Excerpt
Aggrieved by the order dated 05.01.2021 passed in I.A.No.61 of 2020 in O.P.No.21 of 2007 on the file of the Cooperative Tribunal, Hyderabad, whereby the Tribunal dismissed the I.A. filed by the Petitioner to condone the delay of 321 days in applying to set aside the docket order dated 03.5.2019 in the O.P, the petitioner filed the present Writ Petition.
The Respondent herein contested the said application. The Tribunal on appreciating the material available on record, by the impugned order, dismissed the said I.A.No.61 of 2020. Hence the present Writ Petition was made and the matter was heard and decided upon by Justice T. Amarnath Goud.
Facts
The petitioner is an allottee and member of the 4th Respondent Society and that since the allotment and membership of the petitioner were at stake, he filed the O.P.No.21 of 2007 before the Tribunal seeking certain reliefs. During the proceedings, on 27.8.2010 the petitioner filed his chief affidavit. The case of the petitioner was that as there was no regular presiding officer for the Tribunal for a very long time, the matter was being adjourned from time to time and as such there was no representation on his behalf on 03.5.2019 as the junior for his counsel failed to note down the date of adjournment.
Moreover, as against an order of dismissal passed I.A.No.387 of 2007, which was filed by the 4th Respondent herein, the 4th respondent preferred W.P.No.6841 of 2008 before the High Court and that the 4th respondent used to take adjournments on the pretext of pendency of the said Writ Petition.
In that process, the O.P. was dismissed for default on 03.5.2019. There was no negligence on his part but for the reasons stated above. On coming to know that the O.P. was dismissed for default, he filed the I.A.No.61 of 2020 seeking to condone the delay of 321 days in applying for Order 9 Rule 9 of CPC to set aside the docket order dated 03.5.2019. He further stated that the Tribunal held that the delay is inordinate and beyond 10 years. The same is factually incorrect and liable to be set aside.
Arguments by the parties
There is no representation on the behalf of the unofficial Respondents though served. The 4th respondent herein filed counter and supported the order of the Tribunal. The 4th respondent contended that the actual delay is 522 days but not 321 days, as pleaded by the petitioner. He has not denied the fact that the Tribunal erred in holding the delay as 10 years and above. He further submitted that the petitioner has not explained the day to day delay properly and there are no bona fides on the part of the petitioner and hence the Writ Petition is liable to be dismissed. The 4th respondent relied on the following judgments:
1) Town Municipal Council Athani v. Presiding Officer, Labour Court, Hubli1,
2) Nityanand M. Joshi v. LIC of India,
3) Smt. Sushila Devi v. Ramanandan Prasad,
4) Sakuru v. Tanaji and
5) G.Narasimha Rao v. Regional Joint Director of School Education, Warangal.
In matters of this nature, though the delay should not be condoned mechanically or automatically, considering the facts and circumstances of the case, delay can be condoned if sufficient cause is shown.
In the present case, the dispute is about the right of the petitioner about his ownership of the plot. In general, if there is sufficient reason to condone the delay, delay can be condoned. Dismissing the cases on technical grounds of limitation would not, in any way, advance the interests of justice but admittedly, fail substantial justice.
Court’s Observation
Admittedly, the subject land in Banjara Hills, Hyderabad is a valuable land. If the O.P. is not decided on merits, the petitioner would be put to irreparable loss and hardship. But for technical reasons, the valuable right of the petitioner cannot be denied. Therefore, it cannot be said that the petitioner does not have a good case.
So, there is justification on the part of the Petitioner to plead that the matter is being adjourned from time to time at the behest of the 4th respondent and it could also be a reason to believe that the petitioner could not note down the date of adjournment, of course, maybe due to inadvertence.
It is not in dispute that usually the post of the presiding officer of the Tribunal is vacant. An additional charge is given to the Chief Judge, City Civil Court, Hyderabad for some time and for some times to the Chairman, presiding over the Sales Tax Appellate Tribunal. The City Civil Court and the Sales Tax Appellate Tribunal are far away from the premises of the Cooperative Tribunal.
About the facts and circumstances of the case, it cannot be said that the entire burden lies on the petitioner only. The petitioner has a sufficient reason to plead an excuse. The principle laid down in the judgments relied on the learned counsel for the 4th respondent, in the present set of facts, which have no application to the case on hand.
Court’s Decision
The Court is of the firm view that this is a fit case to exercise the extraordinary jurisdiction under Article 226 of the Constitution of India.
As the result, the Writ Petition is allowed, setting aside the order dated 05.01.2021 passed in I.A.No.61 of 2020 in O.P.No.21 of 2007 on the file of the Cooperative Tribunal, Hyderabad. Consequently, I.A.No.61 of 2020 stands allowed and the court also stated miscellaneous petitions if any pending in this Writ Petition shall stand closed.
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