay orders is unsustainable in law and that substantive rights of litigants cannot be defeated without affording them an opportunity of hearing. The Hon’ble Supreme Court further observed that subordinate courts cannot proceed on the assumption that a stay granted by a superior court has automatically lapsed merely because a particular period has expired.
23. It is to be noted that the affidavit filed by the petitioners on 09.03.2022 was filed on the very next date of hearing and during call work, after they had produced the copy of the order of this Court along with case status details on the previous date i.e. 02.03.2022 and had sought time to file an affidavit. The learned Additional Rent Controller, however, refused to consider the affidavit on the ground that it was filed belatedly. This finding is contrary to the factual position emerging from the record and is therefore unsustainable.
24. It is settled law that a ‘lis’ has to be settled on merits but not on mere technicalities. In M/s.Anvita Auto Tech Works Private Limited v. M/s. Aroush Motors and another(2025 INSC 1202), the Honourable Apex Court observed as under:
“Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It is the handmaid of justice and not its mistress”
3. The object of the procedural rules is to advance the cause of justice and not to thwart it and when the rigid adherence to technicalities of procedure causes injustice, courts have to come to the rescue by adopting a liberal approach. The courts cannot countenance a situation Reason: where substantial justice is sacrificed at the altar of procedural rigidity.
Where substantial justice is at stake, technicalities must give way to ensure that the litigant is afforded sufficient opportunity to defend. The present controversy must be tested on the said principle.”
CONCLUSION:
25. Once the order refusing condonation of delay and restoration of the proceedings is set aside, the very foundation on which the execution proceedings were allowed to proceed becomes unavailable. The order dated 09.03.2022 passed in E.P.No.12 of 2018 is merely consequential to the continuance of the exparte eviction order and the dismissal of the restoration applications. In view of the findings recorded by this Court in CRP Nos.4765 and 4782 of 2018, the order under challenge in CRP No.588 of 2022 cannot independently survive and is liable to be set aside on this ground alone.
RESULT:
26. Accordingly, CRP No.588 of 2022, CRP No.4765 of 2018, and CRP No.4782 of 2018 are hereby allowed, subject to the condition that the Petitioners/Judgment Debtors shall deposit all arrears of rent at the rate of Rs.3,000/- per month (as fixed by the learned Rent Controller) within a period of eight weeks from the date of this order, before the learned Additional Rent Controller, City Small Causes Court, Secunderabad.
27. The impugned common order dated 07.08.2018 passed in I.A.No.96 of 2018 and I.A.No.97 of 2018 in R.C.No.42 of 2017 is hereby set aside. The said interlocutory applications shall stand restored to the file of the learned Additional Rent Controller and shall be disposed of upon compliance of the condition of deposit of arrears within the stipulated period. The impugned order dated 09.03.2022 in E.P.No.12 of 2018 is also hereby set aside.
28. Upon deposit of all arrears of rent within the aforesaid period of eight weeks, the learned Additional Rent Controller shall restore R.C.No.42 of 2017 to its original number and shall afford the petitioners an opportunity to file their written statement within such time as may be fixed, and shall thereafter proceed to hear and dispose of the matter on merits and in accordance with law.
There shall be no order as to costs. Any miscellaneous applications, if pending, shall stand closed.
