Roop Krishan Ganjoo vs P.K.Ganjoo

This is an application for condonation of delay in filing the revision petition preferred by Roop Krishan Ganjoo (defendanttenant before the trail

court) against the order of City Judge Jammu dated 3.4.1993, whereby the defendanttenant was ordered to make payment of arrears of rent

amounting to Rs.8475/ to the respondent P.K. Ganjoo, (Plaintiff before the trial court), within a period of 15 days from the date of the order

passed by the trial court and also to deposit future rent month to month failing which his defence was ordered to remain struck off.

2, It has been avarred in the application that under the bonafide advice tendered to the defendanttenant by his counsel Mr. Anoop Koul, an appeal

was preferred before the Additional District Judge Jammu against the said order. Since the order to trial court was not appealable, the appeal was

rejected as not maintainable. It was, therefore, prayed that time spent in prosecuting the appeal under bonafide belief, be condoned, for the appeal

was preferred under the mistaken advice of the counsel for the defendanttenant, in the court of Additional District Judge, Jammu, that the delay is

of 51 days and the same is neither intentional nor deliberate.

In this regard objections were filed by the respondent/ plaintif, wherein the application has been controverted on the ground that the

defendanttenant has not filed any affidavit of his counsel Mr. Anoop Kaul to the effect that under bonafide belief he had advised the

defendanttenant to file an appeal in the court of learned Additional District Judge, Jammu. The said lawyer is an Advocate of more than 15 years

standing and is practicing in High Court as well. The mistake is not one of facts but is of law which clearly shows that neither the Advocate nor the

defendanttenant has acted with due care and caution. Although the present counsel Mr. Varinder Bhat was informed of such a defect by the

Additional District Judge, Jammu, but inspite of that the defendanttenant did not chose to withdraw the matter and pursued it till it was disposed of

on merits.

Heard learned counsel for the parties and also bestowed my thoughtful consideration over the record on the file.

Evidently, there is no affidavit filed on behalf Mr. Anoop Kaul, Advocate, who preferred the appeal on behalf of the defendanttenant in the court

of Additional District Judge, Jammu to show that such an appeal was filed under bonafide mistake, leaving apart whether or not proper or due care

and caution was exercised in filing of such an appeal. It is pertinent to make mention of the fact that the defendanttenant was closed and that civil

revision was disposed of by one of the learned Benches of this court on 3031993 saying that despite repeated calls nobody appeared for the

petitioner, therefore, the petition is dismissed for want of prosecution. No application for its restoration was preferred in this Court and in order to

create delay tactics in the matter, the petitioner/defendanttenant, preferred an appeal against the impugned order dated 3.4.1993, under the advice

of a Senior Counsel knowing that no appeal would lie against such an order before the Additional District Judge, Jammu. He spend some six

months in pursuing that appeal before the Additional District Judge and ultimately while the matter was being argued by Mr. Bhat, the present

counsel for petitioner, it was found before the Additional District Judge, Jammu, that no appeal would lie against such an order, therefore, it was

dismissed being without of jurisdiction.

The defendant is a tenant of some demised property and it is all along the effort of a tenant to protract the proceedings. The defendanttenant is

not paying the rent to the plaintiff and instead is taking recourse under different forums fo.r protection of the original matter pending disposal in the

trial court.

Learned counsel for the defendanttenant referred to AIR 1972 SC 749, AIR 1974SC 650amd 1980 JKLR 507. These authorities have no

bearing on the merits of the case in hand. Firstly, for the fact that the appeal was not filed in the court of Additional District Judge, Jammu under

some bonafide mistaken belief and the office of the Additional District Judge, Jammu was not supposed to scrutinize the matter on the legalities at

the time of presentation or even in the course of hearing of the appeal, for no dispute with regard to pecuniary jurisdiction had arisen with regard to

filing of the appeal. Secondly, the defendanttenant has, in no manner, shown any sufficient cause that under some mistaken belief he preferred an

appeal inadvertently before the Additional District Judge, Jammu and, therefore, I feel there is no reason that the Legal construction so as to

advance substantial justice could be given in the matter, that no negligence or inaction or want of bonafide is imputable to the defendanttenant. The

defendant under the advice of an Advocate preferred an appeal before the Additional District Judge, Jammu at his own choice, and he, therefore,

cannot now say that the mistake was under the bonafide belief committed by him under the advice of his counsel. There is no justifiable ground or

sufficient cause shown by the defendanttenant (petitioner herein) on account of which the delay in filing the present petition can be condoned.

The application being, therefore, not sustainable is rejected and accordingly the revision petition No. 99/93 stands dismissed.