Kanwar Bhan and ors. Vs. Karam Narain - Court Judgment

Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - 2. landlords-petitioners purchased the property from kunj bihari and bhim singh on 29th of june, 1973. after the said purchase, an ejectment application was filed by the petitioners for the ejectment of the respondent-tenant on the ground that the tenant has failed to pay the arrears of rent w.v.k. jhanji, j.1. this revision petition is directed against the order of appellate authority under the haryana urban control of rent and eviction act, 1973, (for short 'the act') allowing the appeal of the tenant and dismissing the ejectment petition filed by the landlords. the rent controller had passed an order of ejectment against the tenant.2. landlords-petitioners purchased the property from kunj bihari and bhim singh on 29th of june, 1973. after the said purchase, an ejectment application was filed by the petitioners for the ejectment of the respondent-tenant on the ground that the tenant has failed to pay the arrears of rent w. e. f. 1st of july, 1973, and that the tenant has ceased to occupy the shop since 1976. it was claimed in the said application that previously, the rent was being paid by the tenant at the rate of rs 4/- per month, but after the purchase the tenant had agreed to pay the rent at the rate of rs. 80/- per month. on the first date of hearing, the tenant tendered the rate at the rate of rs. 4/- per month. ]n his written statement, he denied that the rate of rent is rs. 80/- per month, rather he stated that right from the inception of tenancy, the rent is being paid at the rate of rs. 4/- per month, and there was no agreement with the landlord to pay the rent at the rate of rs. 80/- per month as alleged in the ejectment application. he also took up the plea that the disputed property is not a shop, but is being used as a godown right from the beginning of tenancy.3. the rent controller passed an order of ejectment against the tenant after finding that the tenant had agreed to pay the rent at the rate of rs. 80/- per month, and he having not tendered the rent at the said rate, is liable to be ejected on the ground of non-payment of rent. the ejectment was also ordered on the ground that the tenant had ceased to occupy the premises for a continuous period of more than four months the rent controller also found that the premises were let out as a shop and not as godown.4. on an appeal filed by the tenant, the appellate authority reversed the finding of the rent controller on both the counts as mentioned above. the landlords have challenged the said order of the appellate authority by way of this revision petition.5. sh. h. l. sarin, senior advocate, learned counsel for the petitioners contended that the appellate authority has not properly appreciated the evidence on record. he further contended that the property in dispute is a shop, and the rent controller rightly passed an order of ejectment against the tenant on the ground that he ceased to occupy the premises for continuous period of more than four months.6. on the other hand, learned counsel for the respondent-tenant justified the order of the appellate authority.7. after hearing learned counsel for the parties at length, i find no merit in the revision petition.8. the appellate authority after appreciating the entire evidence on record, came to a firm finding of fact that the rate of rent is rs. 4/- per month and not rs. 80/- per month as alleged by the landlords. learned counsel for the petitioners has not been able to show anything from the record so as to persuade me to take a contrary view to the one taken by the appellate authority. adverting to the second ground of tenant having ceased to occupy the premises for a continuous period of more than four months, i find that there is no trustworthy evidence on record to come to a conclusion that the premises in dispute was let out as a shop. neither there is any agreement in writing nor any document to show that the premises in dispute was being used as a shop. the report of the local commissioner submitted in another case, is not relevant at all for the decision of the present case. the local commissioner who was appointed to inspect the premises in another case, has since died and he was never examined as witness; therefore, the tenant had no opportunity to cross-examine him or to challenge his report. more so, he was appointed as local commissioner without notice to the tenant. the two persons from whom, the local commissioner made enquiries in order to reach to a conclusion that the premises in dispute are lying closed, were never examined by the landlords. in my view, the appellate authority justifiably did not take this report into consideration. apart from this report, there is no evidence worthy of any credence to prove the allegations of the landlords that the tenant ceased to occupy the premises for a continuous period of more than four months.9. consequently, i find no merit in the revision petition and the same is accordingly dismissed. however, the parties are left to bear their own costs.